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Published: Sunday, 7/7/2013

High court to decide who owes restitution to child porn victims

Woman filing against men who viewed images years later

BY PAULA REED WARD
BLOCK NEWS ALLIANCE

PITTSBURGH — It is self-evident that a child is harmed during the creation of child pornography.

But it is less clear if that person is harmed years later when someone views those images on the Internet.

The decision on how harm is calculated could be the difference between a victim being compensated or receiving nothing at all.

The issue has been raised in the Western District of Pennsylvania and in federal courts across the country for five years, but now the U.S. Supreme Court will weigh in. The high court agreed late last month to hear the case involving “Amy,” who was sexually abused by her uncle at the ages of 8 and 9. He photographed that abuse and distributed the images online starting in 1998.

The Block News Alliance does not identify victims of sexual abuse; Amy is the name used in court documents for the victim.

According to the National Center for Missing and Exploited Children, more than 35,000 pornographic images of Amy have been found in 3,200 criminal cases since.

Amy began filing requests for restitution in September, 2008, against defendants convicted of possessing images of her. She has made similar filings in every U.S. district court in the country.

But the rulings have been split. In some districts, restitution of the full amount she is seeking — $3.4 million — has been granted. But in others, Amy has been awarded nothing.

The legal question turns on a single phrase.

The Mandatory Restitution for Sexual Exploitation of Children Act of 1994 declares that a person harmed as a result of child pornography shall be paid by the defendant “the full amount of the victim’s losses,” which include:

■ Medical services relating to physical, psychiatric, or psychological care.

■ Physical and occupational therapy or rehabilitation.

■ Necessary transportation, temporary housing, and child-care expenses.

■ Lost income.

■ Attorneys’ fees, as well as other costs incurred.

■ Any other losses suffered by the victim as “a proximate result of the offense.”

The issue turns on the phrase “as a proximate result of the offense.” It means a direct causal link between the offense and the loss.

Defense attorneys for Doyle Paroline, a defendant from the Eastern District of Texas whose case will go to the Supreme Court, argue that victims of child pornography must be able to prove the losses they suffered were the “proximate result” of their individual clients’ viewing online images of them taken when they were young children.

But the attorney for Amy says that the phrase “proximate result” should only apply to the last subsection for “any other losses,” because the phrase does not appear in any other part of the list of losses in the statute.

The question of restitution has been brewing since Amy filed her first request against a man convicted of possession in Connecticut.

That defendant, a British foreign national who was the vice president of global patents for Pfizer and a millionaire, was the first test case.

The judge in the district court there awarded $200,000, although the case later ended with a settlement among the parties.

In the case in the Western District of Pennsylvania, a defendant named Kelly Hardy was also ordered by U.S. District Judge Nora Barry Fischer to pay restitution. Ultimately, the parties reached an agreement for Hardy to pay $1,000.

As of May, restitution for Amy has been ordered in 174 cases, ranging from $100 to $3.5 million, although some cases have been rejected on appeal or are pending. She has collected $1.6 million.

But in the case involving Paroline, the district court judge in Tyler, Texas, said he did not have to pay restitution because the government failed to show the specific harm caused to Amy by the man viewing her images.

“Certainly, Amy was harmed by Paroline’s possession of Amy’s two pornographic images, but this does little to show how much of her harm, or what amount of her losses, was proximately caused by Paroline’s offense,” wrote U.S. District Judge Leonard Davis. “There is no doubt that everyone involved with child pornography — from the abusers and producers to the end-users and possessors — contribute to Amy’s ongoing harm.”

While the judge said he was sympathetic to what Amy has experienced — and will throughout her lifetime — that is not enough to dispense with the “proximate cause” requirement.

However, the 5th U.S. Circuit Court of Appeals overturned Judge Davis, writing that the proximate cause requirement applies only to the last category to the last subsection, “any other losses suffered by the victim.”

The 5th Circuit, though, is the only circuit in the country to have found that way.

Ten other circuits have ruled against restitution.

“The Supreme Court is going to have its work cut out for it,” said Stanley Schneider, who will represent Paroline at the Supreme Court. “You have all these underlying issues that need to be discussed.”

One of the most obvious to him as to whether his client should be liable for any payment, Mr. Schneider said, is the timing of his arrest. Amy had already created her restitution model — and submitted requests in a number of jurisdictions — before Paroline was arrested in January 2009.

“It’s an interesting anomaly,” Mr. Schneider said. “How can someone be liable for [harm that occurred] before you committed your criminal act?”

Additionally, Mr. Schneider argues that Amy suffers harm from the viewing of her images only because she requests notification when defendants are arrested for possessing them.

But, he continued, it is her perception that causes any ill effects, not that a defendant viewed it.

Attorneys for Amy have argued that she is not seeking to collect more than she has asserted. Once she has collected $3.4 million, Amy would stop filing, they have said.

The Block News Alliance consists of The Blade and the Pittsburgh Post-Gazette. Paula Reed Ward is a reporter for the Post-Gazette.

Contact Paula Reed Ward at:

pward@post-gazette.com

or 412-263-2620.



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