Federal prosecutors are embracing an aggressive approach to fight the spread of child pornography on the Internet, urging judges across the country to order full restitution to identified child victims in cases where the defendant possessed the images but played no role in their creation.
Last month, a federal judge in Pensacola ordered a Florida man to pay $3.2 million to one of the children depicted in photos he downloaded to his computer. The judge ordered the payments – for lost income and treatment sessions – though the man had never met or had any contact with the girl.
"Each and every individual who possesses and downloads these images victimizes these children," Senior US District Judge Lacey Collier said.
Generally, restitution is awarded in cases where a defendant's direct actions caused the injuries suffered by the victim. In a child pornography case, the person most responsible for injuring the child is the pedophile who abused the child, recorded images of the abuse, and then traded or sold those images to others.
But child-victim advocates say that is not the only harm. Those who download child pornography help set the stage for future abuse by fostering an active market for such images.
At the urging of child advocates, federal prosecutors are working to convince judges in child pornography possession cases to order full restitution to any child who can be identified among seized images. The approach radically expands personal liability for child pornography beyond those who created and spread the illegal images to anyone who downloads or views the resulting depictions.
This novel – and controversial – strategy is the brainchild of New York lawyer James Marsh. He represents a 20-year-old woman who was raped and sexually abused at age 8 or 9 by an uncle who recorded the abuse and sent the images to a pedophile who requested them. The resulting still photographs have been actively traded on the Internet since 1998.
The woman is identified in court papers as "Amy," and photos of her form the basis of the $3.2 million restitution order in Florida. Her pictures have been among seized materials in more than 700 child pornography cases.
Mr. Marsh has filed restitution claims on Amy's behalf in 200 cases pending in federal court. "For the first time, victims are coming forward to seek restitution under a federal statute which by and large has never been utilized," he says.
At the moment, only two child victims are seeking restitution in ongoing child pornography possession cases. The other victim, who is not represented by Marsh, is a 19-year-old from Washington State who was sexually assaulted by her father when she was 10 and 11. He photographed the abuse and distributed the images on the Internet, where they continue to be downloaded and viewed.
Marsh says he is not seeking restitution for the original crime of sexual assault of a child. His claims on Amy's behalf are based on the idea that those who possess images of his client's abuse are guilty of a current violation of her privacy rights.
"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."
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.