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March 19, 2015

Turley Tells U.S. House: Reform Child Porn Victim Restitution

WASHINGTON, D.C.—In testimony today before the House Subcommittee on Crime, Terrorism and Homeland Security, noted attorney and legal blogger Jonathan Turley told subcommittee members why the bill that the House Committee on the Judiciary now has under consideration, SB 295, would create far more problems in getting restitution for child porn victims than it would solve. At the hearing, which was designated as "Child Exploitation Restitution Following the Paroline Decision," Turley testified that the Senate's attempts to reform the child porn restitution law, which the U.S. Supreme Court limited in an important way in its decision in U.S. v. Paroline last April. As AVN noted at that time, "Part of the high court's difficulty... is the fact that while Congress has made it mandatory that child porn victims recover monetary damages for such things as lost income and psychological counseling attendant to the harm they suffered for having appeared in sexually explicit photos and videos distributed worldwide, it failed to include in the law any formula for apportioning blame for purposes of granting restitution. It is that deficiency that formed the basis for both the majority's ruling and for the two dissents, one from Justice Sonia Sotomayor—who felt Amy should receive the $3.4 million she asked for—and the other from Chief Justice John Roberts, joined by Justices Antonin Scalia and Clarence Thomas, who felt that the law was so poorly written as to make it impossible to determine what amount Amy should recover." Turley made essentially that same point during his testimony, arguing that while the new proposed law would take the current requirement that the trial court "shall order restitution [to the victim] for any offense" involving the creation, distribution or possession of child pornography, another portion of the law requires that the defendant, whether creator, distributor or possessor, "pay the victim ... the full amount of the victim’s losses as determined by the court." And that, according to Turley, is where the problem lies. "The problem is not with the core culprits in these crimes: the people who commit the underlying the filming and distribution of those images," Turley testified. "For those cases, the direct causal link between the victim and the criminals are clear and conventional. The difficulty arises in the application of such liability for the viewing or possession of these images. It is not a question of culpability but the basis for apportionment in determining restitution. The resulting litigation pushed doctrines like joint and several liability (and concepts like indivisibility of harm and proximate causation) well beyond their workable limits. Even putting aside the original demands for the liability of the 'full' amount of restitution for possessors, the sheer number of viewers and possessors make divisibility of damages a task that becomes practically impossible. The end result can be arbitrary in setting a figure for the contribution of individual viewers among millions. The decision by the Supreme Court barring full restitution under joint and several liability theories affords Congress an opportunity to take an alternative and, in my view, a more sensible route for achieving the worthy ends of victim compensation." The main problem, as Turley sees it, is that while the Supreme Court gave no guidance as to how the restitution to any one victim should be apportioned, SB 295 does nothing to correct that problem beyond setting minimum amounts that the different types of defendants—producer, distributor and possessor—should pay into the victims compensation fund. After noting that restitution, under the law, is not supposed to be punitive, though obviously it will cost defendants the amount of money ordered to be paid in restitution, such amounts have "generally been tethered to the actual damages caused by particular felons"—a practice not followed in any of the child porn restitution cases, mainly because of the impossibility of figuring out what portion of the "actual damages" were caused by any particular defendant. In the wake of the Supreme Court's Paroline decision, Turley testified, "the application of restitution in a possession case still produced confusion as the Court tried to offer guidance to the lower courts. While the majority appeared confident that lower courts could figure it out, the record in this case disproved any such notion. The record was littered with failed efforts to force the square peg of restitution into the round role[!] of a possession case. The guidance offered to lower courts promises only continuing confusion as to where to draw the line on restitution. Kennedy told lower court judges to consider factors, including but not limited to, the overall pool of individuals responsible in past cases for this ongoing injury; a projection of the number of future contributors including those who would not likely be identified; the number of images that individual possessed; and 'other facts relevant to the [convicted individual’s] relative causal role.' "However, the Court then simply called for a type of Goldilocks estimate: something not too high and not too low but just right," Turley continued. "The Court stressed that '[t]hese factors need not be converted into a rigid formula, especially if doing so would result in trivial restitution orders.' This leaves lower courts with the Sisyphean task of establishing a single harm of apportioned contribution of one viewer among millions of past and future viewers of a given image. While the imposition of full restitution against such a viewer or possessor was rightfully rejected as 'excessive,' this approach promises to be arbitrary in any final calculation." In other words, since no one knows how many people own one or more images of a particular child porn victim, nor is it likely that the number of possessors will ever be accurately determined, courts are at a complete loss in determining just what portion of the required restitution should be paid by any one possessor—even if, as contemplated by SB 295, anyone required to pay restitution would have the ability to sue other possessors to recover some of damages that the original possessor had already paid. (AVN took this notion to its logical conclusion here.) But Turley did offer a possibly solution. After noting that child porn producers and distributors "are justifiably the subjects of high sanctions in terms of both incarceration and restitution," in part because "the replication and continued distribution of these images represent continuing harm," he argued that "I believe that Congress should remove the class of possessors from the restitution provisions entirely. Instead, Congress should create a victim’s fund and impose more standard criminal fines on possession offenses. Such an approach would shed the prior ill-conceived restitution model and use a fund model that has succeeded in other areas. A victim compensation fund could be created where possessors of child pornography would be subject to set fines to be paid into a central fund that would then guarantee even and equitable distribution to the victims." For Turley, such a fund, which he suggested could be named the "Recovery Assistance for Individual Sexual Exploitation" fund, or RAISE, would make the restitution system not only more fair to possessors, who don't create nearly the harm that producers and distributors do, but would also cut down on litigation and the attendant legal fees incurred in fighting the cases in court, but would also reduce administrative costs to both the courts and thoxe charged with collecting and disseminating the funds, plus it would assure more funds for the victims. "Rather than react defensively to the Supreme Court decision, I believe it would be wise of Congress to listen not just to the concerns of these justices but to the dozens of lower court judges who have to deal with the criminal cases in this area," Turley concluded his testimony. "Much of the prior system can be retained while a better system can be developed for possessors. The result would be a more equitable and stable system for victim compensation. It would sharply reduce litigation and, in my view, offer victims faster and greater compensation on average." Now let's see if the current Republican-controlled Congress can see the logic in Turley's position.

 
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