New legal issue: Payment for child porn victims

[February 08, 2010]  MINNEAPOLIS (AP) -- It's been more than a decade since "Amy," as she's known in court papers, was first sexually abused by her uncle. The abuse ended long ago and he's in prison, but the pictures he made when she was 8 or 9 are among the most widely circulated child pornography images online.

Now the 20-year-old woman is taking aim at anyone who would view those images and asking for restitution in hundreds of criminal cases around the country.

Her requests and those filed by other victims of child pornography are forcing federal judges nationwide to grapple with tough legal questions: Is someone who possesses an abusive image responsible for the harm suffered by a particular child? And how much should that person have to pay?

"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. It's like I am being abused over and over again," Amy wrote in court papers.

"I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop my uncle," she wrote.

The issue of criminal restitution in child pornography possession cases emerged last February in Connecticut when a federal judge said he would order a man convicted of possessing and distributing child pornography to pay about $200,000 to Amy. The judge said it was the first criminal case in which someone convicted of possessing illegal images -- but not creating them -- would be required to pay restitution. (The case settled for $130,000 before the judge issued his final order.)

Since then, requests for restitution have picked up as more victims are identified -- and as a couple of victims, including Amy, have hired attorneys, said Meg Garvin, executive director of the National Crime Victim Law Institute in Portland, Ore.

Hundreds of requests have been filed nationwide, most of them by Amy's attorney, James Marsh of New York. Marsh said that as recently as five years ago, restitution would have been impossible because victims wouldn't have known when someone was caught with an image of them. The Crime Victims Rights Act of 2004 set up a system for notifying the victims. Now, Marsh gets several notices a day on behalf of Amy.

Marsh, who declined to make Amy available for an interview, is seeking restitution for Amy in 350 cases nationwide. Each request is about $3.4 million. She won't get that amount in every case. But any sum collected would go toward that total to cover Amy's counseling, medical costs, future lost earnings and lawyer fees.

Courts have been divided on how to handle the requests. At least two courts in Florida ordered restitution of more than $3.2 million, but some others ordered nominal amounts. Several others denied it.

"Everyone is really grappling with this in good faith," said Marsh. "It's all over the place."

In Minnesota last month, a federal judge ordered prosecutors to explain why they didn't ask for restitution in a case involving images of Amy.

The court "will no longer accept silence from the government," wrote U.S. District Judge Patrick Schiltz.

In a response brief, Assistant U.S. Attorney Erika Mozangue wrote that prosecutors didn't get a restitution request until after a plea deal had been worked out, and added, "The determination of restitution in possession cases is an unsettled issue."

Some defense attorneys have argued that children are not victimized by mere possession of pornography or that their client had no direct connection to the victims. Others have argued it's impossible to fairly calculate how much harm one offender caused the victim.

After a federal judge in Florida found Arthur Weston Staples III, of Manassas, Va., jointly liable for $3.5 million in restitution for having an image of Amy, Staples' attorney, Jonathan Shapiro, argued on appeal that there was no connection between the two "other than the fact that he possessed her image on his computer approximately 10 years after that image had been manufactured by her uncle ... who caused her extreme damage."

Prosecutors should have to prove that Amy was a victim of Staples' particular act, and that she would not have been harmed if Staples hadn't had the image, Shapiro argued. The appeal is pending.

A federal appeals court recently upheld a Texas judge's decision to deny restitution because prosecutors didn't show how much harm the specific defendant caused. The ruling in the 5th U.S. Circuit Court of Appeals drew a sharp dissent from Judge James Dennis.

"Her right to restitution is not barred merely because the precise amount she is owed (by this defendant) is difficult to determine," Dennis wrote.

Other defense lawyers have said restitution requests belong in civil court.

Bradford Colbert, a William Mitchell College of Law professor, agreed.

"It just isn't appropriate for criminal court to make those determinations," he said. "This is the type of thing that should be resolved in a civil lawsuit. You get convicted of a crime and you get sued by a victim, and there's a civil lawsuit where you pursue damages."

Marie Failinger, a Hamline Law School professor, said allowing restitution in criminal cases is important because many victims don't have the resources to pursue civil cases. She predicted it would take three to five years for courts to figure out a consistent way to handle requests for criminal restitution.

Meanwhile, victims' advocates see criminal restitution as one more tool for fighting child porn.

"The people who engage in this stuff need to be held accountable, even if they are not the person who is raping the child," said Ernie Allen, president of the National Center for Missing and Exploited Children. "People who are distributing this stuff, people who are downloading this stuff -- when they do that, there's a victim, and there's a real harm."

[Associated Press; By AMY FORLITI]

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