Top court rejects award for Pa. child porn victim

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WASHINGTON -- The Supreme Court tossed out a Pennsylvania woman's $3.4 million award Wednesday for restitution from a man convicted of viewing pornographic images that had been taken when she was a child and posted online.

In a 5-4 decision, the court remanded the case and instructed the lower court to come up with an amount that more closely reflects defendant Doyle R. Paroline's role. The amount should be neither severe nor nominal, the court said.

"The victim should someday collect restitution for all her child pornography losses, but it makes sense to spread payment among a larger number of offenders in amounts more closely in proportion to their respective causal roles and their own circumstances," Justice Anthony Kennedy wrote in the majority opinion.

The victim, known only as "Amy Unknown" in court papers, said the decision is surprising and confusing.

"I'm not sure how this decision helps anyone to know if, when, and how restitution will ever be paid to kids and other victims of this endless crime," Amy, now 24, said in a written statement Wednesday. "The court said I should get full restitution 'some day.' I just wonder when that day will be."

At issue was how to apportion responsibility for restitution when defendants are numerous.

Five years ago, Paroline was convicted of possession of child pornography, including two pornographic images of Amy that were taken when she was a child.

What complicated the case is that more than 175 other defendants with varying ability to pay restitution also have been convicted of viewing pornographic images of Amy, whose childhood rapes 16 years ago were widely disseminated online. Her abuser was her uncle Eugene Zebroski, who served 10 years in prison and paid about $6,000 in restitution.

Amy's attorney, Paul G. Cassell of Utah, argued that each offender should be liable for the outstanding amount of damages until his client receives the full $3.4 million.

The court, though, said that would undermine the purpose of restitution because many defendants would end up paying nothing.

Paroline's attorney, Stanley G. Schneider of Texas, had argued that the link between his client's actions and harm to Amy was too tenuous to cause enough harm to warrant any restitution at all. Rather, he argued, Paroline caused too little harm individually to warrant any restitution order at all.

The court found middle ground in a ruling that acknowledges the difficult task now before the lower courts.

"Paroline's possession of two images of the victim was surely not sufficient to cause her entire losses from the ongoing trade in her images. Nor is there a practical way to isolate some subset of the victim's general losses that Paroline's conduct alone would have been sufficient to cause," Justice Kennedy wrote.

Joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito and Elena Kagan, Justice Kennedy directed the U.S. Court of Appeals for the 5th Circuit, based in New Orleans, to use discretion and sound judgment to "order restitution in an amount that comports with the defendant's relative role."

Mr. Schneider said Wednesday's decision was sensible.

"The court said there has to be a causal relationship between the defendant's conduct and the award of restitution, and that's correct," he said. "The Supreme Court said there are criteria you have to look at such as how many images the person had, the size of the distribution, whether they were creating it and that sort of thing. A person who has two images is different from someone who has 1,000 images, and someone who is only possessing child pornography is different than someone who is distributing pornography."

He said the decision could have wide-reaching implications for restitution for other kinds of crimes involving numerous defendants.

Mr. Cassell said the ruling means his client will have to endure endless litigation to collect damages piecemeal from courts around the country. So far, Amy has collected more than $1.75 million in restitution in awards ranging from $1.2 million to just $50.

One of those awards came from Kelly Hardy of New Castle, Pa., who paid $1,000 in restitution to Amy as part of a sentence that included 30 years in prison for possessing vast amounts of pornography depicting numerous children.

The $3.4 million Amy seeks is an estimate of the cost of ongoing therapy, lost wages and attorney fees.

In separate dissenting opinions, Chief Justice John Roberts and Justice Sonia Sotomayor noted flaws in the 1994 law that provides for restitution for victims of child pornography. They said Congress should fix the law to provide more direction.

Justice Sotomayor, who would have upheld the full amount of the award, suggested that Congress set a minimum amount of restitution. Chief Justice Roberts, joined by Justices Clarence Thomas and Antonin Scalia, wrote that the restitution law as written would mean that Amy should get nothing.


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

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