The Amy, Vicky, and Andy Act Is Signed Into Law

The new law will help victims of child pornography crimes receive full restitution from convicted defendants who have harmed them.

|The Volokh Conspiracy |

On Friday, President Trump signed into law the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (AVAA). The Act will help victims of what are frequently referred to as "child pornography" crimes obtain full restitution. The Act helps to resolve a thorny legal issue about how to provide restitution to victims—an issue that was addressed in a 2014 case I argued before the U.S. Supreme Court with co-counsel James Marsh, Paroline v. United States. In rejecting our position that each defendant should pay the "full amount" of a victims losses, the Court articulated a confusing view on the partial restitution to which victims like Amy were entitled. The new law will help ensure victims ultimately receive full restitution from defendants who have harmed them.

A bit of background will usefully frame the importance of the new law. Victims of some crimes—including child pornography crimes—suffer injuries caused by multiple defendants. One such victim is "Amy," who was repeatedly raped by her uncle starting when she was four years old. She disclosed the abuse, received treatment, and (according to her therapist) was "back to normal" when she was nine. Then, when she was seventeen, Amy discovered that images of her sexual abuse were among the most widely circulated in the world. The knowledge the persons around the world are viewing those images has been psychologically very harmful to Amy.

Amy's distress is not unusual. As Senator Hatch explained in remarks regarding the new act: "Child pornography is unlike any other crime. The abuse involved in creating these images profoundly alters the lives of victims, while trafficking in the permanent record of that abuse perpetuates and expands the harm. As the Supreme Court noted in . . . Paroline v. United States: 'Every viewing of child pornography is a repetition of the victim's abuse.'"

When defendants are convicted for possessing child pornography, frequently Amy's (or Vicky's or Andy's or other victims') images are among those the defendant possessed. The defendant is, accordingly, in part responsible for the emotional distress suffered by the victim. But what share of the emotional distress is any particular defendant responsible for? In Paroline, the Supreme Court interpreted the restitution law then in effect (18 U.S.C. sec. 2259) as requiring some sort of disaggregation of the responsibility for the harm suffered by a victim. In an opinion written by Justice Kennedy, a narrow majority concluded that "[i]n this special context, where it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 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. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim's general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount."

Chief Justice Roberts dissented in Paroline. He wrote: "The Court's decision today means that Amy will not go home with nothing. But it would be a mistake for that salutary outcome to lead readers to conclude that Amy has prevailed or 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."

Since the Paroline ruling, federal trial courts across the country have struggled to operationalize the Supreme Court's command to "order restitution in an amount that comports with the defendant's relative role in the causal process"—and for good reason. If (as seems quite likely) Amy is victimized by tens of thousands of viewers of her images, it may be next-to-impossible to assign some specific causal role to any particular defendant.

In 2015, I co-authored a law review article (with my co-counsel James Marsh), urging Congress to eliminate this problem by setting minimum restitution amounts. Congress has now followed that suggested approach in the AVAA.

Here are a few highlights from the new law: As factual support for the Act, Congress found that "the unlawful collective conduct of every individual who reproduces, distributes, or possesses the images of a victim's childhood sexual abuse plays a part in sustaining and aggravating the harms to that individual victim." (Sec. 2(f)). As a result, the Act requires a court sentencing a defendant convicted of a child pornography crime harming a victim to determine the full amount of that victim's losses and then to order restitution from a defendant for amount reflecting the defendant's relative role in the causal process. (Sec. 3(a)(2)(B)). But—and here's a new innovation—a trial court must impose restitution in the minimum amount of $3,000.

The AVA also creates a fund for compensating victims of child pornography trafficking in child pornography trafficking (advertising, distribution, and possession) and child pornography production. Whenever a defendant is convicted of a child pornography trafficking crime, for example, a victim has the option of electing to receive a one-time "defined monetary assistance" in the amount of $35,000 (indexed for inflation). The fund will be paid for, in party, through special assessments levied on defendants who are convicted of trafficking crimes, with an additional appropriation of $10 million per year if necessary. Attorneys' fees are capped at 15%.

