$3.4M award to child porn victim nixed

Published on Wednesday, 23 April 2014 22:34 - Written by Staff and Wire

The justices said in a 5-4 ruling that a 1994 federal law gives victims the right to seek restitution from offenders, but only to the extent that the victim's losses are tied to the offenders’ actions.

In this case, Doyle Randall Paroline, of Brownsboro, was held liable by a federal appeals court for the entire amount of the woman's losses, though his computer contained just two images of her, among more than 150 illicit photographs.

The case involved a woman known in court papers by the pseudonym “Amy.” Her losses for psychological care, lost income and attorneys’ fees have been pegged at nearly $3.4 million, based on the ongoing Internet trade and viewing of images of her being raped by a relative when she was 8 and 9 years old.

She said she was “surprised and confused” by the decision, according to a statement her lawyer posted online.

TYLER CASE

When Paroline pleaded guilty in 2009 in Tyler federal court, there were an alleged 800 defendants across the nation charged with possessing child pornography including her pictures.

Paroline was sentenced to two years in federal prison by U.S. District Judge Leonard Davis, who denied that Paroline pay restitution to “Amy.”

The case brought forth a groundbreaking and complex issue of restitution - which attorneys for “Amy” claimed she was entitled to from those who possessed illegal photos of her – spread around the country and became part of Paroline's Tyler case, the first in East Texas five years ago.

Assistant U.S. Attorney Bill Baldwin, Paroline's defense attorney F.R. "Buck" Files Jr. of Tyler and New York attorney for “Amy,” James Marsh, stated their views on the issue and answered questions by the judge during a hearing in Tyler in 2009.

Out of nearly 300 images of child pornography found on Paroline's computer, 23 victims were identified and a victim impact statement from “Amy” described how she was unable to get past the sexual abuse she endured as a child because the images were still being viewed on the Internet.

Baldwin said the victim wanted to go to college and become a teacher but has been unable to do that because of the impact of the abuse.

She requested about $3.4 million in restitution in the case, although Paroline did not produce or distribute the pornography; he merely looked at it on the Internet.

At the time, Davis said he had seen a number of child pornography cases come through his court but until then, he had never received a victim impact statement from an identified victim in a child pornography case and had never received a claim for restitution from the defendant who possessed the illegal material.

"It is obvious we are plowing new ground with this case," Files said at the time.

He said Amy was clearly a victim of sexual abuse and her relative was convicted and ordered to pay $6,000 in restitution. Files said it is unconscionable for the government to suggest $3.4 million is appropriate in Paroline’s case.

Baldwin said a report from the victim's psychologist stated that the value of treatment necessary for her in the future would be $512,681 and a report from an economics group shows a future loss of financial wages of $2,855,170. They also asked for attorneys fees.

“The court's decision is a serious setback for victims of child pornography like Amy in their effort to obtain just and timely restitution for the ongoing crimes perpetrated against them,” Marsh said after Davis issued an order denying the restitution. “How can we, as a country, justify awarding tens of thousands of dollars in damages to record companies for downloading a single song, while criminals who exploit children pay nothing?”

Baldwin said the child pornography photos were a permanent record of her abuse that continued to be exacerbated by its circulation.

“There's a new injury with each publication of these photographs,” he said at the time. When Paroline opened those images, “he stepped into the room of abuse with ‘Amy’” and became a participant in her abuse, he said.

RULING

Justice Anthony Kennedy said for the court that the appellate judges went too far when they said that Paroline was responsible for all of the woman's losses, without determining how much harm he caused her. Kennedy said federal judges have to figure out the right amount, but he provided only “rough guideposts for determining an amount that fits the offense.”

A federal judge now will work out what Paroline should pay the woman.

The ruling steered a middle ground between the woman's call for full restitution and Paroline's claim that there was no relationship between his conduct and the woman's losses, so that there should be no award of restitution. The case turned on the interpretation of the federal law granting restitution to victims of sex crimes, including child pornography.

Justices Samuel Alito, Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan joined Kennedy's opinion.

Chief Justice John Roberts, joined by Justices Antonin Scalia and Clarence Thomas, said the restitution law as written should mean that Amy gets nothing. In a separate dissent, Justice Sonia Sotomayor said she would have upheld the full award.

Both Roberts and Sotomayor said Congress can rewrite the law to make it clearer. The U.S. Sentencing Commission has recommended that lawmakers eliminate confusion among federal judges about the right way to calculate restitution. “The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it,” Roberts said.

Advocates for child pornography victims argued that holding defendants liable for the entire amount of losses better reflects the ongoing harm that victims suffer each time someone views the images online. The threat of a large financial judgment, coupled with a prison term, also might deter some people from looking at the images in the first place, the advocates said.

“It's significant that the Supreme Court said that based on this harm, you have a right to restitution,” said Mai Fernandez, executive director of the National Center for Victims of Crime. “But there's no guarantee that she'll be able to collect the full amount that's owed to her.” Fernandez also said Congress should write a clear formula into the law to make it easier to force offenders to pay.

Had the woman prevailed at the Supreme Court, courts would not have had to determine exactly how much harm any one defendant caused her. Instead, all defendants would have been liable for the entire outstanding amount, raising the possibility that a few well-heeled people among those convicted might contribute most, if not all, of the remaining restitution.

Kennedy said such an approach would undermine a purpose of restitution, which is to make defendants aware that their crimes have victims, because many offenders would have to pay nothing.

Still, he said, “the victim should someday collect restitution for all her child pornography losses, but it makes sense to spread payment among a larger number of offenders in amounts more closely in proportion to their respective causal roles and their own circumstances.”

Paul Cassell, who argued the woman's case at the Supreme Court, posted her statement on the Volokh Conspiracy website. “I really don't understand where this leaves me and other victims who now have to live with trying to get restitution probably for the rest of our lives. The Supreme Court said we should keep going back to the district courts over and over again but that's what I have been doing for almost six years now,” she said.

She has so far received more than $1.75 million from people convicted of possessing pornographic images of her, Cassell told the court. Of that total, $1.2 million came from one man, Arthur Staples, a Virginia sheriff's deputy who had more than $2 million in retirement savings.

The case is Paroline v. Amy Unknown and U.S., 12-8561.