When she was 17, Amy (not her real name) learned that thousands of people had downloaded images from the Web of sexual abuse she suffered at the hands of her uncle when she was 8 and 9. He’d taken pictures and put them online. The Violence Against Women Act provides for restitution for child pornography victims, so Amy sought payment from the people convicted of possessing her images. She proved that she had lost almost $3.4 million in therapy expenses and future income as a result of the abuse and the viewing of the images, but because of the collective nature of the wrongdoing that caused her harm, she could not prove how much of the loss could be attributed to any specific defendant. Doyle Randall Paroline was convicted of possessing two images of Amy. This week’s puzzle for the Supreme Court: How much should he have to pay her?
Zero, three of the conservative justices argued in dissent Wednesday. All $3.4 million, argued Justice Sonia Sotomayor, also in dissent. Something, held the majority, in an opinion written by Justice Anthony Kennedy. The conservatives got the law right, Sotomayor got the morality right, and Kennedy—characteristically trying to have it both ways—created a muddle.
Amy argued that she suffered emotional trauma from the knowledge that images of her were on the Web, that an unknown number of people were looking at them, and that she might meet any of them at any time. But to win restitution in the full amount from Paroline, she (or technically the government, in its role as prosecutor) was required to prove “the amount of the loss” she sustained as “a result of” Paroline’s offense. That’s the key phrase, and by looking at two images of Amy, Paroline simply did not cause $3.4 million in damages.
Of course, if this interpretation were extended to all the offenders who looked at the images of Amy, she would recover no money at all. That would mean victims of mass child pornography get nothing. Justice Sotomayor rightly argued that Congress did not intend such an outcome. She would make Paroline responsible for the full $3.4 million or as much as a judge found that he could afford to pay. If financial ruin seems like an excessive punishment for viewing two images of child pornography, it needn’t happen, Sotomayor says: Paroline could search out other offenders who viewed Amy’s images and sue them for contribution—their portion of the $3.4 million, based on their offense. That’s better than requiring Amy to seek restitution from thousands of offenders.
Making Amy do that, though, is the upshot of Kennedy’s search for middle ground. Each defendant, he says, should have to pay “an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.” Well, what does this mean? Kennedy essentially tells district court judges to go figure it out. He uses vague directives for determining the restitution awards like “reasonable and circumscribed.” On the scale between zero and $3.4 million, where does that fall? Who knows? When a court goes squishy like this, you know something is wrong. Kennedy certainly could have been more precise if he had wanted to, but precision would have exposed the defects in his argument.
One approach would be to force Paroline to pay an amount equal to the total harm ($3.4 million) divided by the number of people who have viewed the images. Chief Justice John Roberts suggests that the proven number may be as high as 71,000 people—meaning that Paroline’s share is just $47. Such a trivial sum would insult Amy rather than compensate her. And it would still force her to seek restitution from thousands of people, one at a time. It would also require questionable calculations on the part of the government, which would have to estimate the number of people who saw or might in future see a particular set of images in order to calculate the victim’s restitution. Kennedy clearly believes that Amy deserves more than $47, but he could not articulate a principle that would justify a larger figure.
So Sotomayor’s approach might seem fairest. But is it? If Paroline is on the hook for the full $3.4 million, it is most unlikely that he will be able to recover much of that sum from other offenders. Under the law of contribution, Paroline would be entitled to damages only in proportion to each other offender’s fault—which would likely work out to much less than the legal fees it would take to sue.
Many child pornography offenders would thus not only serve five to 20 years in prison, but also emerge financially ruined, potentially forfeiting their entire future income beyond the bare minimum a judge thought they needed to survive. Others who possessed images that could not be traced to identified victims would pay nothing. Victims like Amy who could identify the convicted offenders who harmed them would receive money, but many other victims—those to whom images could not be traced, or who could not recover money because offenders were not caught or were impoverished—would receive nothing. Sotomayor is right that people like Paroline create market demand for child pornography, fed by predators like Amy’s uncle, and so should be punished. But in her effort to do justice for Amy, she would create a system of outsized and arbitrary punishments that were disconnected from the culpability of the defendant and the magnitude of the harm that he caused, and unlikely to make a dent in the problem of child pornography.
The problems with Kennedy’s and Sotomayor’s approaches stem from the same source: When Congress drafted the provision about restitution in the Violence Against Women Act, it thought about traditional types of harms—when one person directly injures another—and not the unusual collective injury in this case. That’s why the justices’ efforts to twist the statutory language led to unfair and bizarre outcomes.
Congress created this mess, and only Congress can fix it. Every person who is convicted of child pornography should pay a large fine into a government trust. The fine would be tailored to the wealth of the defendant and the magnitude of his wrongdoing. Then this fund would be used to compensate all the identified victims of child pornography, who would share it in proportion to the severity of their injuries. That way, not Kennedy’s or Sotomayor’s, lies fairness.