Written by: Allyson Swecker

Member, American Journal of Trial Advocacy

Child pornography accounts for massive amounts of child sexual abuse in the United States. Specifically, the National Center for Missing and Exploited Children has reviewed over 172 million images and videos relating to child pornography and has helped law enforcement identify more than 10,000 individual victims.[1] One question plaguing the United States today is whether the victims of child pornography acquire adequate restitution under current legal efforts.[2] Due to the lasting effects that widely-circulating pornography images and videos create for victims, restitution seems like one obvious method of achieving closure for the victims. Most recently, the Supreme Court analyzed this very question in the 2014 case of Doyle Randall Paroline v. United States.[3]

The victim depicted in the images for which Doyle Randall Paroline was prosecuted, a young woman with the pseudonym “Amy” for the purposes of anonymity, was sexually abused by her uncle when she was eight and nine years old.[4] Her uncle recorded the abuse and created child pornography, an offense for which he ultimately pleaded guilty and received a prison sentence and a fine of $6,000.[5] The images of Amy’s abuse were available around the world to anyone with the ability to download them onto a computer, and the knowledge of this widespread availability of these images was detrimental to Amy’s trauma recovery.[6]

The abuse of child pornography victims continues throughout their lives. Although the physical abuse has ended, the images and videos remain on the internet forever. Additionally, even if the images and videos can be successfully removed from the internet, the people who have downloaded the videos and images can continue to view the images and videos over and over. In this particular case, Paroline was only one of many individuals possessing of the images of Amy’s abuse.[7]

Generally, the simplest way to prove causation is to show that, but for the actions of the defendant, the plaintiff-victim would not have suffered any losses. The Court in the Paroline case determined that this showing would satisfy the relevant statutory requirements but, unfortunately, would not be possible in this particular case.[8] Because there was no way of determining how many offenders actually possessed or viewed the images and videos of Amy, the Court would have an incredibly difficult time determining the percentage of Amy’s emotional and psychological suffering caused specifically by Defendant Paroline’s personal possession of the images.[9] Therefore, in this case and countless others like it, the Court needed to find a way to determine how much of Amy’s losses Paroline alone would be legally responsible for. The Court in Paroline believed it was important to “impress upon offenders that their conduct produces concrete and devastating harms for real, identifiable victims.”[10] It is important to make explicit to offenders that possession of child pornography is not a victimless crime.[11]

In the 1982 Supreme Court case of New York v. Ferber,[12] the Court noted that when an abuser creates pornography of a child, the pornography may haunt the child “in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography . . . . It is the fear of exposure and the tension of keeping the act secret that seem to have the most profound [ ] repercussions.”[13]

This creates substantial issues in determining how long the pain and suffering will continue, and how many people might possess the images or videos is nearly impossible to quantify. The Supreme Court in Paroline did not question whether victims of child pornography deserve restitution, they simply struggled to find the right equation as to how to compute the restitution owed by each individual defendant.

Justices Roberts, Scalia, and Thomas agree that Amy should be paid restitution and that Congress intended this by making child pornography victims restitution mandatory.[14] In contradiction to the majority opinion however, the dissenters believe that the form of the statute[15] enacted by Congress determining what amount of restitution is due to the victim, prevents Amy from receiving restitution in this particular case altogether.[16] The dissenters maintain the viewpoint was that Congress should have created a specific statute that was tailored to child pornography cases, but instead they chose a generic statute for restitution that requires the government to prove, “by the preponderance of the evidence,” “the amount of the loss sustained by a victim as a result of” the crime.[17] Unfortunately for Amy, Justice Roberts believes that it would not be possible to determine a concrete amount of restitution for Paroline to pay, and the Court would have had to choose an arbitrary number for the two images he possessed.[18] According to these justices, “arbitrary is not good enough for the criminal law.”[19]

Child sexual abuse is a heinous crime, even without the added emotional damage caused by recording and distributing the abuse. Victims of child sexual abuse and child pornography are clearly entitled to restitution. Efforts that have been made in this area are a good beginning,[20] but Congress and the courts must find a way to ensure that the victims have been given what they are due. Unfortunately, financial restitution will never be enough given the psychological pain caused by these senseless crimes.

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[1] National Center for Missing & Exploited Children, http://www.missingkids.com/KeyFacts (last visited Mar. 4, 2017).

[2] See generally Emily Bazelon, The Price of a Stolen Childhood, The New York Times Magazine, (Jan. 24, 2013), http://www.nytimes.com/2013/01/27/magazine/how-much-can-restitution-help-victims-of-child-pornography.html?hpw&r=l&.

[3] 134 S. Ct. 1710 (2014).

[4] Paroline, 134 S. Ct. at 1717.

[5] Id.

[6] Id. (acknowledging the victim’s continuous trauma from this perpetual crime).

[7] Id. at 1717.

[8] Id. at 1722.

[9] Id. at 1723.

[10] Id. at 1727.

[11] Id.

[12] 458 U.S. 747 (1982).

[13] Ferber, 458 U.S. at 759 n.10.

[14] Paroline, 134 S. Ct. at 1730 (Roberts, J., dissenting).

[15] 18 U.S.C. § 3664(e) (Effective Nov. 2, 2002) (“Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by [the] victim as a result of the offense shall be on the attorney for the Government.”).

[16] Paroline, 134 S. Ct. at 1730 (Roberts, J., dissenting).

[17] Id. (Roberts, J., dissenting) (internal quotations omitted).

[18] Id. (Roberts, J.,dissenting).

[19] Id. (Roberts, J., dissenting).

[20] See United States v. Rogers, 758 F.3d 37, 38-39 (1st Cir. 2014) (holding that the district court’s order that the defendant pay restitution to the victim in the amount of $3,150 was consistent with the Court’s holding in Paroline); see also United States v. Massa, 647 Fed. App’x 718, 721 (9th Cir. 2016) (“a victim’s ‘general losses’ include all losses stemming from the traffic in his or her images”); United States v. Hite, 113 F. Supp. 3d 91, 96-97 (D.C. Cir. 2015) (applying the Paroline factors to determine the appropriate restitution amount to which the victims were entitled).