Child Pornography and the Restitution Revolution
Lollar, Cortney E., Journal of Criminal Law and Criminology
Victims of child pornography are now successfully seeking restitution from defendants convicted of watching and trading their images. Restitution in child pornography cases, however, represents a dramatic departure from traditional concepts of restitution. This Article offers the first critique of this restitution revolution. Traditional restitution is grounded in notions of unjust enrichment and seeks to restore the economic status quo between parties by requiring disgorgement of ill-gotten gains. The restitution being ordered in increasing numbers of child pornography cases does not serve this purpose. Instead, child pornography victims are receiving restitution simply for having their images viewed. This royalty-type approach to restitution amounts" to a criminal version of damages for pain and suffering and loss of enjoyment of life. To justify this transformation of restitution, courts have come to rely on several commonly accepted, but flawed, theories about the impact of child pornography. Because these theories are unsupported by social science or law, they divert attention from remedies that could better alleviate the harms of child pornography. Rather than encouraging victims to move forward with their lives, restitution roots them in their abuse experience, potentially causing additional psychological harm. Restitution in its new form also allows the criminal justice system to be a state-sponsored vehicle for personal vengeance. This Article calls for an end to the restitution revolution and proposes several alternative approaches that better identify and address the consequences of child pornography.
TABLE OF CONTENTS INTRODUCTION I. RESTITUTION & NON-CONTACT CHILD PORNOGRAPHY CASES A. A Modern History of Restitution B. Restitution in Non-Contact Child Pornography Cases 1. Expanding Restitution 2. The Landscape After Hesketh 3. How to Calculate Harm II. MISGUIDED ATTEMPTS TO ALLEVIATE HARM A. Debunking Common Theories of Harm 1. Viewing Child Pornography as the Primary Harm 2. Equating Child Pornography Viewers with Hands-On Child Sex Abusers 3. Ignoring the Reality of Sexual Abuse Within Families B. Restitution's Potential to Create Harm 1. The Harm of Ongoing Commodification 2. Criminal Restitution as an End Run Around the Tort System 3. Restitution and Deterrence III. TAILORING REMEDIES TO HARM A. Rethinking Restitution 1. Rejecting the Restitution Revolution 2. Empowering Victims B. Alternative Approaches to Eliminating the Harms of Child Sexual Abuse IV. CONCLUSION
We are witnessing a restitution revolution. Traditionally, restitution has been a legal mechanism used to disgorge a person's ill-gotten gains, thereby preventing the beneficiary's unjust enrichment at another's expense. Until four years ago, restitution was ordered in criminal cases only when a defendant was the direct source of harm to the victim or the victim's property. In the context of child pornography, the only offenders ordered to pay restitution were those who had documented their own sexual abuse of children, thereby creating the pornography. Victims did not seek restitution from viewers and traders of child pornography, who did not participate in the actual abuse and thus did not directly harm the children depicted. Since 2008, however, restitution in the child pornography context has expanded to become the criminal law's version of civil damages, with judges instead of juries imposing what amounts to emotional damages for pain and suffering and hedonic damages for loss of enjoyment of life.
In 2008, James Marsh, representing a nineteen-year-old named Amy, (1) became the first lawyer to seek restitution from a "non-contact" defendant, someone who possessed and distributed child pornography but did not create it. …