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Oral argument suggests High Court may redefine child pornography restitution standards

New England Law | Boston center files amicus brief

(Boston, Revised-1/24/14) New England Law | Boston:  Adjunct Professor Wendy Murphy ’87 believes that the U.S. Supreme Court may redefine child pornography restitution standards as a result of Paroline v. United States, a case in which the Women’s and Children’s Advocacy Project (WCAP) filed an amicus brief based in part on student research.

Paroline is focused on restitution for victims of child pornography.  After attending oral argument on January 22, Murphy said that it may prove very difficult for the Court to create a fair and equitable system for assigning responsibility under the "Mandatory Restitution for Sex Crimes" section of the Violence Against Women Act of 1994 when multiple users are involved.
Adjunct Professor Wendy Murphy Adjunct Professor Wendy Murphy
Viewing child pornography is a crime, but if thousands watch an online video or download graphic images, under what circumstances can individual viewers be held accountable for victims’ injuries?  This issue has divided lower courts, and prompted New England Law’s WCAP, which Murphy co-directs, to file an amicus brief.
Rachel Szostak ’14 played an important role in preparing the brief, contributing previous research from two unpublished articles on the topic and assisting with writing. “I am happy that I had the opportunity to work with WCAP and was able to use my academic research in a way that might make a difference,” says Szostak. 
Doyle Randall Paroline is among thousands of individuals who possess images of child pornography victim “Amy,” who is now an adult. “Paroline looked at only two pictures of Amy and was ordered to pay her millions in restitution,” said Murphy.  “Justice Scalia seemed troubled by the argument from Amy’s lawyer that someone should pay the entire restitution amount even if he looked at only two photos. However, Paroline’s lawyer argued that Amy should get nothing at all because she couldn’t prove that Paroline caused any of Amy’s injuries simply by looking at the photos.”
The government tried to find middle ground. “It proposed having judges calculate a reasonable amount that reflected a defendant’s proportionate share, but that option made some justices question whether it could be done fairly given the nature of the crime and the difficulty of apportioning responsibility for indivisible harm,” said Murphy. “They also questioned whether the proposal would be unwieldy and require courts to manage disbursements to determine when a victim like Amy has recovered her total amount from potentially thousands of possessors, each of whom was ordered to pay some portion of restitution.
“Justice Breyer proposed sending the issue to the U.S. Sentencing Commission, and wondered aloud whether it might come up with a proposal that would strike the right balance. It’s a tough issue, and after the arguments were over I thought sending it to the Sentencing Commission in an opinion that contained strong language about the importance of making sure all victims of child pornography are fully compensated for their suffering might be the best option. So few victims ever achieve justice.”
Rachel Szostak '14 Rachel Szostak '14
Murphy believes that courts should send a strong message to all victims that it’s “worth it to report the crime,” and that judges will do everything in their power to make sure victims receive the money they deserve so they can get the help they need to recover.
WCAP, a component of the law school’s Center for Law and Social Responsibility, involves faculty and students in efforts aimed at the protection of victims of domestic and sexual violence. Initiatives include the Sexual Violence Legal News and the Judicial Language Project.
The amicus brief argued that restitution for possession of child pornography crimes should be accorded victims regardless of whether it can be proved that a specific possessor caused direct harm to the victim by viewing her image, since “All possessors of child pornography cause harm to all victims by creating and fueling the demand that produces the market that requires supply.” The brief also called for assessment under a joint and several liability theory “because the crime causes indivisible injuries.”
Another issue to be addressed by the High Court concerns whether victims must know the identities of individual possessors of pornographic images in which the victims appear in order to obtain restitution. The WCAP brief argued against this precondition as needlessly harmful and burdensome and noted that such a knowledge requirement is not imposed on victims as a prerequisite to restitution in other types of cases.

Amicus brief


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