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Image Exploitation

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Federal Remedies for Child Exploitation in the United States

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Image Exploitation

  1. 1. IMAGE EXPLOITATION FEDERAL REMEDIES FORCHILD EXPLOITATION INTHE UNITED STATES
  2. 2. LEGAL INTERVENTIONS • Child pornography is like drug crimes: production, distribution, trafficking, possession, plus facilitating, advertising, and enticing • Mandatory minimum sentences in the federal courts, most state courts are much more lenient • 2/3 of the criminal prosecutions are in state courts • No federal “rape” statute – child pornography prosecutions only address production of the images, not hands-on acts • Federal restitution for victims and state crime victim funds • Both federal and state civil remedies for victims
  3. 3. CHILD PORNOGRAPHYVICTIM REMEDIES • 18 U.S.C. 2255 – federal civil remedy (Masha’s Law) • 18 U.S.C. 2252A(f) – additional federal civil remedy • 18 U.S.C. 2259 – federal criminal remedy (restitution) • 18 U.S.C. 3771 – Crime Victims’ Rights Act of 2004 • 18 U.S.C. 3509 – Child Victims’ Rights Act (privacy provisions)
  4. 4. CRIMEVICTIMS RIGHTS ACT OF 2004 • Federal Crime Victims’ Bill of Rights • Timely notice of offenses and court proceedings • Right to be reasonably heard (victim impact statement) • Right to confer with the attorney for the government • Right to full and timely restituiton
  5. 5. RESTITUTION BASICS UNDER 18 U.S.C. 2259 • “Victim” is the person harmed as a result of the child pornography crime • Restitution is mandatory • Victim is entitled to the “full amount” of their losses • Pecuniary losses – not pain and suffering or emotional damages
  6. 6. PAROLINEV. UNITED STATES • Supreme Court granted cert on June 27, 2013 • What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. § 2259 • Oral argument January 22, 2014 • Decision April 23, 2014
  7. 7. JUSTICE KENNEDY A court should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.
  8. 8. PAROLINE MAJORITY Amount should not be severe Amount should not be token, nominal, or trivial Award should be reasonable and circumscribed Victim should someday collect for all her child pornography losses “Rough guideposts” with discretion and sound judgment, but no “caprice”
  9. 9. PAROLINE DISSENT Unfortunately, the restitution statute that Congress wrote for child pornography offenses makes it impossible to award that relief to Amy in this case.…Congress set up a restitution system sure to fail in cases like this one.…[I]t would be a mistake…to lead readers to conclude that…Congress has done justice for victims of child pornography. The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it.
  10. 10. AMY,VICKI, ANDY ACT UPDATE • Intent of Congress that victims of child pornography be compensated by every perpetrator who contributes to their anguish (APSAC statement is also cited in the Congressional findings) • Restitution in “an amount that reflects the defendants relative role in the causal process” (Paroline standard) but no less than $3000 • Defined monetary assistance of $35,000 one-time payment for trafficking victims only (not production) • Defendant assessments to fund + $10 million set aside • Victim right to evidence • Progress report and fund report after 2 years
  11. 11. RESTITUTION UPDATE • April 23, 2014 ― United State Supreme Court Paroline v. United States decided • May 7, 2014 ― Amy and Vicky Act introduced in Senate • June 26, 2014 ― Amy and Vicky Act introduced in the House • July 30, 2014 ― US Sentencing Commission: vast majority criminals pay zero restitution • December 31, 2014 ― AVA dies at the end of the Congressional session • January 28, 2015 ― AVA reintroduced in the House and Senate • February 5, 2015 ― AVA clears the Senate Judiciary Committee with bipartisan support • February 11, 2015 ― Senate passes the AVA 98-0 • March 19, 2015 ― House Judiciary Crime Subcommittee holds hearing on the AVA • January 24, 2018 ― Amy Vicky and Andy Act Introduced (S.B. 2152)
  12. 12. UNITED STATES V. MINER (NDNY) As an initial matter, the Court notes that of the handful of district courts that have grappled with the matter of restitution in child pornography cases post-Paroline, several have expressed their concern with the lack of precise guidance from Congress and the Supreme Court in deciding restitution awards in these circumstances…. Having now grappled with the same issues, this Court finds that such concerns are well-founded.
  13. 13. UNITED STATES V. CRISOSTOMI (RI) It appears to this Court that some of the factors the Supreme Court suggests be considered are at best difficult, and at worst impossible to calculate in this case as in most similar cases. The Court is not entirely comfortable making such calculations in this or similar situations but believes it compelled to do so by the U.S. Supreme Court opinion in Paroline.
