Countless numbers of people have seen the pictures of 8-year-old “Amy,” as she is called in court documents, being sexually abused by her uncle. She is a victim of child pornography in a terrible, viral way. Since her uncle took the pictures in the late 1990s and sent them to a man he met through an AOL bulletin board, they have surfaced on the computers of child pornography collectors all over the world, factoring into 3,200 criminal cases in the United States alone. When Amy received notices from the government about those cases, one by one, she hired a lawyer, and at age 17 she started asking for restitution from the offenders (mostly men) who were being convicted for having her childhood pictures. She has claimed lifetime damages—in lost income, counseling costs, and attorney’s fees—of $3.4 million. Using a provision for restitution in the Violence Against Women Act, she has succeeded in collecting about $1.7 million from more than 170 men, usually in payments in the thousands or smaller.
In January, the Supreme Court will hear the appeal of Doyle Randall Paroline, who was caught with two pictures of Amy among 280 illegal images and was found liable by the U.S. Court of Appeals for the 5th Circuit for the full amount of the restitution Amy, who is now 24, has claimed. The 5th Circuit said it was up to Paroline—not Amy—to find the other men who could also be on the hook for restitution and go after them for contributions. The legal theory is called joint and several liability. It’s the way courts deal with pollution cases in which a bunch of defendants all dump toxic waste into a single lake. A plaintiff sues one wealthy company for all the damages, and then that defendant has to sue other companies to share the costs.
Is this how Congress intended victims to recover from sex offenders when it passed VAWA in 1994?
I wrote a long piece for the New York Times Magazine earlier this year about Amy and another woman in her position (identified as “Nicole”). They are both lovely and winning, and they have suffered a great deal, and it’s impossible not to sympathize with them. I thought, though, that the legal questions their restitution claims raise were difficult ones. Of the eight appeals courts that have heard challenges by men like Paroline, only the 5th Circuit agreed entirely with Amy’s theory of recovery. The Department of Justice also disagrees with a key to it, saying that joint and several liability doesn’t apply in these cases. But a bipartisan group of U.S. Senators have filed a brief before the Supreme Court arguing that Congress wanted to give Amy an easy path to restitution. VAWA could “hardly be clearer,” say the senators (roll call: Orrin Hatch of Utah, Dianne Feinstein of California, Charles Grassley of Iowa, Edward Markey of Massachusetts, John McCain of Arizona, Patty Murray of Washington, and Charles Schumer of New York).
Here’s the part of the statute that the Supreme Court has to sort out. VAWA requires courts to order convicted child-pornography possessors to pay restitution for “the full amount of the victim’s losses.” There is a list, itemized A through E, for the kinds of costs that “full amount” can include, such as psychological care, occupational therapy, child care expenses, lost income, and attorney’s fees. Then there is item F: “any other losses suffered by the victim as a proximate result of the offense.”
The construction of the statute has tripped up a lot of judges. Does that phrase, “proximate result of the offense,” apply only to the catchall for any other losses in F, or does it also apply to all the enumerated costs in A through E? In other words, does Amy have to show that she lost earnings or needed therapy because of the viewing of her illegal images by a particular defendant? You can see how that would be a big problem for her case—and for the thousands of other known victims of child pornography in the country.
Five appeals courts have said they doubted that victims like Amy can win more than nominal restitution. Two others let her keep awards of only $10,000 or less. She has been able to collect larger amounts only from men who have agreed to settle or waived their right to appeal. The senators, though, say that all these courts got it wrong and the 5th Circuit got it right. They quote Vice President Joe Biden, chief architect of the VAWA, who called it “the most victim-friendly bill [the Senate] ever passed.” And they provide an important piece of history about how VAWA was drafted. An earlier version of the law included the “proximate result” language twice, in the middle of the A through E list, as well as at the end. The first mention was dropped for the bill’s final passage. Congress also dropped a requirement that a victim has to suffer “direct” harm from an offender. So, the senators say, it’s clear that Congress wanted victims of widely collected child pornography to receive restitution for therapy and lost income without taking on the difficult task of proving that one particular viewing of their images is the source of their troubles.
Here’s the clearest way to think about how and why Amy and other victims like her should win restitution. Their trauma can’t be neatly parceled out among the individual men convicted for possessing their pictures. But the harm is crystal clear in the aggregate. And so Paroline and other defendants shouldn’t be relieved of their obligation to pay “simply because Amy would continue to suffer harm if there were one less child-pornography consumer in the world,” as the Department of Justice puts it. This makes sense to me: You can’t let each viewer off the hook because he is merely one small part of the whole.
How much does each viewer who is convicted have to pay? The Department of Justice argues—vaguely and without any basis I can see in VAWA—that each defendant should pay restitution in an amount greater than zero but less than the whole. Courts should use their discretion to pick some place in the middle, the government says. It rejects the idea of joint and several liability as “practically unworkable” and “unduly harsh.”
If Paroline had to pay millions of dollars for his two pictures of Amy, then yes, that would be unfair. But that’s not how joint and several liability works. It works like this: Other victims following in Amy’s footsteps would target the rich child-pornography defendants. Then it would be up to those men to find the others who are also legally responsible. This would allow many more victims to recover than the alternative: The victims have to sue the defendants they can find one by one, while courts award restitution in what would probably be relatively small amounts. If the Justice Department is really worried about fairness, it could create a compensation fund defendants could pay into for the benefit of more victims.
Money can make a huge difference for victims of sexual abuse. For Amy and Nicole, it has meant access to counseling and a safety net when they have struggled with school and work, as they both have at times. Restitution makes far more sense than the enormously long prison sentences men often serve for collecting child pornography. Congress was right to see the value of restitution. The Supreme Court should too. And then lawmakers and judges should also recognize that the prison terms for possession of child pornography have become too harsh.