How much should people who download child pornography pay the victims who were abused to make the images? Those who collect child pornography drive the market for it, and their lurking presence can make victims fear that someone they meet at a party or on the job may have seen them being raped or molested. It’s a fear that makes the harm from the initial abuse ongoing, and that can be traumatic and excruciating, as two women who were victims, at the ages of 8 and 9, described to me.
But apportioning responsibility for this kind of collective harm is tricky. If hundreds of thousands of people have downloaded an image and one defendant is caught with it, how much of the victim’s damages should he be held responsible for? Last month, the Supreme Court struggled with that question in trying to interpret part of the Violence Against Women Act, which provides for restitution for victims of sex crimes but didn’t really anticipate the problem of collective harm that child pornography causes. The court’s ruling effectively sent Congress back to the drawing board.
And, hey, in less than a month Congress is responding. Sens. Orrin Hatch, Charles Schumer, and Rob Portman are introducing a bill that would explicitly adopt an “aggregate causation standard to address the unique crime of child pornography and the unique harms caused by child pornography.” Here’s what that means: Victims can receive restitution to cover therapy and other medical expenses, lost income and child care, and attorneys’ fees. Once a judge has determined the full amount of the damages—which can easily run into the millions, calculated over a lifetime—the judge can order one defendant (a person who has viewed the victim in child pornography) to pay either the whole thing or at least an amount between $25,000 and $250,000, depending on the severity of the offense. No victim gets to recover more than the maximum amount of her damages. Every defendant who pays can sue other defendants convicted for crimes involving the same victim, so that they too will have to chip in.
“Amy,” the name used by the victim whose case went to the Supreme Court, supports this bill. It also looks good to me. I would like to see the bill paired with a victim’s compensation fund, so that each victim doesn’t have to seek restitution individually. (Prosecutors would ask for restitution after a conviction, and the money would go into the fund instead of to an individual victim.) Also, importantly, it’s time for Congress to take on a far less popular issue: sentencing reform for child pornography defendants. They often face such severe sentences that judges and the federal Sentencing Commission think the sentencing guidelines for these crimes are deeply flawed. Money can make a real difference for women like Amy as they rebuild their lives. But if we are going to ask the people who contributed to exploiting them to pay up, let’s also recognize that sending them to prison for many years is too harsh and a waste of a different source of money—our taxes.