The abusive crime of child pornography is universally condemned. But is it fair that a few of these abusive images on a viewer's hard drive could cost them more than $3 million?
That's the question before the Supreme Court Wednesday morning.
Under a provision of the 1994 Violence Against Women Act (VAWA), a few victims of child pornography have been suing viewers of their images for the total estimated lifetime cost of lost wages and medical and psychological care resulting from their abuse and the mass production and sale of images of that abuse.
Weighing in on this practice, the Court's decision in Paroline v. United States could have a huge impact on the lives of the hundreds of victims of child pornography.
One such victim, as she is referred to in legal documents and the press, is Amy Unknown. As detailed in court documents, Amy was raped repeatedly from the ages of eight to nine by her uncle for the purpose of creating and selling the images. (Amy's story was detailed in a New York Times Magazine story last year.)
This series of images went on to become one of the most widely circulated depictions of child sexual abuse in the world. The fact that thousands of strangers continue to look at them make the psychological torment of the abuse an ongoing ordeal for Amy.
"Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again," Amy said in a court impact statement. Amy's lifetime restitution claim is $3,367,584.
One such viewer is Doyle Randall Paroline, whom authorities arrested in 2008 for downloading hundreds of images of child sexual abuse, including some images of Amy. So Amy sued Paroline for restitution.
Under the restitution provision of VAWA, a court must award the victim of a sex crime the "full amount" of their losses. Not everyone in possession of Amy's images will have millions of dollars, but over several lawsuits from a number of perpetrators, Amy could expect to claim the full amount.
The Supreme Court heard from three parties Wednesday: Paroline, who argues he should pay nothing; the victim Amy, who sued for the full amount of the damages; and the federal government, that thinks the cost should fall somewhere in between. The Obama administration's middle ground would likely result in much less money for victims, weakening an important provision of VAWA, the landmark legislation spearheaded by then-Senator now Vice President Joe Biden.
Amy's lawyers argue that the legal doctrine at issue is what is known as joint and several liability, whereby multiple parties are jointly responsible for a harm so all become liable for the total cost of the damages. The goal is to make sure a victim is repaid in whole even if some of the responsible parties don't have enough money to cover their share of the cost.
Paroline's lawyers argue that the language of the statute requires that restitution be based on a causal connection or "proximate result" between a viewer like Paroline and the harm caused to Amy. Because Paroline merely viewed a few images, rather than make or sell them, he is less culpable than others involved in Amy's abuse and therefore not liable for the full restitution. In fact, Paroline argues, as one of thousands of viewers of Amy's abuse, it would be impossible to calculate his portion of the harm and he should therefore pay nothing. If taken to its logical conclusion, this theory would mean that the more widely distributed an image, the less liable each viewer is.
Amy's lawyers contend that viewers like Paroline are an integral part of the black market in child pornography that led to the abuse Amy suffered and are therefore liable for the full amount. They also argue that the statute is intentionally broad to crack down on sexual crimes against children
The federal government wants the court to adopt a third option, which calculates a restitution cost based on the culpability of each individual sued by Amy or a similar victim. Amy's lawyers contend that setting up a restitution formula for lower courts to follow would prove unworkable.
Putting aside the legal issues, the moral question here is a murky one. Should the law require victims to go to each person who has downloaded their images and sue for a small share of the total restitution cost owed them, based on how closely connected their actions are to the victim's abuse?
This would send victims on a seemingly endless series of court cases to claim damages. The money, which is likely put to a lifetime of therapy and helps make up for lost wages due to ongoing psychological trauma, is not often key to helping victims get their lives back on track.
Or, is it fair to make a few wealthy viewers pay the total amount for the abuse? Paroline's lawyers contend this violates the Eighth Amendment's ban on excessive fines.
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