From a practical point of view, with regard to restitution litigation the most salient feature of the new law will be the $3,000 fixed minimum amount. This minimum ensures that child pornography victims will not receive a token award from any particular defendant. Does this mean that the new law is subject to the same criticisms as mandatory minimum sentencing laws (criticisms that I have articulated with respect to "stacking" gun charges). The situations seem easily distinguishable:

Although reasonable people can differ on the appropriateness of such mandatory [prison] sentences, it is important to understand that the AVAA does not specify mandatory prison sentences designed to punish offenders. Instead, the AVAA is a remedial statute designed to provide compensation that is akin to joint and several liability in civil tort law. No one suggests that a tort defendant who is ordered to pay the full amount of a victim's losses is somehow subjected to a "mandatory minimum." Like joint and several liability, the AVAA spreads liability for the full amount of a victim's losses across a wide, and often ever-increasing, number of defendants who all become contributors and payors. Instead of one defendant paying one amount and another defendant paying another amount and still other defendants paying nothing, the AVAA requires all defendants to pay something according to their means and in accordance with a reasonable and proportional payment schedule under 18 U.S.C. § 3664. The inherent inequity of the post-Paroline ad hoc multi-factor driven approach is replaced by a simple and streamlined statutory assessment, which is below the statutorily established fine.

This is an excellent new law, which will help to provide full restitution to innocent child pornography victims from guilty defendants involved in child pornography crimes.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

73 responses to “The Amy, Vicky, and Andy Act Is Signed Into Law

  1. How far can we extend this justice? Might not bank tellers recoil in horror from news stories that their bank robbers are up for parole? Can PTSD sufferers sue Hollywood studios, producers, and actors when war movies are shown on late night cable? Can Al Capone’s relatives sue whenever a safe is opened which purportedly belonged to him?

    This way lies madness.

    1. Your parade of horribles sounds, frankly, far-fetched to me. None of these illustrations sounds remotely comparable to a what is very akin of well-recognized invasion of privacy torts — i.e., emotional distress coming from someone viewing images of sexual abuse of the person herself.

      1. IIED claims stem from the injury to the victim. Victim was injured by additional people seeing photos? No, victim was injured by LEARNING that additional people are seeing photos.

        So, if I had a grudge against someone, and so I went out of my way to point out that person that people were viewing photos of them not intended for publication, that might make an IIED claim.

        But if the victim is unaware of the additional viewing, how, exactly, is victim harmed? (Victim was harmed by the criminals who created and distributed the material… and those individuals should face criminal and civil liability for their offenses against victim. But random possessor, with no connection to victim? Then criminal liability for possession follows. But there isn’t civil liability unless a law specifically creates it… and so, et viola, here it is. With mandatory minimums, no less.

        As it is, we classify too much material as “child pornography”… including prosecuting people for victimizing themselves voluntarily.

        1. Hey James,

          Thanks for the thoughtful response — two more points in reply:

          1. I did not try to analogize these claims (here in this blog post) to IIED, but rather to invasion of privacy. That seems like a perfect analogy — well-established in the law — and one that you did not take on.
          2. In terms of classifying too much material as “child pornography”, The definition (found in 18 USC 2256) is:
          “child pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where?
          (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
          (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
          (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

          “Sexually explicit conduct” is also a very specifically defined term, a few paragraphs earlier.

          This seems reasonably precise and appropriate definition to me.

          1. “This seems reasonably precise and appropriate definition to me.”

            I think it’s overbroad in a couple of areas:

            First, the conflation of nudity with “sexual”, and second, the conflation of “child” with “sexually mature minor”

            Then, there’s the justification that child pornography inherently involves the exploitation of children, therefore the first amendment doesn’t apply. That’s reasonable… in cases where there’s actual exploitation of children. But when a 15-year-old takes pictures of him or herself, it’s just stupid to treat that like the case of a pedophile molesting 8-year-olds. But the statute doesn’t differentiate the two.

            1. The “it hurts them” idea is one thing, but what happens to it, after, say, they pass away (from something unrelated) and can no longer be hurt?

          2. ” I did not try to analogize these claims (here in this blog post) to IIED, but rather to invasion of privacy.”

            You did refer to “emotional distress”, which isn’t an element in any of the 4 generally-recognized invasion of privacy torts.

            In short, the injury caused by having unknown third parties viewing nude or sexually-explicit photos of one’s underaged self doesn’t really analogize well to any of the pre-existing torts, which is why the AVAA was needed to legitimize damages awards from people who viewed or possessed, but had no role in producing or distributing the images.
            The one positive (IMO) of such a statutory arrangement is that the money is moved from civil court to criminal… meaning the government is funding the prosecution, rather than the victim having to hire a lawyer to pursue repetitive civil actions as new offenders become known.

