9/28/2011

By Barrie H. Newberger, J.D. Candidate

The Second Circuit became the latest circuit to find a proximate cause requirement in 18 U.S.C. § 2259, the statute that orders mandatory restitution from those who sexually exploit or abuse children.[1] Only one circuit, the Fifth, of the six to consider the issue has found that § 2259 does not have a proximate cause requirement.[2] Whether proximate cause is required under § 2259 only recently became an issue with the novel use of the statute as a means to seek restitution from “end-users” of child pornography, that is, those convicted for possession and not production.[3] Since the circuits have begun reviewing the issue in the last few years, the debate has gained widespread attention. The debate becomes more and more relevant as the internet, and our inability to control it, grows. Though the majority of circuits require that proximate cause is shown, some people still argue against the requirement and favor a broad reading of the statute that would make it easy for those portrayed in images to collect from the end-user.[4] Some type of monetary penalty for possessing child pornography is probably a good idea. However, the view that merely posits that there should be no proximate cause requirement, and the rhetoric used to support it, is oversimplified and has significant implications for how we think about internet crime and child sexual abuse. When considering the debate, multiple factors should be taken into account, but more attention should be given to two often overlooked matters: the inextricable nature of the contact offense that created the child pornography and to the outdated nature of the case law supporting some of the argument for restitution from end-users.

The Harm From End-Users Originates From the Contact Sexual Abuse

A frequent argument in support of broad restitution awards paid by end-users is that the victim’s knowledge that the image of her abuse is on the internet and widely disseminated is traumatic by itself. This trauma, the argument goes, is separate from the initial abuse and can require ongoing treatment, often resulting in the inability to attend school or work.[5] The strength of this argument should be questioned, for it does not hold without first relying on the presence of the initial abuse. Finding that these victims were harmed by the commission of a child pornography possession offense precludes one from ignoring the initial contact sexual abuse – but for this abuse, and the abuser making images of the abuse and publicizing them, there would be no possibility of harm from end-use. This argument is even more untenable when one considers the fact that in seeking restitution, victims are alleging that the defendant in a particular case has caused them separate harm by possessing their images because of the knowledge of the possession. However, if not for the National Center for Missing and Exploited Children alerting those depicted in the images every time an end-user is arrested, the victim would not be subjected to the knowledge that a particular defendant possessed an image of the abuse.[6]In fact, when a victim seeks restitution from an end-user, she frequently submits documentation of therapy and lost-earning reports done before a defendant was even arrested.[7] Thus, it is hard to escape the fact that the harm “associated with possession of child pornography is purely derivative of the harm associated with child sex abuse.”[8]

Another justification for requiring restitution from end-users is that by possessing the images, child pornography offenders contribute to a market that encourages the sexual abuse.[9] However, there is no evidence that those who sexually abuse a child would not do so if he or she could not record the abuse and subsequently distribute it. To assert this ignores the separate problem of sexual abuse in our society and makes a remarkable assertion that lacks any proof. Thus, the idea of requiring end-users to pay restitution to victims of sexual abuse depicted in child pornography because the end-users are responsible for the initial abuse is not the correct way to discuss mandatory restitution for these victims.

Times Have Changed: The Internet Creates a Different Kind of Problem.

The seminal case used in support of the position that those depicted in images of child pornography are victims is almost 30 years old.[10] Obviously, this case was decided before the internet was the phenomenon that it is. Yet, many proponents of broad restitution awards cite the language in Ferber that notes the harm done to victims of sexual abuse when a permanent record of the abuse is created and the importance of closing the “distribution network for child pornography.”[11] It is problematic to use as support for modern-day restitution awards an analogy between the historical pornography market and the current marvel that is the internet. Ferber owned an adult bookstore from which he sold videos that depicted children engaged in sexual acts.[12] The market-based argument regarding child pornography may be more rational in that situation. Yet, the internet has created a different scenario. It takes far less effort or cooperation from others for someone who records sexual abuse to put the images on the internet than it does to distribute videos to businesses for resale. Moreover, end-users are often unaware of each and every image they possess and are very far removed from the creator of the pornography; many do not pay for or make money from the images. Using as support a 1982 case involving a profit-seeking establishment to support the assertion that restitution from modern-day end-users closes the market that leads to child sexual abuse is highly debatable.

As a matter of policy, requiring child pornography offenders to pay some type of monetary penalty is likely a good idea. Instituting a fine that is distributed to those portrayed in the circulated images to assist in their counseling costs could aid in helping end-users to realize that possessing child pornography is not a victimless crime. However, arguing for individualized restitution awards based on an analysis that separates the harm of pornography from the harm of sexual abuse, and fails to realize that the former harm is derivative of the latter harm, will not help anyone, mainly the victims of sexual abuse. Focusing on end-use as the primary harm in child pornography has significant implications. For if we stress too much the harm that end-users cause the victims to suffer by creating a market for sexual abuse, we miss the real conversation on child sexual abuse, specifically regarding the secrecy that often goes along with long-term sexual abuse.[13]