Child Pornography Victims Seek Criminal Restitution from Convicted Viewers

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Sep 6, 2012

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Online child pornography is one of the darkest downsides of an internet that makes everything available to those who know where to look.  Victims of child abuse suffer not only the pain and humiliation at the hands of their abusers, but can be agonized by the knowledge that pictures of their traumatic abuse will forever exist online.  Child pornography laws make it a crime for anyone to view these images, however, an illegal underground market for the images still exists, and victims suffer ongoing humiliation as their pictures remain in distribution.

Over the last few years, some victims of child abuse have attempted to further punish people who view online child pornography by seeking financial restitution from individuals convicted for viewing images of their abuse.  Lawyers on behalf of abused victims are not seeking restitution in a civil suit, but are attaching their financial demands to the criminal prosecution under the Violence Against Women Act (VAWA).

The way criminal restitution works is simple – for certain crimes, mostly fraud related, federal statutes require prosecutors to demand, as part of punishment, that the defendants pay the victim the costs that were caused by the defendant’s actions.  The purpose of criminal restitution is to represent victims rights in a criminal trial by making financial restitution part of punishment.  A restitution award from a criminal court carries significant authority, and there are a handful of federal statutes allowing victims of fraud and abuse to seek financial awards at trial.  Restitution requests can be argued by prosecutors or by attorneys representing the victims, and the key element in criminal restitution is proving that the defendant’s actions caused the victim’s harm.

The few victims of child abuse seeking restitution from defendants accused of viewing images of their abuse are blazing a trail – no victims of abuse have attempted to seek restitution against defendants who didn’t directly create the abuse, but who keep the images in demand.  Attorneys representing these victims are looking to punish the end user of the pornographic images whose demand creates a market that causes ongoing harm to abuse victims.  So far, the results have been mixed as not all courts have found enough of a connection between the actions of the defendants and the cause of the victim’s suffering.  Those that have found sufficient cause have struggled with the logistics of charging appropriate restitution for one defendant out of hundreds or thousands to pay.  Some courts have awarded the full restitution amount against individual defendants, and some have issued only a portion of it.

Critics of this new legal trend have argued that there is not a sufficient connection between the actions of the defendants and the cause of the victim’s harm.  While no one would argue that the victims of child abuse have not suffered a real and severe harm, defense attorneys argue that the punishment becomes too severe when the individuals being punished are not the abusers.  The defendants in these cases did not actually abuse the victims, or post the images of their abuse online.  Their crime, which is still serious, was limited to viewing the images rather than creating or distributing them.  Expanding the definition of the cause of a victims harm to include defendants who view the results of abuse could set a dangerous precedent for any crime that entitles victims restitution because the door opens for victims to pursue any defendant with some connection.  Although federal law places strong emphasis on victims being entitled to restitution, extending financial punishment to viewers of child pornography raises some serious philosophical questions about the purpose and appropriateness of punishment and the rights of victims.

It is easy to sit in favor of any punishment meted out to viewers of child pornography – they are an unsympathetic defendant committing a heinous crime.  This alone does not justify awarding restitution, however, and courts are faced with difficult legal analysis that tries to determine whether or not these defendants responsible for the ongoing harm that online child pornography causes victims of abuse because they keep the demand alive.

Currently, only a handful of victims have pursued criminal restitution requests.  Some may think this legal movement is too uncertain, and others may not want to expose themselves to a constant reminder of their abuse by staying involved in legal cases.   Should more victims become involved, higher courts and even federal legislators will likely need to step in and settle the legal questions definitively.  Until then, these cases offer an interesting look at the competing interests between a victim’s right to restitution, and a defendant’s right to a fair punishment for the harm they cause.

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