          3. I’m somewhat at a loss of the basis for (B); The law is supposedly intended to prevent victimization of minors, but in the case of computer generated images, who there’s no victim.

            Arguably, this clause actually discourages people from supplying the demand for such imagery without creating victims, by setting the penalty the same whether or not you go out of your way to avoid creating any.

            1. The National Center for Missing and Exploited Children has the largest repository of child porn in the World.

              You cannot allow the state to have pictures of banned things and then pass laws like viewing pictures is worse than murder. Murderers released dont even have lifetime registration as a rule.

              People hurting kids is bad. We already have laws against that. The 1st Amendment protects people from viewing things that some other people dont want those people to view.

            2. Computer images can be photorealistic, even if they are false (i.e., Photoshop exists) Look at the statute, and you’ll see that it applies to “identifiable” minors. This means that you can tell who it is, or who it is supposed to be. That’s who the victim is.

              If it’s a generic image where you can’t tell who it’s supposed to be, then there’s no victim.

              1. I looked at the statute. There’s an “or” in there, it applies to computer images whether or not they’re made to look like specifically identifiable people.

                So, yeah, a generic image where there’s no victim also is covered.

                1. 18 USC 2252A(7) says:
                  “knowingly produces with intent to distribute, or distributes, by any means, including a computer, in or affecting interstate or foreign commerce, child pornography that is an adapted or modified depiction of an identifiable minor”

                  So if you create an image by drawing a nekkid 12-year-old, that’s not a violation because although your picture is of a 12-year-old, it’s not an “identifiable” one. Whereas if you use Photoshop to past a Hollywood child star’s face onto a naked body, that is an “identifiable” minor, even if the body isn’t the minor’s.
                  Since the justification for excluding child porn from first amendment protection is that creation of child porn is inherently harmful to the children involved in the production, have no children harmed in the actual production would be legally shaky. But if people think the child WAS involved, that’s harm too, so “identifiable” minors Photoshopped into child porn images count, too.

            3. You’ll be happy to know that (B) is not law

              Held: The prohibitions of 2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional.

              See Ashcroft v FSC.

              But this is off-topic, it has nothing to do with the law we are discussing here that involves actual victims 😀

  2. I guess this means law enforcement literally molests every child whose photo they upload in their honey pots since if you add the bits and pieces of evidence together they’re by far and way the biggest single if not percentage child porn distributors. And the obvious defense is like a stepfather saying “I raped my child so that she could get better prepared to avoid future rapes” Oh wait, we’re magically suspending our reasoning in this case.

  3. Prof Cassell, your attempts to distinguish this minimum from the mandatory minimum laws that you have elsewhere criticized come across as incoherent and disorganized.

    Perhaps this is because you are starting from a false similarity to joint-and-several liability. Consider the following scenario: You are harmed to the tune of $10,000. The judge finds A responsible for 80% of the wrongdoing and 10 other people responsible at 2% each. Without joint-and-several liability, you get $8,000 from A and $200 from each of B-K. If K is bankrupt, you only get $9,800. With joint-and-several liability, you get the whole $10,000 and A-J have a separate proceeding about how to split up the missing $200. It is possible if A’s the one bankrupt (and maybe C-K also) that B will end up paying a lot more than his “fair share” but never more than what it takes to make you whole.

    With the structure of this law, on the other hand, you will get $8,000 from A and $3,000 from each of B-K. Your total is potentially well above the amount that you were harmed. Now you can try to argue that won’t happen but the fact is that sometimes it will. And either way, you are taking discretion away from judges just like you argue shouldn’t happen in other mandatory minimum situations.
    (con’t)

    1. Despite all the blather about this law, it is not actually about restitution. This is about punishment. I get that you want to punish child pornographers. But be honest about it.

      The way this law is worded, I predict that it will not be long at all before the first case twisting definitions and punishing the possessors far beyond even the punitive intent of the laws authors. Nothing in this article changes my belief in Ted Frank’s Law (that laws named after crime victims are almost always bad laws).

      1. ===With the structure of this law, on the other hand, you will get $8,000 from A and $3,000 from each of B-K.===

        $38,000 – 15% finder’s fee, of course.

        I’m too cynical. Good day, folks.

