A bold gambit to reduce demand for child porn
Federal prosecutors and a New York lawyer are persuading courts to order anyone caught with illicit images to pay financial restitution to child victims.
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"This is an ongoing crime, an ongoing harm, that will never end," he says. "There is nothing that she can do, or I can do, or the US attorney can do, or anyone in the world can do to stop this crime."Skip to next paragraph
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Marsh adds: "All she wants is for people to stop looking at her and exploiting her over and over again."
Such an expansive view of restitution liability may introduce a strong deterrent to the flourishing exchange of child porn on the Internet. And it can help empower child victims, Marsh says.
But some legal analysts question whether Marsh's broad reading of the restitution statute will survive legal scrutiny by appellate judges.
In February, a federal judge in Connecticut issued the first known order authorizing restitution in a child pornography possession case. Alan Hesketh of Stonington had been sentenced to 6-1/2 years in prison for possessing and trading some 2,000 images. Child-abuse analysts identified Amy among seized photos.
According to court documents, the photos, as traded, show a young girl (Amy) being forced to perform graphic sexual acts with an adult (her uncle).
Mr. Hesketh's lawyer argued that his client did not create the photos or participate in Amy's abuse. Federal prosecutors and Marsh countered that the ongoing distribution of the photos perpetually victimizes Amy. The judge examined Hesketh's financial assets and ordered him to pay Amy $200,000. According to a federal prosecutor, the case ultimately settled out of court with Hesketh agreeing to drop his appeal and pay $130,000.
Photos of Amy were also discovered among seized materials in the Florida case. James Freeman of Santa Rosa Beach was convicted in January of trading images of child pornography via the Internet. Because he was a registered sex offender with a prior offense and was charged under a new statute, he was sentenced to life in prison.
In addition, the trial judge ordered Mr. Freeman to pay Amy $3,263,758.
"My main argument was lack of causation," says federal public defender Thomas Keith, Freeman's lawyer. "He didn't cause the harm; it was caused before."
Both the restitution order and Freeman's life sentence are being appealed to the 11th US Circuit Court of Appeals in Atlanta. The Freeman case is likely to emerge as a test case of Marsh's aggressive restitution approach.
Mr. Keith says the prosecutor and Marsh urged the judge to hold Freeman responsible for Amy's past, current, and future medical and counseling costs, as well as compensation for lost income. He said the restitution order does not explain how the judge reached the $3.2 million amount. Freeman's only significant asset is a $40,000 retirement account, the defense lawyer says.
Marsh says there is no shortage of child victims, but that most are still minors and remain unidentified. But even if more victims file more restitution claims, he says, it is not clear the efforts will provide a financial jackpot for victims.
"What we are finding is that the vast majority of these people are indigent," Marsh says.