Supreme Court to decide case on harm by porn

The decision on how actual harm is determined could mean the difference between a victim being compensated or getting nothing

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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 of sexual abuse on the Internet.

The decision on how harm is calculated could mean the difference between a victim being compensated -- or made whole -- for the injuries suffered, or receiving nothing at all.

While the issue has been raised here in the Western District of Pennsylvania and in federal courts across the country for five years, it is only now that the U.S. Supreme Court will weigh in.

The high court agreed late last month to hear the case involving "Amy," who had been sexually abused by her uncle at the ages of 8 and 9. He photographed that abuse and distributed the images online starting in 1998, as part of what is known as the "Misty" series. The Post-Gazette does not name 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 separate criminal cases since then.

Amy, with the help of an attorney, began filing requests for restitution in Sept. 2008 against defendants convicted of possessing images of her. Now in her early 20s, 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 to cover costs of treatment and lost wages -- has been granted. But in others, Amy has been awarded nothing.

The legal question in this case turns on a single phrase.

Congress passed the Mandatory Restitution for Sexual Exploitation of Children Act of 1994 declaring 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 costs for:

• 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; and

• any other losses suffered by the victim as "a proximate result of the offense."

That very last phrase, "as a proximate result of the offense," is the linchpin on which the entire issue turns. It means a direct causal link between the offense and the loss suffered.

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 goal of restitution is not about the defendant," said one of Amy's attorneys, James Marsh, during a lower court hearing on Paroline. "It is about [making] the victim whole, restoring the victim to the place she would have been if the crime had not occurred, and clearly the defendant engaged in this crime, and the crime of conviction is possession, and that is what we are here about."

But Paroline's attorney, Fred Files Jr., responded by asking what harm his client caused.

"He can't quantify it. He can't define it. He can talk in generalities until the cows come home, but he cannot say that Doyle Paroline's conduct caused specific harm which he can quantify for the court in this case."

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 in restitution, although the case later ended with an agreed-upon 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, again, 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 of those cases have been rejected on appeal or are still pending.

She has collected $1.6 million.

But in the current 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, in an en banc decision issued in November, 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.

Stanley Schneider, who will represent Paroline at the Supreme Court, said that he and Paul Cassell, the attorney representing Amy, worked hard to develop one of the strongest records possible to get the case to the high court.

"The Supreme Court is going to have its work cut out for it, Mr. Schneider said. "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 even 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?

"It defies all basic tenets of criminal law."

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

"If she requests notification, she's causing harm to herself," he said. "It's real, I'm not trying to demean it."

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

Further, Mr. Schneider suggested that the court will have to determine, if restitution is allowed, how it should be collected -- both theoretically and logistically.

"There has to be some proportionality," Mr. Schneider said. "Is a person who possesses 1,000 images more liable than someone who has one image?"

Attorneys for Amy have argued that she is not seeking to double-dip -- or collect more than she has asserted as her losses.

Once she has collected the $3.4 million she has asked for, Amy would stop filing for restitution, they have said.

The attorneys argue that the restitution would be "joint and several" among all defendants, meaning that each defendant is responsible for the full amount until Amy is made whole.

But, in terms of actually collecting restitution from so many defendants in so many jurisdictions, the Administrative Office of the United States Courts has said the task would "prove onerous."

In a 13-page letter dated Aug. 17, 2009, from the office to the clerk of courts in the Paroline case, assistant general counsel Joe Gergits wrote: "[I]t would be highly impractical if not impossible for a clerk to track debt payments in multiple jurisdictions over an extended period of time to insure that a ... victim does not receive windfall restitution payments."

As of May, only eight other victims have sought restitution for child pornography possession, according to the government.

While Paroline has already completed his two-year prison term for possession of child pornography, he must still serve 10 years of supervised release.

He wanted to appeal the issue of restitution, Mr. Schneider said, because the prospect of paying millions over his lifetime is overwhelming.

"You're looking at now and forever, you can't do anything," his attorney said. "You've been to prison and trying to build a new life, and how do you do that with a $3.4 million judgment against you?"

One of the most difficult things about this case, Mr. Schneider said, is the moral questions.

"These are very tough, tough emotional issues," Mr. Schneider said. "There are people who are very seriously injured by this criminal conduct."

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Paula Reed Ward: pward@post-gazette.com or 412-263-2620.


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