  14. 14. UNITED STATES V. REYNOLDS (EDMI) Paroline suggests that district courts, ‘as a starting point, determine the amount of the victim’s losses the continuing traffic in the victim’s images’…[T]he believes…it is simply not possible for the Government to show, ‘as a starting point,’ the amount of losses caused the ‘continuing trafficking’ in Cindy and Vicky’s images. theoretical starting point will simply not exist in many
  15. 15. UNITED STATES V. AUSTIN (DNV) Some courts have difficulty determining a starting point for the losses caused by the “continuing trafficking” of images.… Paroline is of limited use because no logical starting point point can be determined.
  16. 16. UNITED STATES V. AYER (DNV) While the Paroline factors offer some guidance, the practical application of those factors is extraordinarily difficult.
  17. 17. UNITED STATES V. MILLER (EDMI) It is extremely difficult to quantify the loss sustained by these minor victims.
  18. 18. UNITED STATES V. CAMPBELL-ZORN (MT) These tools provided by Paroline, while seemingly useful in a theoretical sense, have proven to have very difficult, and very limited, practical application.
  19. 19. UNITED STATES V. DILEO (EDNY) Though commentators may quarrel over the astuteness of the Supreme Court’s professed confidence in the skill of the district courts to divine a true course through this thicket…the task seems akin to piloting a small craft to safe harbor in a Nor’easter.…. The task of charting passage through these unknown waters is overwhelming.
  20. 20. UNITED STATES V. SCHULTZ (DMA) Congress is currently considering a enacting a law that would provide for a graduated system of restitution for victims of child pornography beginning with a minimum amount of $25,000 for possession. If enacted, this law would eliminate much of the present variability in victim restitution awards.
  21. 21. UNITED STATES V. GALAN (DOR) The current statutory process for restitution does not fully compensate losses suffered by child pornography victims and may, in fact, dissuade victims from seeking restitution; the end result is hardly worth yet another reminder of their continued exploitation. The court cannot remedy this problem. Rather, it is up to Congress to develop a system to truly compensate child pornography victims for the losses they continue to suffer.
  22. 22. UNITED STATES V. GALAN (9TH CIR) We do agree that this area, in which Congress has adopted a scheme that at least approaches the limits of fair adjudication, despite attempts by the courts to avoid caprice, cries out for a congressional solution.
  23. 23. UNITED STATES V. GALAN (9TH CIR) In order to obtain restitution, child pornography victims in the Ninth Circuit now have to prove—in addition to the confounding Paroline factors—”many [additional] factors” such as: • the egregiousness of the original [sex] abuse; • how a victim can (or does) cope with that kind of [rape and sexual abuse] abuse when distribution of images does not follow; • and the particular victim’s own reactions to the various traumas to which the victim has been subjected;
  24. 24. DISAGGREGATION American Professional Society on the Abuse of Children “for the victims [of child pornography], the sexual abuse of the child, the memorialization of that abuse which becomes child pornography, and its subsequent distribution and viewing become psychologically intertwined and each compound the harm suffered by the child-victim.”
  25. 25. CIVIL REMEDIES • Federal Statutory Remedies 18 U.S.C. 2255 / 18 U.S.C. 2252A(f) • State Statutory Remedies in Florida, Kansas, Louisiana, Nebraska, Nevada, New Jersey, Oklahoma, South Dakota • Invasion of Privacy: Intrusion upon Seclusion / Intrusion into Private Affairs / Public Disclosure of Private Facts • Intentional Infliction of Emotional Distress • Punitive Damages • State R.I.C.O.
  26. 26. CREATIVE POSSIBILITIES • Hidden causes of action in 18 U.S.C. 2255 • Review ALL the predicates (currently 14 separate provisions) • New predicates being added all the time by Congress • Courts have interpreted statute broadly with few limitations
  27. 27. CIVIL REMEDIES UNDER 18 U.S.C. 2255 UPDATED 30JANUARY 2018 • Clarifies that the $150,000 statutory damages clause is “liquidated damages” • Clarifies that victims can elect “actual damages” OR $150,000 in “liquidated damages” • Adds “other litigation costs reasonably incurred” to statutorily recoverable losses such as attorney’s fees • Specifically allows courts to award punitive damages • Specifically allows courts to award “such other preliminary and equitable relief as the court determines to be appropriate” • Extends the statute of limitations to 10 years after the victim turns age 18 • Adds a “reasonably discovered” provision to the statute of limitations – plaintiffs will have 10 years after they reasonably discover “the violation” or “injury” to file their action • Adds a provision providing for national venue • Adds a provision providing for national service of process
  28. 28. MARSH LAW FIRM james@marsh.law ● 212-372-3030 ● www.marsh.law

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