Kiddie Porn Punitory

The U.S. Supreme Court last November declined to hear an appeal examining whether a person convicted of possessing child pornography can be forced to pay the full amount of restitution to a child victim depicted in the seized images even though not responsible for the initial crime.

The case arose out of a federal undercover sting operation on an Internet chat room believed to be used by pedophiles. A subsequent raid caught a defendant named Monzel in the net along with more than 800 images of child pornography on his computer. He was convicted of possessing the material and sentenced to a 10 year prison term.

Thirty children were identified by experts from among the pictures, three of whom, including a nine-year-old victim named “Amy,” filed requests for restitution under a law, known as Section 2259, passed by Congress directing the courts to order defendants convicted for crimes involving sexual exploitation of children to pay restitution to cover the “full amount of the victim’s losses.”

This punitory damages law has resulted in a wide variety of decisions within the federal judiciary over the question as to exactly what Congress intended. Amy’s lawyers requested that the judge order Monzel to pay Amy restitution in the sum of $3,263,758, even though he had nothing to do with her sexual abuse.

So the question is: should someone guilty of possessing child pornography be subject to the same potential multimillion-dollar restitution penalty as the criminal who actually physically abused the child, recorded the abuse, and distributed the resulting illicit images?

One federal district judge in Florida ordered a defendant convicted of possessing six images of a child victim to pay her full restitution totaling $3,680,153 even though the man had nothing to do with her abuse. Several other courts have similarly ruled that mere possession of illegal images can make a defendant liable for the full cost of a child victim’s injuries, including all the underlying sexual assaults and abuse.

But other federal courts in Florida, Georgia, Iowa, Maine, Minnesota, New York, North Dakota, and Pennsylvania have declined to order any restitution at all in situations where the defendant merely possessed pictures. These decisions hold that there must be evidence showing that a defendant’s conduct in possessing the illicit images was a proximate cause of the child’s injuries.

A California federal court ordered $3,000 in restitution under the law; a Virginia court, $4,500; an Indiana court, $5,448; and a Georgia court, $12,740. A Washington judge ordered $1,000 for each of 65 photos found in the defendant’s possession -- $65,000 in restitution.

Child victim advocates insist that the law requires anyone convicted of any involvement with child pornography including mere possession of pictures must be forced to pay the full amount of the child’s damages resulting from the abuse. The law should be interpreted as a powerful deterrent to pedophiles and to undercut the flourishing international trade in images of child sexual abuse, they argue.

Paul Cassell, a Utah law school professor, claims that “Congress broadly commanded that district courts must award restitution in every single case for the full amount of the victim’s losses.

More reasonable minds, including those in the Obama administration, disagree, arguing that restitution should be commensurate only with harms caused by the particular defendant. An overly broad enforcement of the law raises constitutional issues about fairness, due process, and excessive punishment, they reason.

The law doesn’t specify exactly how judges are to decide the question. The Fifth Circuit Court of Appeals has upheld the comprehensive restitution approach, the Second; Ninth, Tenth, and Eleventh Circuits have favored more targeted restitution tied to proof that actions by the defendant were the proximate cause of injuries.

Amy’s lawyers have filed more than 700 requests just in the U.S. for full restitution of more than $3 million. “I am being exploited and used every day and every night somewhere in the world by someone,” Amy said in a 2009 victim impact statement. “How can I ever get over this when the crime that is happening to me will never end? How can I get over this when the shameful abuse I suffered is out there forever and being enjoyed by sick people?”

The judge in Amy’s case rejected her request, ruling that the law authorized compensation for the harm caused by Monzel, not the total harm she suffered. He set the amount at $5,000. The appeals court reversed the $5,000 award and remanded the case back to the judge to determine an appropriate level of restitution that reflected the actual harm done to Amy by Monzel’s possession of the images of her being abused.

Her appeal to the U.S. Supreme Court, as indicated above, was denied.

Few reasonable people would argue least of all me that victims of child sexual abuse were injured and deserve damages for their suffering and humiliation – from the criminal; the abuser who caused the damage – not from those who merely looked at the pictures.

To argue or hold otherwise is patently insane. It’s like holding a person fully responsible for a murder for merely looking at a picture of the victim after the fact. By that reasoning the police who seized the porn pictures, the prosecutor, judge, jury, experts and anyone else who looked at them during the trial process should likewise pay the full amount of restitution.  

This is just another example among many of the collective irrational hysteria over “thought crimes” which cause no harm whatsoever to victims, but somehow offend the Authority’s sense of morality.

The idea of forcing someone to pay punitory damages in the millions of dollars for merely looking at pictures of criminal activity – kiddie porn punitory -- crosses way over the line of what is right and what is wrong.