Justices consider: Must those who view child porn pay millions in damages?

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WASHINGTON -- The rapes captured on film happened 16 years ago, but the child in the photographs is still being victimized each time someone downloads the graphic images of her uncle's sexual assaults.

Lawyers representing the Pennsylvania woman known in court documents as "Amy Unknown" want her and others like her to be able to more easily collect monetary damages from people who have viewed their images.

They made their point Wednesday before the U.S. Supreme Court in a case that involves Doyle R. Paroline, a Texas man appealing a court order holding him responsible for the full amount of Amy's damages -- about $3.4 million -- for thousands of others who had viewed two graphic images of her.

The court is being asked how to apportion responsibility for compensation in child pornography cases when there are numerous defendants.

First, the justices must determine whether the act of simply viewing child pornography directly causes enough injury to trigger mandatory restitution called for in a 1994 federal law; the law requires restitution for pornographers whose crimes caused "proximate harm."

Three attorneys offered widely varying approaches, but the justices didn't seem to like any of them.

"One of the challenges is taking some very traditional legal principles and applying to a new crime [involving] the Internet. ... That is a real practical problem that the court has not really encountered before," said James R. Marsh, a White Plains, N.Y., attorney who has represented "Amy" in several restitution filings, including one in Pittsburgh.

In that case, Kelly Hardy of New Castle had been sentenced to 30 years in prison for possession of vast amounts of child pornography, including images of Amy. Hardy paid $1,000 in restitution to Amy.

That case is now closed and will be unaffected by the Paroline decision.

According to Supreme Court filings, Hardy's is the only "Amy" case heard in the U.S. District Court for the Western District of Pennsylvania. The Eastern District, however, has adjudicated six child pornography cases involving photos of Amy. In those cases, restitution ranged from $1,000 to $2,500.

In 175 other cases in other states, awards have ranged widely from $50 to $3.5 million.

With many defendants appealing and others unable to pay, Amy has collected about $1.75 million so far. She wants the full $3.4 million -- the cost of ongoing therapy, lost wages and attorney fees.

"We're not asking for double recovery. Amy simply wants to be made whole," one of her attorneys, Paul G. Cassell of Utah, told the justices Wednesday. That's what Congress intended when it passed the 1994 law, he said.

The first defendant who is able to make restitution must do so, he said. Then it's up to that defendant to use legal channels to recoup some of the money from subsequently convicted defendants, Mr. Cassell said.

"Congress wanted those burdens on criminal defendants, rather than innocent victims," he argued.

Justice Stephen Breyer expressed concerns.

"You don't make a person pay for what he didn't cause," Justice Breyer said. "This is restitution. This isn't fines."

Texas attorney Stanley G. Schneider, who represents Paroline, argued that the harm to Amy came at the hands of her uncle, not his client.

The link to Paroline is too remote and too tenuous to have caused enough harm to warrant any restitution order at all, he argued.

"There has to be some evidence that ties the losses to the conduct," he said.

Justice Antonin Scalia said there is a connection.

"This woman has gone through psychological harm because of the knowledge people are viewing her rape. Why isn't your client responsible for that? [Why] can't she recover something from him?" he asked.

How much he should pay is another matter.

"To sock him for all of her psychological costs and everything else because he had two pictures of her? Congress couldn't have intended that," Justice Scalia said.

Mr. Cassell isn't so sure. He argued that Paroline should have to pay the full $3.4 million.

Justice Ruth Bader Ginsberg noted that the uncle who raped Amy, photographed the assaults and distributed the pictures was ordered to pay only $6,000 in restitution.

"It seems that the possessor of two images should not be responsible for more than the person who perpetrated this horrendous crime," Justice Ginsberg said.

Michael R. Dreeben, deputy solicitor general for the United States, argued that restitution should be apportioned among the numerous defendants -- including those who haven't been arrested and even those who haven't yet committed their crimes.

That's not feasible, argued Mr. Cassell, a former federal judge. "We don't know if there are going to be convictions next year or the year after," he said.

If the court adopts Mr. Dreeben's arguments, Amy would be dragged through years of litigation in jurisdictions across the country, Mr. Cassell said. "It will take years and years and there's no certainty she'll ever get the psychological counseling costs she desperately needs," he said.

Numerous advocacy groups filed amicus briefs asking the court to uphold the 5th U.S. Circuit Court of Appeals ruling against Paroline in New Orleans. They argue that the threat of a significant financial judgment could deter people from viewing child pornography. And, they say, large judgments are necessary to compensate victims for ongoing harm made by possible by the Internet.

"Most crimes have a beginning, middle and an end, but this is the kind of criminal activity that continues on forever. It has no limitation," Mr. Marsh said in an interview.

Amy made that clear in a victim impact statement she wrote five years ago. In it, she described some of the abuse she endured at the hands of her uncle, Eugene Zebroski.

"Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them -- at me -- when I was just a little girl being abused for the camera," she wrote. "The crime has never really stopped and will never really stop."

Amy is 24 now and now living in rural Central Pennsylvania. Her attorneys said she was in the courtroom for Wednesday's arguments, but she was not identifiable in the nearly full courtroom.

"She finds these proceedings both stressful and vindicating," Mr. Marsh said after court adjourned. "She's grateful for the court's attention. She's grateful that this issue is being decided, and she's hopeful that this can set a precedent for other victims like her."

If the court rules in favor of Amy, restitution amounts would likely rise because each defendant convicted of viewing child pornography would be deemed to have caused proximate harm.

It is unclear when the court will issue an opinion in the case. Opinions typically take several weeks or months.

The Paroline decision could have implications for other kinds of criminal defendants and victims, and for the application of other government restitution programs.

That's why legal scholars, including Adam Zimmerman of Loyola Law School in Los Angeles, will be watching closely. "It [has] broader implications for how the government can fine you and collect money from you or -- if you're the victim of a crime -- how it can compensate you," he said in a phone interview. "In a world where it's harder and harder to bring private actions, this case is looking at how much power the government has to help victims."


Washington Bureau Chief Tracie Mauriello: tmauriello@post-gazette.com, 703-996-9292 or on Twitter @pgPoliTweets.


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