Allocating Liability for Child Pornography, in Full or Fractional Shares

By Adam Liptak
New York Times
December 2, 2013

http://www.nytimes.com/2013/12/03/us/evaluating-the-liability-of-viewers-of-child-pornography.html?_r=1&

The notices arrive almost every day. They tell a young woman named Amy, as she is called in court papers, that someone has been charged with possessing child pornography. She was the child.

“It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it,” Amy, then 19, wrote in a 2008 victim impact statement. “It’s like I am being abused over and over and over again.”

Next month, the Supreme Court will consider what the men who took pleasure from viewing Amy’s abuse must pay her.

Images of Amy being sexually assaulted by her uncle are among the most widely viewed child pornography in the world. They have figured in some 3,200 criminal cases since 1998.

Amy is notified through a Justice Department program that tells crime victims about developments in criminal cases involving them. She has the notifications sent to her lawyer. There have been about 1,800 so far.

Her lawyer often files a request for restitution, as a 1994 law allows her to do. Every viewing of child pornography, Congress found, “represents a renewed violation of the privacy of the victims and repetition of their abuse.”

Amy’s losses are in most ways beyond measure, but some of them can be calculated in dollars. She has found it hard to hold down a job. She needs a lifetime of therapy. She has legal bills. Her lawyers say it adds up to about $3.4 million.

The question for the justices is how to allocate that sum among the participants in the sordid marketplace for pictures of her.

One of those men is Doyle R. Paroline, who was caught with 280 images of children, including toddlers, being sexually abused. Two of the pictures were of Amy.

The 1994 law allows victims of child pornography to seek the “full amount” of their losses from people convicted of producing, distributing or possessing it, and Amy asked the United States District Court in Tyler, Tex., to order Mr. Paroline to pay her the full $3.4 million.

Mr. Paroline said he owed Amy nothing, arguing that her problems did not stem from learning that he had looked at images of her. Amy’s uncle, who was sentenced to 12 years in prison for his crimes, bore the brunt of the blame, Mr. Paroline said, but was ordered to pay Amy just $6,325.

He added that Amy’s “problematic behavior,” including drinking and troubles at work and school, could have sources other than her “sexual abuse history.”

Mr. Paroline was sentenced to two years in prison, but the trial judge, Leonard Davis, did not order him to give Amy anything. The link between Amy’s losses and what Mr. Paroline did, Judge Davis said, was too remote.

The United States Court of Appeals for the Fifth Circuit, in New Orleans, disagreed and awarded Amy the $3.4 million she sought. Mr. Paroline should pay what he could and seek contributions from his fellow wrongdoers if he thought it too much, the court said, relying on the legal doctrine of “joint and several” liability.

“Among its virtues,” the appeals court said, “joint and several liability shifts the chore of seeking contribution to the person who perpetrated the harm rather than its innocent recipient.” In the long run, Amy would not receive more than she deserved. But nor would she have to chase hundreds of men, many of them penniless, for the fractional shares of her misery that they caused.

Mr. Paroline said the ruling was deeply unfair. “An award of $3.4 million against an individual for possessing two images of child pornography is punitive and grossly disproportionate to the offense conduct,” he told the Supreme Court. Requiring him to seek payment from his fellow sex offenders, he added, “would create a procedural nightmare.”

Amy’s lawyers countered that it should not be her burden to pursue her abusers over “decades of litigation that might never lead to a full recovery.”

She has received restitution in 180 cases so far, she told the justices, and has recovered a little more than 40 percent of her losses.

The Justice Department took a middle ground before the Supreme Court, saying that Amy deserved something from Mr. Paroline, but that $3.4 million was too much. The right amount, the department’s lawyers said, was “somewhere between all or nothing.”

They did not specify what Mr. Paroline’s share might be, saying the trial court should decide. Amy’s lawyers said they feared that a strict mathematical allocation of responsibility, with each offender paying an equal share, could lead to individual awards of “about $47.”

Emily Bazelon interviewed Amy for an article that ran in The New York Times Magazine in January, before the Supreme Court agreed to hear the case, Paroline v. United States, No. 12-8561. She sounded hopeful.

“If I win, that will set everything up for people like me, and that would be so amazing,” Amy said. “I don’t even think there are words for it.”