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Image Exploitation: Federal Remedies for Child Exploitation

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This presentation discusses federal criminal and civil remedies for victims of child pornography and online exploitation under United States law including restitution and Masha's Law under 18 USC 2259 and 18 USC 2255.

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Image Exploitation: Federal Remedies for Child Exploitation

  1. 1. IMAGE EXPLOITATION FEDERAL REMEDIES FORCHILD EXPLOITATION JAMES R. MARSH
  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. FEDERAL CHILD PORNOGRAPHY VICTIM REMEDIES • 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) • 18 U.S.C. 2255 – federal civil remedy (Masha’s Law) • 18 U.S.C. 2252A(f) – additional federal civil remedy
  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 restitution
  5. 5. THE VICTIM'S ATTORNEY • Receive communications which might upset the client • Documentation for restitution • Refer to treatment and services • Advocate for client • Ensure client’s best interests
  6. 6. 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
  7. 7. CONTENTS OF RESTITUTION REQUESTS Forensic Evaluations which may include: • Psychological • Medical • Vocational / Educational • Economic / Lost Income Other Expenses such as transportation, child care, proximate result of the crime
  8. 8. PAROLINE V. 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
  9. 9. ROADTOTHE SUPREME COURT Circuit Case Date First Chiradio / Kearney July 2012 / February 2012 Second Aumais / Lundquist September 2011 / September 2013 Fourth Burgess July 2012 Fifth Paroline / Wright November 2012 Sixth Gamble / Crawford February 2013 Seventh Laraneta November 2012 Eighth Fast March 2013 Ninth Kennedy / Cantrelle October 2012 Tenth Benoit April 2013 Eleventh McDaniel / Webb January 2011 / September 2011 DC Monzel April 2011
  10. 10. JUSTICE KENNEDY WROTETHE MAJORITY DECISION 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.
  11. 11. 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”
  12. 12. 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. Justices Roberts, Scalia, and Thomas
  13. 13. CRISOSTOMI (RI JULY 2014) 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. REYNOLDS (EDMI AUGUST 2014) Paroline suggests that district courts, ‘as a starting point, determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images’…[T]he Court believes…it is simply not possible for the Government to ‘as a starting point,’ the amount of losses caused by the ‘continuing trafficking’ in Cindy and Vicky’s images. This theoretical starting point will simply not exist in many
  15. 15. MINER (NDNY SEPTEMBER 2014) 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.
  16. 16. AUSTIN (DNV SEPTEMBER 2015) 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.
  17. 17. AYER (DNV NOVEMBER 2015) While the Paroline factors offer some guidance, the practical application of those factors is extraordinarily difficult.
  18. 18. MILLER (EDMI NOVEMBER 2015) It is extremely difficult to quantify the loss sustained by these minor victims.
  19. 19. DILEO (EDNY NOVEMBER 2014) 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. CAMPBELL-ZORN (MT DECEMBER 2014) These tools provided by Paroline, while seemingly useful in a theoretical sense, have proven to have very difficult, and very limited, practical application.
  21. 21. GALAN (DOR JULY 2014) 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. SCHULTZ (DMA OCTOBER 2015) 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.
  23. 23. GALAN (9TH CIRCUIT 2015) 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.
  24. 24. GALAN (9TH CIRCUIT 2015) 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;
  25. 25. AMY, VICKY, AND ANDY CHILD PORNOGRPHY VICTIM ASSISTANCE ACT OF 2018 • 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 defendant’s 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 • Signed into law on December 7, 2018
  26. 26. TIMELINETO PASSAGE • 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 • December 31, 2016 – AVA dies again at the end of the Congressional session • November 16, 2017 – Amy Vicky and Andy Act Introduced in the Senate (S.B. 2152) • January 23, 2018 – Passed the Senate by Unanimous Consent • September 28, 2018 – Passed the House by Unanimous Consent • November 15, 2018 – Passed the Senate by Unanimous Consent • December 7, 2018 – Signed by the President and becomes Public Law 115-299
  27. 27. 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.”
  28. 28. ROTHENBERG (11TH CIRCUIT 2019) • A victim does not need to separate the harm caused by the original hands-on abuser from the harm caused by distributors and possessors of images of the abuse; Disaggregation is NOT required. • A court is not required to follow other court’s decisions on restitution for a particular victim, nor must it justify why it disagrees with other another court’s restitution determination. • A court should affirmatively recognize the defendant’s role as either producer, distributor, or possessor. • Evidence that a child pornography victim was aware of and specifically harmed by a particular defendant is not required. • Determining restitution is an “inexact science.” • A declaration from the victim’s attorney outlining the likely costs of treatment based on the attorney’s experience with eight other victims is sufficient to support a restitution request of $100,000 for treatment.
  29. 29. WHITLEY (NDIL 2019) CHILD TRAFFICKING CASE • Chastises the government for an incomplete submission on behalf of the victim. • A victim need not use restitution for therapy or for any specific purpose: “We compensate a victim with restitution, that is money – whether she chooses to use the money in a particular way is up to her.” • Restitution should cover a child’s losses over her lifetime. A minor victim will certainly have future expenses. • Recognizes physical health problems and scientific research on trauma. • Among many authorities cites CDC study estimating > $200,000 lifetime per victim burden of child sex abuse. • Orders the court clerk to set up a trust for the four minor victims.
  30. 30. 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.
  31. 31. 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
  32. 32. CIVIL REMEDIES UNDER 18 U.S.C. 2255 LAW 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
  33. 33. MARSH LAW FIRM PLLC james@marsh.law ● 212-372-3030 ● www.marsh.law

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