Slow acid drips and evidentiary nightmares: smoothing out the rough justice of child pornography restitution with a presumed damages theory.

Author:Giannini, Mary Margaret
Position:III. Slow Acid Drips: Reframing Victim Harm Through a Privacy and Defamation Analogy B. A Right to Privacy through VI. Conclusion, with footnotes, p. 1749-1776

Courts have easily recognized that the creators of child pornography inflict a great amount of harm on their victims. (147) Courts also acknowledge that an end receiver's possession of images that document child sexual abuse (148) causes additional harms to the children depicted in the material. It is this latter harm which many courts have intimated is analogous to, if not directly related to, the civil torts of invasion of privacy and defamation.

The Supreme Court has explicitly noted that possessors of child pornography invade children's right to privacy and their interest in avoiding the disclosure of personal matters. (149) Victims of child pornography possession must spend their lives living with the reality that their images are in constant circulation and being viewed by countless strangers. (150) Unless and until victims can be assured that all their images have been removed from circulation and destroyed, they suffer from the perpetual emotional and psychic harm that some of the most terribly intimate and abusive moments of their lives are subject to the peering eyes of others. (151) Victims suffer further from the fear of exposure and identification while simultaneously laboring under the stress of attempting to keep the fact of their abuse secret, or at least, private. (152) Finally, victims' reputational interests are undermined by the distribution and possession of child pornography. (153) As the Supreme Court noted in Ashcroft v. Free Speech Coalition, "[1]ike a defamatory statement, each new publication of the [image causes] new injury to the child's reputation and emotional well-being." (154) Hence, with each new defendant's downloading and viewing of images of child sex abuse, people such as Amy and Vicky are subject to a slow acid drip of harm. The private and violative moments of the victim's abuse are exposed repeatedly to others; victims run the risk of being specifically identified as an abuse victim--a fact they might otherwise want to keep private-and victims are subject to the possibility that those viewing the images of their abuse will draw negative inferences about the victim in terms of his or her interest in engaging in additional sexually explicit activity. For each of these types of harms, direct corollaries can be drawn to the torts of intrusion on seclusion, (155) publicity given to private facts, (156) and false light and defamation. (157)

  1. Intrusion on Seclusion

    The tort of intrusion on seclusion is generally described as:

    One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. (158) The Restatement further indicates the focus of this tort is the intentional interference with a plaintiff's interest in solitude or seclusion, (159) Prosser suggests the primary interest protected by this tort is mental, in that it serves to protect an individual from the distress that arises when one's seclusion or solitude is unreasonably interfered with by another. (160) Others have suggested the interest is far broader and serves to protect one from an affront to personal dignity.

    Eavesdropping and wiretapping, unwanted entry into another's home, may be the occasion and cause of distress and embarrassment but that is not what makes these acts of intrusion wrongful. They are wrongful because they are demeaning of individuality, and they are such whether or not they cause emotional trauma. (161) Primary examples of this tort include the peeping tom, the overzealous reporter or paparazzi, or the use of surveillance methods to observe or listen to another in situations in which one would otherwise expect privacy. (162)

    Easy comparisons can be drawn between the tort of intrusion on seclusion and the harms suffered by victims of child pornography possession. The tort is designed to protect individuals from prying into the emotional, physical and special spaces of others that are meant to be private. For example, in Phillips v. Smalley Maintenance Services, Inc., (163) the court determined that an employer's intrusive questions regarding the details of an employee's sexual relationship with her husband satisfied the elements necessary for an intrusion upon seclusion claim. (164) The court noted that fundamental rights such as marriage and sexual issues were that which warranted privacy protection. (165)

    Like marriage and sexual issues, courts have also noted "[o]ne's naked body is a very private part of one's person and generally only known to others by choice. This is a type of privacy interest worth protection." (166) In Hill v. McKinley, (167) an arrestee was strapped face down, naked, and spread eagled on a restraining board for over three hours. (168) The court easily determined the defendants' actions were "an unreasonable and highly offensive intrusion" upon the arrestee's privacy. (169) The same was true in Hutchinson v. West Virginia State Police. (170) There, in the course of a police raid, a woman was dragged naked from her shower, and "forced to remain nude, in plain view of eleven men, for 30 to 45 minutes, without any reasonable justification for such nakedness." (171) The court ruled "such an intrusion would, plainly, be highly offensive to a reasonable person." (172)

