Friday, April 25, 2014
Here is an op-ed I wrote for Gannett on the U.S. Supreme Court's decision in Paroline vs. U.S.: http://www.statesmanjournal.com/story/opinion/2014/04/25/congress-listen-child-sex-abuse-victims/8172953/. The battle to help restore victims of child pornography will now shift to Capitol Hill. There is a critical role for law school clinics to play and I hope that you will consider joining the effort.
Wednesday, April 23, 2014
This morning the U.S. Supreme Court issued its decision in Paroline v. U.S. (http://www.supremecourt.gov/opinions/13pdf/12-8561_7758.pdf). The case involved the question of how to determine restitution for victims of child pornography. Although the majority opinion, written by Justice Kennedy and joined by Justices Ginsburg, Breyer, Alito, and Kagan, agrees with the victim and the government that restitution is mandatory, it held that courts should determine on an individualized basis each defendant’s unique role in the causation of the victim’s losses and then be held liable only for that limited amount.
This interpretation renders the mandatory restitution statute (18 U.S.C. §2252) untenable. Child pornography victims are routinely harmed by thousands of perpetrators many of whom are never identified, let alone prosecuted. It places a significant burden on courts, the government, and victims to try to calculate the relative harms caused by each individual perpetrator. Moreover, perpetrators are routinely found to possess or distribute child sex abuse images involving numerous victims. Thus, courts, the government, and victims would have to make this complex determination for each individual victim. The process as described would be highly inefficient, ineffective, and will lead to victims reliving their sexual abuse trauma indefinitely through the court system.
Thus, a legislative solution must be generated. According to the dissent, which was drafted by Chief Justice Roberts and joined by Justices Scalia and Thomas, “Congress set up a restitution system sure to fail in cases like this one.” Congress simply imported a generic restitution statute “without accounting for the diffuse harm suffered by victims of child pornography.” According to the dissent, the mandatory restitution statute is untenable and Congress should be given the opportunity to fix it.
Justice Sotomayor also dissented, but on entirely different grounds. She, essentially, agrees with the victim in this case, “Amy,” that each defendant should be held liable for the full amount of each victim’s losses. She, too, invites Congress to recodify the mandatory restitution statute to make clear that its command to award full restitution to victims of child pornography. Congress should accept the invitation.
Here is Amy’s response to the decision:
“I am surprised and confused by the Court’s decision today. 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. It’s crazy that people keep committing this crime year after year and now victims like me have to keep reliving it year after year. I’m not sure how this decision helps anyone to really know if, when, and how restitution will ever be paid to kids and other victims of this endless crime. I see that the Court said I should get full restitution “someday,” I just wonder when that day will be and how long I and Vicky and other victims will have to wait for justice.”
Willamette’s Child and Family Advocacy Clinic originally filed an amicus brief on behalf of the Dutch National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children in this case (http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs-v3/12-8561_resp_amcu_dnrthbsvc.authcheckdam.pdf) and I previously published a guest opinion on Paroline v. U.S. with Jurist (http://jurist.org/forum/2014/02/warren-binford-paroline-supreme.php).