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Sherry F. Colb

Should Possession of Child Pornography Require Reparations to the Child?


Wednesday, February 17, 2010

At the age of eight, "Amy" (a pseudonym) suffered sexual assault at the hands of her uncle, a man who was subsequently convicted and sent to prison. Amy's ordeal is not entirely over, however. While molesting her, her uncle videotaped his crimes and distributed the pictures (both moving and still) to consumers of child pornography. As a result, images of Amy's molestation continue to circulate on the Internet, over a decade after the abuse took place, and the images regularly emerge when police arrest and search people who are in possession of child pornography.

Amy has sought restitution (a legal term for compensation) from people who have been found in possession of her images in 350 criminal cases nationwide. Because of the Crime Victims Rights Act, victims receive notification when child pornography containing their images comes to light, and that is how Amy learned about some of the people who have pleasured themselves by watching her being sexually abused.

In seeking restitution from those caught in possession of these materials, Amy claims that the defendants owe her money because they have contributed to her suffering through their possession of the videos. Some courts have been very receptive to her arguments and have awarded generous restitution, while others have refused to award anything at all.

In this column, I will evaluate Amy's claims against those who have been criminally charged with possession of child pornography in which she appears.

Why Some Courts Resist Amy's Claims

Before seeking to understand why Amy might be entitled to restitution, it is useful to consider some of the arguments that opponents mobilize against a monetary award.

First, they say, the possession of child pornography does not itself inflict any harm on Amy. Rather, they contend, the harm began and ended with the sexual assault committed by Amy's uncle, and he is therefore, properly, subject to criminal punishment and whatever restitution she is able to exact from him. In other words, this argument goes, we have a perpetrator here, and that perpetrator is Amy's uncle, not the people who downloaded images of his crime.

Second, some argue in the same vein that those in possession of child pornography have no relationship to Amy or to any of the other victims who appear in child pornography. Those who endorse this argument suggest that one cannot owe money to someone with whom one has no relationship at all. An individual's possession of the images of Amy, on this approach, does not alter Amy's life for the worse at all.

Third, some have claimed that even if one believes restitution is, in theory, appropriate, it is impossible to calculate how much to award. As a result, they say, there will be wildly varying assessments of the proper amount of restitution by different judges – as, in fact, there have been up until this point. Two Florida judges, for example, each ordered convicts to pay her over three million dollars, while a California judge ordered a payment of only $5000, and a Texas judge refused to award anything. Awards will depend entirely on the subjective reaction of the criminal court judge, rather than on any predictable or uniform method for determining compensation. Given this inherent arbitrariness, some conclude, it does not make sense for the law to be involved in dispensing restitution.

And fourth, there are those who contend that any compensation should occur in the context of a civil lawsuit, rather than in criminal court. Criminal courts, they reason, are best suited to address factual determinations and penalties, and are far less able to determine issues of compensation than civil courts are.

Why We Criminalize Possession of Child Pornography

To respond to these arguments opposing Amy's claims, it is useful first to consider the reasons our society has for criminalizing the possession of child pornography at all. That is, if we are to understand the role of compensation in a criminal prosecution for possession, then we must first examine the "wrong" that we believe takes place when people possess the material at issue.

One reason to punish the possession of such material is that market demand (as evidenced by possession) drives at least some portion of the misconduct itself. If there were no market for watching child pornography, then those who commit acts of sexual molestation for the camera might not do so anymore (or might do so much less frequently than they do). Those who want to view the materials, and who act on that desire by downloading them, thus motivate the conduct that gives rise to the product that they possess. Accordingly, to the extent that criminalizing possession deters some people from demanding child pornography, this deterrence helps to reduce the acts of abuse that feed the supply as well.

A second reason to punish possession of child pornography is the invasion of privacy that watching someone being molested represents. As Amy describes it, the knowledge that people are watching her being sexually assaulted feels like an additional assault to her.

To appreciate the way in which possession indeed invades a victim's privacy, consider the pedophile who uses binoculars to peer into a child's bedroom across the street, through a break in the blinds, so that he can masturbate as he watches the child undress every night. In this situation, no one is physically molesting the child, and there is therefore no more salient perpetrator to distract us – in the way that there is in the case of Amy's uncle. Rather, the only culprit in this scenario is the pedophile who watches the child undress. The same is true when a Peeping Tom targets an adult male or female to watch with binoculars in this way.

