This document summarizes federal laws and assessment techniques related to child pornography victims. It outlines federal criminal statutes that provide restitution and other remedies for victims. It describes assessment methods including interviews, psychological testing, and standardized instruments. It discusses the added trauma victims face and common survivor impacts. The document also reviews recent case law updates and outlines civil remedies under federal and state laws.

1. CHILD PORNOGRAPHY UPDATE
Federal Causes of Action for Child Exploitation

2. 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

3. Assessment Techniques
 Evaluation is focused on exploring the events leading up to the
child pornography production and its subsequent victim impact
 Review of documents
 Should the evaluator view the child sex abuse images [CSAM]?
(new AVAA victim right)
 Should the evaluator contact formal and informal network?
 Interviews with victim(s)
 Interviews with supportive adults
 Psychological testing of victim and caregiver
 Victims and supportive adult complete standardized assessments
 Assessment of economic impact

4. Interviews
 If the victim has supportive caregivers, they may also be as
traumatized and sometimes more than the victim themself
 This kind of victimization also affects other family members
 Because of the unique nature of internet child pornography,
structured interviews are probably not advisable
 Semi-structured interviews
 The reason the person is there
 Details about the internet child pornography
 Its impact generally
 Follow-up with specific domains of impact

5. Tests and Standardized Instruments
 MMPI-A
 PAI (Personality Assessment Index)
 PSI (Parental Stress Index)
 PSS (Post-Traumatic Stress Disorder
Symptom Scale)
 OASIS (Overall Anxiety Severity and
Impairment Scale)
 PLC-S (Problems and Complaints
List—response to stress)
 Child Behavior Checklist
(completed by caregiver)
 Youth Self Report
(completed by child)
 Trauma Symptom Checklist for
Children (completed by child)
 Trauma Symptom Checklist for
Young Children
(completed by caregiver)
 Trauma Symptom Inventory

6. Added Trauma From Child Pornography
Lack of control over the process of disclosure
Lack of resolution since the images remain available
Shame and responsibility for having “let this happen”
(implicit complicity)
Responsibility for involving others seen and unseen
Quayle, Loofe and Palmer, 2008

7. Survivor Impact
 Feeling ashamed, guilty, or humiliated: 74%
 Worrying that people will think you were a willing participant: 54%
 Feeling it was your fault the images were created: 51%
 Worrying that people will recognize you in public: 48%
 Worrying about friends or other people seeing the images: 48%
 Embarrassed by police, social workers, others seeing the images: 41%
 Refusing to talk with anyone about the images: 36%
 Refusing to talk with police or counselors about the images: 31%
 Refusing to be photographed or videoed by family or friends: 29%

8. Legal Framework
 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

9. Amy, Vicki, Andy Act Update
 Signed into law on December 7, 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 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

10. 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.

11. 18 U.S.C. 2255
Law updated 30 January 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 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

12. Creative Possibilities
 Hidden causes of action in 18 U.S.C. 2255: Review ALL Predicates
(currently 14 separate provisions with new predicates being added all the time)
 Courts have interpreted statute broadly with few limitations − Boland line of cases
 Injunctive relief − sexting
 Mann Act 18 U.S.C. 2241(c) “crosses a State line with intent to engage in a sexual
act with a person who has not attained the age of 12 years”
 18 U.S.C. 2421 transports or attempts to transport with intent to engage in any
sexual activity for which any person can be charged with a criminal offense
(fornication in Idaho, Illinois, Massachusetts, Mississippi, South Carolina, the
District of Columbia, and Utah)

13. Case Law Update
 Criminal restitution does not bar civil recovery — Doe as next friend for Jessy v. Dinkfeld,
2019 WL 3340690 (C.D. Cal. July 25, 2019)
 Plaintiff can proceed by pseudonym — Doe v. Fowler, 2018 WL 3428150 (W.D.N.C. July 16, 2018)
 Attempted violation of a criminal predicate is valid COA — N.S. v. Rockett, 2018 WL 6920125
(D. Or. Oct. 19, 2018)
 No personal injury requirement; child pornography is a de facto personal injury — Amy v. Curtis,
2020 WL 5365979 (N.D. Cal. Sept. 8, 2020)
 No secondary or vicarious liability by institutions in child pornography production and hands-on
cases — Doe v. Hansen, 2018 WL 2223679 (E.D. Mo. May 15, 2018)
 No qualified immunity for state defendants — Sims v. Labowitz, 885 F.3d 254 (4th Cir. 2018)
 Plaintiff identification remains a challenge — United States v. Denault-Reynolds,
810 F. App’x 38 (2d Cir. 2020)

14. Case Law Update
 Judicial notice of criminal docket and collateral estoppel of criminal acts — A.B. by & through Olson v.
Kowalczyk, 2020 WL 4925683 (D. Or. Aug. 21, 2020)
 Discovery can be limited — W.L. as Next Friend of W.L. v. Zirus, 2020 WL 836520 (W.D. Tex. Feb. 20, 2020)
 Infant Compromise can be done in federal court proceeding — Lily v. Cooper, 2020 WL 5742933
(S.D. Cal. Sept. 25, 2020)
 Non-dischargeable in bankruptcy: violations of child pornography statute are “willful and malicious
injuries” — In re Boland, 946 F.3d 335 (6th Cir. 2020)
 Attorney’s Fees — Doe v. Jenner, 2019 WL 4051964 (M.D. Fla. Aug. 28, 2019)
 Plaintiff is entitled to post-judgment interest per 28 U.S.C. 1961
 Coming Soon: 18 U.S.C. 2258 (failure to report child abuse) — In re USA Gymnastics, 2020 WL 1932340
(Bankr. S.D. Ind. Apr. 20, 2020)

15. MARSH
LAW FIRM
james@marsh.law ● 212-372-3030 ● www.marsh.law