Restitution Orders for Defendants Convicted of Viewing Online Child Pornography
How much should a defendant pay who has viewed an online, pornographic image of a child? Should a victim be entitled to full compensation every time someone looks at the images?
Federal and state laws prohibit producing, possessing, or distributing child pornography (as well as other related crimes). However, penalties vary widely according to the specific circumstances of the crime, and whether the case falls into state or federal jurisdiction. (To read more about each state’s approach to child enticement and pornography, see What is the Crime of Child Enticement?, and click the link to your state.)
Victims are often awarded restitution (a money payment) from the convicted defendant, but the amount also varies widely. This article discusses a recent (April 2014) Supreme Court decision about how to determine the amount of money paid to victims of child pornography, which may impact future state court award amounts. (Paroline v. United States, 12-8561, 2014 BL 112713 (2014).)
Determining Restitution Amount
In April 2014, the Supreme Court ruled that the most appropriate way to determine money paid in restitution to victims of child pornography is a “reasonable and circumscribed” approach that considers “the defendant’s relative role” in the child’s victimization. This is in contrast to “a precise mathematical inquiry,” as Justice Kennedy wrote, “and involves the use of discretion and sound judgment” in coming to an amount to be paid by the defendant to the victim.
This judgment set aside a lower court award of $3.4 million to the victim in this case (who is referred to as “Amy” in court papers to protect her privacy); to be paid by the defendant, who was convicted of viewing images of Amy being sexually victimized when she was a child.
That lower court award was based upon a 1994 federal law that allows victims to recover the full amount of their losses from any individual convicted of producing, possessing, or distributing the pornography depicting that victim. (The victim’s losses, as in Amy’s case, may include items such as lawyer’s fees, the cost of therapy, lost income, and other related factors.)
The 1994 law is based on the idea that each instance of production, possession, or distribution is a new act of violence and victimization against the child victim. Following this reasoning, the law allows the victim to recover in full from each person who commits a new act of victimization.
The recent Paroline opinion remands (sends back) the case to the lower court for it to determine a smaller award to be paid to Amy, using the "discretion and sound judgment" standard articulated by Justice Kennedy. The opinion will also affect how state laws punishing the same behavior will be formulated and applied, discussed below.
Impact on State Laws
As state legislators continually work on new state laws to protect children from falling victim to sexual abuse, and to compensate those who are victimized, they also determine the proper restitution approach. The CASE opinion's “reasonable and circumscribed” approach to determining a restitution amount (aiming to balance the defendant’s relative role in the victimization and a “fair” amount to be paid to the victim) will likely show up in various forms in future state laws.
This decision will also be used as guidance for judges who will hear cases similar to Amy’s in state courts. Supreme Court decisions are viewed with gravity in state judge’s own decisions, and so it is also likely that future state court decisions will incorporate the “reasonable and circumscribed” approach to determining a restitution amount.
Talk to a Lawyer
If you have been convicted of a crime related to child enticement or pornography, speak to a local criminal defense lawyer. These crimes often incur harsh fines and long prison terms. Only a qualified attorney can give you legal advice about how state (and federal) law applies to the unique circumstances of your case, and recommend the best course of legal action for you.