The person in possession of child pornography does not watch Amy in real time, of course, as the Peeping Tom would, but the harm is of the same kind. Someone who has no legitimate business or permission to be looking at her body is doing so. That he is watching her being violated, rather than just observing her living her life, does not mitigate the invasion. To be raped or sexually abused is both a violent and a degrading crime, and no victim wants a prurient audience to witness such an act.

How Defenders of Restitution Might Respond to Its Detractors

Carrying over these ideas to the restitution area, we can identify how defenders of restitution might respond to its detractors.

First, proponents of restitution could point out that the consumer of child pornography is not innocent of the molestation that takes place to produce the product. As discussed above, the consumer motivates the producer to produce, and the production of child pornography generally involves the sexual violation of children. It was the large numbers of people already interested in possession of child pornography that assured Amy's uncle that he could make a profit by producing more. And consumers are surely aware that their consumption drives the creation of more images.

By analogy, as I have discussed elsewhere, people who consume animal products are participants in the suffering and death of the animals who are tortured and killed to make the products. By eating eggs, the consumer motivates the producer to breed more egg-layers and to kill the male chicks born of the egg-layers (and to kill the egg-layers themselves, once they are "spent"), all of which is part of how a supplier can meet demand. By eating dairy cheese, the consumer motivates the farmer to impregnate the cow (or sheep or goat) and then take her baby away from her and kill him for veal or another "delicacy." And the same is true for consumers of fish, chickens, turkeys, and other sentient creatures. By reducing and ultimately eliminating the demand for animal products – that is, by being vegan – we can eliminate the producers' incentive to commit this violence against animals in the first place.

In the case of child pornography, there is a second reason to require the consumer to pay restitution to the particular victim who appears in the film that he possesses (as opposed to paying some other victim of the same sort of offense). The consumer of child pornography has a direct relationship with the victim of molestation depicted in the film: He is her Peeping Tom. Quite apart from the causal connection between consumption and production (or, in economic terms, "demand" and "supply"), then, the relationship is specific to the child or children being watched: By watching Amy getting sexual abused, the viewer invades Amy's privacy (in addition to motivating other child pornographers to victimize and film her and other child victims). In that sense, it is appropriate to ask the possessor of child pornography to compensate Amy (and any other victims who might appear in his films), because he violated her particular privacy by watching her being molested.

How Much Restitution Should Victims Like Amy Receive?

Some of the above objections to restitution have more to do with practicality than they do with justice. Closely examined, such arguments are unpersuasive. They say, for instance, that it is difficult to calculate precisely how much money Amy should receive, and therefore, that we should simply get out of the business of awarding monetary restitution.

To the extent that we agree, however, that Amy and those like her are owed something rather than nothing, we replace uncertainty and some arbitrariness with certain injustice when we eliminate the option of recovering restitution altogether. In other areas of law, we have rightly settled for estimation when perfect calculation seems impossible, as discretionary awards for pain and suffering attest.

Another argument of those who oppose restitution for victims like Amy is in tension with the "impossible to estimate" point. This argument holds that Amy should bring a civil suit, rather than ask for restitution in criminal court. However, if it is indeed impossible to calculate the "right" number to assign to the harm committed by a possessor of child pornography, then in what sense could we expect a civil jury to do a "better" job of accomplishing the calculation than a criminal court judge would?

Restitution Is a Win-Win Proposition

From the perspective of the victim of child pornography – the child and the adult that she later becomes, if she survives the assault – her assailant and every viewer have robbed her of something profound. They have all participated in her suffering and degradation, and they continue to do so as long as the material circulates. Because the Internet works as it does, this can mean the rest of a victim's life.

Though money cannot completely restore any victim to what she would have been in the absence of trauma, its award – whether through civil damages or restitution – represents a recognition of what has been unjustly taken from her. And that acknowledgement can, in and of itself, be a source of validation and comfort for a victim. The amounts will necessarily be indeterminate (as we have seen in the great disparities between awards granted in criminal courtrooms across the nation). Yet that indeterminacy does not negate the substantial benefits to victims of requiring perpetrators to pay them reparations.

In one sense, reparations also help to remind the perpetrator – in this case, the violator of a child's intimate privacy – that what he did harmed an individual – that his conduct was not simply a private, "victimless" transaction. In another sense, the availability of reparations expresses society's interest – as captured by the criminal court's involvement – in both protecting victims and redistributing wealth from those who have stolen what was never theirs to take, to those who represent the very real, individual victims of that theft.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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