      2. They punish the actual makers of child porn as much as they can.

        They accuse you as publicly as possible to taint the jury pool, deny you bail, put you in situations for jailhouse justice, make it nearly impossible to be acquitted, and take all your assets. All before you are even found guilty.

        If you are found guilty, the state puts you on an unconstitutional sexual offender list, restricts where you can live and work after you are off parole or probation, and lies about the registry being civil not punishment.

        Now they want the lawyers to get more money from other people they can sue for looking at pictures. All the damages dont go to the victim who was abused but 33%+ goes to the trial lawyers.

        1. “restricts where you can live”

          Not all the states do this. Federal law requires that they create and maintain a registry, but that’s all. Some states have tacked on a bunch of other restrictions, thanks to “I’m tougher than the other guy” politicians.

  4. Before reading the post, I’m going to guess that a law named after not one, but three victims, is probably going to be bad. If I’m wrong I’ll admit it as soon as I read the post.

    1. Hmmm…not as bad as I’d assumed, but some cogent criticisms from commenters.

    2. Kirk’s First Law:

      “Any law named after a victim, or whose title spells out a cutesy acronym, is certain to be a bad law.”

      Why is this so? Anything passed so close to the aftermath of a high-profile case is at least likely to be influenced as much by outrage and/or moral panic, and given that law in the best of times is problematic–i.e. we already have *way* too much of it–well, what are the chances?

      1. Oops:

        ” … at least likely to be influenced as much by outrage and/or moral panic as it is by a careful consideration of what the law should be…”

        1. Well, I really don’t have any opinion about the proper formula for restitution for child pornography victims, but yes, naming laws after crime victims is a really cheap and disgusting practice which basically says “we can’t win an argument on the merits, so we are going to engage in cheap demagoguery in the hope of making anyone in principled opposition to our bill look like they are trashing crime victims”.

    3. It was quite bad enough when moral-panic laws were named after one person. Three is even worse, and bodes ill for the future. If there’s another act of terrorism on the scale of the 9-11 attacks, can we expect to see it followed by the passage of the “Aaron, Aaron, Abigail, Abraham, … (several thousand names elided) …, Yousef, Zachary, Zachary, Zoe, Zoe, and Zoe Act”?

  5. “The knowledge the persons around the world are viewing those images has been psychologically very harmful to Amy.”

    Who communicated this knowledge to her? Sounds like THEY should be on the hook for the next round of counseling.

    1. Right, by normal tort law concepts of proximate causation, the people who are communicating the knowledge to the victim are more plausibly the ones at fault than the actual viewers of the offending images as the victim suffers no injury from the viewing itself.

  6. A hypothetical:

    A and B are married 16-year-olds who decide, jointly and voluntarily, to make a digital record preserving certain parts of their honeymoon. Years later, A and B hit upon rocky times, and their marriage unwinds. A and B are legally divorced and the property settlement is finalized. A, examining the items in A’s possession, comes across the recording made back in happier times. A transmits a copy to B, with the attached message “remember this?” B,wanting to place the whole relationship in the rearview mirror, is not pleased to receive this, and reports the transmission to law enforcement, who determines that 1) the video depicts minors engaged in sex acts, and 2) that A has transmitted the recording to B, and the AUSA decides to prosecute A.under 18 USC 2252A(1).

    Is B entitled to recover under AVAA? How about A? Do the genders of A or B make a difference?

    1. B is entitled to recover under the AVAA for any damages that B can prove to the court resulting from A’s actions. Just like every other tort.

      In Amy’s case, there was testimony from mental health experts on the damage caused by the transmission and viewing of the video, and the trial court is entitled to make a factual decision on the harm based on the evidence.

      If you want to argue that, in that particular circumstance, the trial court should not have so found, then sure. That’s a fact-specific inquiry for each case. If you want to argue, on the other hand, that there can never be tortious harm caused by distribution of child pornography, that’s a bit of a larger claim.

      1. “Just like every other tort.”

        What tort?

        ” If you want to argue, on the other hand, that there can never be tortious harm caused by distribution of child pornography, that’s a bit of a larger claim.”

        Hmmm. I wasn’t arguing either fork of your “on the other hand”.

        I offered a hypothetical crafted so that no pre-existing tort law would apply, and, further, in the hypothetical, no one was harmed… until one of them was prosecuted.

        1. If no one was harmed then there is no damage under the AVAA . . .

          1. Interesting theory. I look forward to finding out if it turns out to be true. I have my doubts.

  7. What an excellent new law!

    I can’t wait until it is applied against a 12-yr-Old girl to takes a selfie in her skivvies.

