We hate that we’re covering this case, as the matter is a highly disturbing topic – restitution for the victims of child pornography. Full disclosure: We work for kids. They’re our “clients,” if you will, as we are educators. No teacher treads lightly or indiscriminately through a case involving sexual abuse of children. We’re guessing no human does, either. In the SCOTUS (January 22, 2014) was a case involving such abuse, Paroline v. U.S. Despite its unsettling nature, we see this case as having potential for “teachable moments” to young adults in law classes.
5-cent explanation: Doyle Paroline was found guilty of accessing two pictures of a victim of child pornography known as “Amy Unknown.” Amy was eight years old when her uncle took sexually explicit pictures of her. In 1994, Congress passed a law mandating the victims of child pornography be paid the full amount of their losses from anyone found guilty of possessing their images. A lower court ordered Paroline pay Amy $3.4 million dollars in restitution, or money for a loss or injury. The question before the Court is how enforcement of the law should allocate money to the victims.
10-cent explanation: Amy Unknown, with her attorneys, alleges she suffers “death by a thousand cuts” every time pornographic images of her as a child are accessed online. Amy is in her 20s and has spent years in therapy, is unable to maintain employment due to her heightened anxieties, and knows these images are still on the internet for people to view at any time. The pictures are some of the most widely viewed images of child pornography in the world. “They have figured in some 3,200 criminal cases since 1998.” (Source: NYTimes)
Under the 1994 law, a victim of such a crime is owed restitution by anyone convicted of making, possessing, or distributing pornographic images. Not only does it protect the most vulnerable population of people – children – from experiencing heinous crimes like sexual exploitation, it also attaches a financial penalty severe enough to potentially deter adults from ever committing such crimes, one that no judge can overrule for reasons like financial hardship. Amy sued in a Texas district court demanding Paroline pay her $3.4 million in restitution. Paroline’s defense said it was “grossly disproportionate” to expect him to pay $3.4 million dollars for possessing two images of Amy when it was Amy’s uncle, not Paroline, who took and distributed the pictures. Amy’s uncle was found guilty in court, sentenced to 12 years in prison, and ordered to pay roughly $6,000 in damages. The district court agreed with Paroline and ordered him to pay nothing.
Amy’s defense appealed and the U.S. Court of Appeals for the 5th Circuit in New Orleans agreed with her ruling ordering Paroline to pay the full amount due to a piece of legal doctrine called “joint and several liability.” This doctrine says if Paroline can’t pay the full amount then he and his attorneys can go find the other thousands of criminals who viewed Amy’s pictures to shoulder the debt for the misery each viewing costs her. This shifts the burden from the victims to the criminals to do the legal legwork and recover the damages.
But it’s a controversial legal idea, one that the Department of Justice address during oral arguments in the SCOTUS. While the DoJ agrees victims like Amy deserve damages, allocation of that payment should be reasonable and established at the district court level in an amount that is somewhere between “all or nothing.” In their opinion, joint and several liability for all victims of sexual abuse “has no statutory support, is practically unworkable, and may be fundamentally unfair.” Ultimately, locating and convicting thousands of online sex criminals, then determining how much each should have to pay to the victims might be a procedural nightmare.
The Court is asked to weigh in on the enforcement of Congress’ 1994 law and decide if and where a sweet spot is between “all or nothing” in damage awards for the victims of sexual child abuse. While it’s not a matter of deciding what’s fair to Paroline, this case has more to do with making sure crime victims attain restitution by testing the language articulated in the law. It’s pretty clear that the “mandatory restitution” clause repeatedly states the “full amount” be paid by the defendant:
So far, eight appeals courts have heard challenges akin to Paroline’s, and only the 5th Circuit agreed with Amy’s “theory of recovery.”
This case is emotional, raw, and hits home as it involves kids not much younger than our students. It sets up teachable moments when students who debate or moot this case must do the same thing adults do – put the emotional component aside, as hard as it is to do – look to the law to test the scope and question in this case. Second, it’s a worthwhile skill and endeavor that serves opportunities to recall connections to Federalism, checks and balances, and philosophical versus practical applications of law.
We liked these links on the case: Liptak’s piece from NYTimes, Brooke Adams piece from the Salt Lake Trib, and Emily Bazelon’s piece in which she interviewed Amy Unknown.
Decision: On April 23, 2014 the Court issued a 5-4 ruling in favor of Doyle Paroline. In short, the majority opinion, authored by Justice Kennedy and an atypical majority – Ginsburg, Breyer, Alito, and Kagan – found the punishment did not fit the crime. Yes, it’s a horrible, horrible crime that was and continues to be inflicted upon Amy Unknown when pictures of her sexual abuse are viewed on the internet. This Court, and most of mankind, agree upon this. Amy’s, and other children, victimization was a horrific human and emotional crime that her uncle brought upon her. While accountability is paramount to righting this injustice, the majority found the scope of the statute that can force the individuals who accessed pictures of Amy to pay hundreds of thousands or millions of dollars is too broad. “First, this case does not involve a set of wrongdoers acting in concert, for Paroline had no contact with the overwhelming majority of the offenders for whose actions the victim would hold him accountable. Second, adopting the victim’s approach would make an individual possessor liable for the combined consequences of the acts of not just 2, 5, or even 100 independently acting offenders; but instead, a number that may reach into the tens of thousands.” (Opinion here)
We live in a digital age where any image, video, or piece of media is out there to meet our desires. For the most part, this is an empirically good thing. But this case reminds us of the dark, terrifying underbelly of the internet which avails the same opportunities to predatory monsters whose target media can only be described as nightmarish. Punishment is due to such monsters who prey on children, however, Congress is going to have to go back to the drawing board to narrowly tailor the restitution due to victims of sexual abuse. In their dissent, Justices Roberts, Scalia, and Thomas said “Instead of tailoring the statute to the unique harms caused by child pornography, Congress borrowed a generic restitution standard that makes restitution contingent on the Government’s ability to prove, “by the preponderance of the evidence,” “the amount of the loss sustained by a victim as a result of” the defendant’s crime. When it comes to Paroline’s crime — possession of two of Amy’s images — it is not possible to do anything more than pick an arbitrary number for that “amount.” And arbitrary is not good enough for the criminal law.” And Sotomayor, in her own separate dissent wrote “Congress might amend the statute…In the meanwhile, it is my hope that the Court’s approach will not unduly undermine the ability of victims like Amy to recover for — and from — the unfathomable harms they have sustained.”