By Zachary Margulis-Ohnuma
Federal law provides that people who are convicted of possession or distribution child pornography must pay restitution to the victims depicted in the images. The goal of restitution generally is to make up for the harm suffered by the victim. Courts have struggled with what that means in the child pornography context, where the connection between the defendant (i.e. the person who possesses the image, usually downloaded from the Internet) and the victim (the person in the picture, who has been sexually abused) is distant. Some victims have energetically sought restitution from dozens of defendants whom they never met, but who had their pictures.
Some judges have imposed joint-and-several liability on all defendants, meaning anyone possessing a picture has to pay the full amount of the victim’s losses, which can be millions of dollars. Others have limited restitution to harm caused directly by the defendant, which in many cases is none since the victim and the defendant have never met. Most courts have adopted a rule of “proximate cause,” a concept that has a long history in American (and English) law and means that the defendant must pay for the actual harm he caused, but not for harm caused by others.
The Supreme Court today in Paroline v United States came down on the side of proximate cause. But it also found that an individual defendant contributes to the victim’s psychological harm by participating in the “continuing traffic in the victim’s images.” Acknowledging that figuring out how much harm was caused by any particular possessor of child pornography, the Supreme Court provided “guideposts” for judges to use in determining restitution in child pornography cases. To start, the judge should determine the amount of the victim’s losses caused by traffic in her images and “then set an award of restitution in consideration of factors that bear on” how much of the harm the defendant himself caused. Some of the factors are (1) the number of past criminal defendants who added to the victim’s losses; (2) a predictions of how many future offenders are likely to be caught and convicted for crimes contributing to the victim’s loss; (3) an estimate of how many people had the pictures; (4) whether the defendant copied or sent out images of the victim; (5) whether the defendant produced the images in the first place; and (6) how many pictures of the victim the defendant possessed.
As a practical matter, restitution has rarely been an issue in federal child pornography cases. People who find themselves accused of child pornography are frequently exposed to long prison sentences and penniless when they come out. Victims usually want to put their past behind them and are aware that the real culprits are the abusers who created the images in the first place, not hapless computer users who happen upon them. It remains to be seen whether the decision in Paroline, which appears difficult to apply in any event, will change any of that.