    In the Hill and Hutchinson cases, the plaintiffs' private vulnerabilities were exposed to others. However, courts have emphasized it is the mere intrusion, and not any further publication or transmission of the private information about the plaintiff, which gives rise to a claim of intrusion upon seclusion. While the tort does focus on the privacy and seclusion of the plaintiff, the tort is particular in that it "protects against acts that interfere with a person's mental well-being by intentionally exposing the person in an area cloaked with privacy." (173) Therefore, courts have recognized the tort of intrusion upon seclusion even in cases where secret cameras were installed in bathrooms but there was no evidence that the defendants actually viewed the tort claimants' private activity. (174) As noted by one court, "[c]learly, plaintiff and her daughter ... had a right to privacy in the public restroom in question. In our opinion, the installation of the hidden viewing devices alone constitutes an interference with that privacy which a reasonable person would find highly offensive." (175)

    Courts have also been willing to recognize a violation of the tort in cases where the private activity which was viewed by the tortfeasor might otherwise be deemed innocuous. The ten second video-taping of a pregnant women in her kitchen in her pajamas (176) and the secret taping of an estranged wife's simple "comings and goings" in her bedroom (177) both constituted intrusions into their seclusion. Similarly, in a case where the defendants trespassed on the plaintiff's otherwise very secluded property in order to gather surveillance information about the plaintiff's "daily routine ... and to see what time [he] got home," (178) the court found there was a violation of the protection against intrusion into seclusion. In these cases, the courts focused more on the interference with the tort plaintiff's mental well-being, rather than the nature of the intrusion. It was that the plaintiffs felt "appalled ... shocked, and angered," (179) "violated," (180) and "humiliated," (181) that prompted courts to reach conclusions that the tort of intrusion upon seclusion had been violated.

    A very direct parallel can be drawn between the Nebraska intrusion on seclusion case of Sabrina W. v. Willman, (182) and the Amy/Vicky line of cases. In Sabrina W., the defendant had a tanning room at his salon. He had constructed the tanning room in such a way that he was able to view any occupant in the room without the occupant's knowledge. The defendant viewed and photographed the plaintiff on several occasions, and in various stages of undress, all without her knowledge. (183) Upon learning the defendant had watched and photographed her, the victim testified that she was "shocked, humiliated, and embarrassed and that she felt degraded by the matter." (184) When the police showed her the photographs the defendant had taken of her, she cried. (185) Based on these facts, the court ruled there was ground for the plaintiff to assert her right to be free from intrusion into her private life had been violated by the defendant. (186)

    Individuals found in possession of the child abuse images of Amy and Vicky could easily be deemed to have intruded upon the seclusion of these two young women. (187) Like the defendants who pried into a plaintiff's marital intimacies with her spouse, viewed plaintiffs in a state of undress, or merely viewed or attempted to view plaintiffs in their homes or bathrooms, child pornography possessors are also voyeurs. They are "peeping toms" who have peered into the windows of Amy and Vicky's lives at some of their most vulnerable and horrible moments. Amy has commented she is "frightened that someone may recognize her and expose her as being [the] child" in the Misty series. (188) Amy's doctor further noted that "'Amy is clear that there has been a resurgence of the trauma with her ongoing realization that her image is being traded on the [I]nternet,' giving rise to feelings of 'fear of discovery...." (189) Similarly, Vicky has stated

    When I learn about one defendant having downloaded the pictures of me, it adds to my paranoia, it makes me feel again like I was being abused by another man who had been leering at pictures of my naked body being tortured, it gives me chills to think about it. I live in fear that any of them[] may try to find me and contact me and do something to me. (190) Therefore, in drawing a connection between the tort of intrusion on seclusion and the harm suffered by victims of child...

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