Slow Acid Drips and Evidentiary Nightmares: Smoothing out the Rough Justice of Child Pornography Restitution with a Presumed Damages Theory
Giannini, Mary Margaret, American Criminal Law Review
Section 2259 of Title 18 of the United States Code directs that those convicted of distribution or possession of child pornography shall pay restitution for the full amount of the victim's losses. Courts have struggled, however, with interpreting and applying the statute's proximate cause language, resulting in rough justice for victims and defendants. A majority of courts interpret [section] 2259 as including a proximate cause requirement, but are inconsistent in their definition and application of that standard. Victims are subjected to the "slow acid drip" of the continued knowledge that their images are being circulated and viewed by countless individuals, while they face the "evidentiary nightmare" of attempting to proximately link the ongoing harm they suffer to a specific defendant's possession of their image. In the end, many victims are denied recovery. Conversely, some defendants have been saddled with enormous restitution awards that do not fairly represent the harm the defendant caused to the victim. In an attempt to soften this rough justice, this Article proposes the crimes of distribution and possession of child pornography be viewed as a criminal species of privacy and defamation torts. Courts have long recognized the dignitary and reputational harms associated with privacy and defamation tort claims are difficult, if not impossible, to quantify, but nonetheless require compensation. In these narrow settings, courts and legislatures have turned to the doctrines of general and presumed damages to afford victims relief Congress should similarly revise [section] 2259 to employ a variant of presumed damages in which defendants must pay victims a set statutory amount for distribution or possession of their images.
INTRODUCTION I. THE AMY AND VICKY CASES II. ROUGH JUSTICE: THE COURTS' VARIED INTERPRETATIONS AND APPLICATIONS OF [section] 2259 A. The Restitutionary Framework of [section] 2259 B. Proximate Cause? C. Applying the Proximate Cause Standard 1. Estimating Restitution 2. No Restitution or Only Nominal Restitution 3. Introducing a Solution: Presumed Criminal Damages III. SLOW ACID DRIPS: REFRAMING VICTIM HARM THROUGH A PRIVACY AND DEFAMATION ANALOGY A. Linking Child Pornography Distribution and Possession with Privacy and Defamation B. A Right to Privacy 1. Intrusion on Seclusion 2. Publicity Given to Private Facts 3. False Light and Defamation IV. EVIDENTIARY NIGHTMARES: SOFTENING THE EDGES BETWEEN CIVIL DAMAGES AND CRIMINAL RESTITUTION A. Privacy and General Damages B. Defamation and Presumed Damages V. SMOOTHING OUT THE ROUGH: A PRESUMED DAMAGES REMEDY FOR VICTIMS VI. CONCLUSION
Crime is costly. Governments struggle with balancing the costs of law enforcement, maintaining functional court and prison systems, and rehabilitating offenders. Victims are faced with property loss, medical costs, lost wages, mental health expenditures and the long process of rebuilding their lives. In an attempt to aid victims on their path toward recovery, Congress has passed a number of criminal restitution statutes. (1) Included among these statutes is the Violent Crime Control and Enforcement Act (VCCEA), which requires mandatory restitution to victims of child exploitation, (2) including victims of child pornography distribution and possession.
It has been estimated that "commercial child pornography is a $20 billion industry worldwide, fueled by the Internet." (3) Reports indicate that there may be "more than one million pornographic images of children on the Internet, with 200 new images posted daily." (4) Additionally, it has been estimated that "between 50,000 and 100,000 pedophiles [are] involved in organized pornography rings around the world, and that one-third ... operate from the United States. …