    1. My enterprising 15-year-old neighbor wants to take advantage of this. He plans to shoot a number of X-rated selfies, then spam several thousand people with them. He’ll choose a subject line, etc., such that the e-mail will go straight into most people’s spam-boxes. He’ll then inform the forces of the law that he’s discovered that the following people have joined in traumatizing him, and, when it’s discovered that they’re hiding kiddie-porn in their spam-boxes, demand awards of $3000+ from each.

      1. Better tell him that A) the FBI has forensic examiners good enough to determine the source of the emails, and B) federal law has an “out” that would cover this situation… it involves notifying law enforcement and destroying the images once they are discovered.

    2. The laws criminalizing possession of child pornography have been on the books for decades. And under them, the photograph you mention above is not covered, because it does not involve sexually explicit conduct. The AVAA simply provides for more effective restitution for the victims those long-established crimes.

      1. “And under them, the photograph you mention above is not covered”

        But teens have been prosecuted for child pornography on the basis of nude selfies.

        1. “teens have been prosecuted for child pornography on the basis of nude selfies.”

          Mostly by state authorities rather than federal. They may have different definitions of unlawful material.

      2. ” the photograph you mention above is not covered, because it does not involve sexually explicit conduct.”

        As discussed above, the definition of “sexually explicit conduct” in 18 U.S.C. 2256 is extraordinarily broad. It includes actual and simulated sex, but also “lascivious exhibition”.

  8. Laws of this type rely on the near universal revulsion towards viewers of child porn. Few care if a pervert gets punished.

    The entire concept that unknown viewing creates harm is mind boggling stupid however.

    Its the taking of the porn that creates the harm.

    Notifying victims every time such a pervert is arrested is frankly cruel as well. You can’t put something behind you if well meaning people keep bringing it to your attention.

  9. Also, did anyone else read the headline to this post and think it was going to be about Amos N Andy?

  10. …This minimum ensures that child pornography victims will not receive a token aware from any particular defendant…

    Small typo. “award,” rather than “aware.” (attempted email sent to your school address kept bouncing back to me, so no other place to note this).

    1. Thanks – typo fixed!

  11. Well, Stewart Baker is starting to look better and better. However, reading this, well actually anything by Cassell, on Reason’s web site is making me feel sort of queasy. Maybe someday it will dawn on him that some of the accused might be victims as well.

  12. I still can’t believe they’re tinkering around with this stupid law. Just impose a damn per image monetary fine with the collected amount to be paid into a victims assistance fund. It’s far more straightforward to administer, requires less in the way of judicial resources, and makes far less of a mockery of the concept of liability apportionment.

    1. As if all images were equal? So we charge the same for a sadistic rape of a 6-year-old caught on tape as we do for a 17-year-old spring breaker who flashes her ta-tas for a free t-shirt?

    2. if you’re doing per image, does a video count as 30 images a second?

  13. Do child pornography victims get royalties from law enforcement’s distribution of the works they appeared in?

    1. National Center for Missing and Exploited Children has the largest repository of child pornography in the World but they will have zero liability under this law, I am sure.

  14. Does anyone else see some real ex post facto law problems with applying this to child pornography produced before the law was enacted?

    1. No, since the issue is possession, not production. They can bust you for possessing images produced before the AVAA passed, as long as you possessed them after it passed, and hit you with the new restitution formula.

  15. According to Congress.gov this thing went from a bill introduced in the Senate to a signed law in just over a year, without a single objection or nay vote in either chamber. It might as well have been called the “If You Don’t Support This Bill You’ll Be Called A Pedophile Sympathizer When You Run For Reelection …. Act.”

    Maybe the next immigration reform bill should be called the “Little Sally, Innocent Mindy, Precious Polly, Defenseless Baby Jess, Child Pornography Bad, Victims Good, Pedophile, Liberty, Patriot, Act.” That thing comes anywhere near your desk and you just give it your support on the spot, or else see your name in a “Breaking News” headline as supporting child pornography and hating little precious babies.

    1. Were they roll call votes, or just voice votes?

      Because if the latter, there probably wasn’t even a quorum present when the bill was “voted on”; They use voice “votes” to conceal the absence of a quorum.

  16. I share the skepticism of those above; the intent is noble but this law probably is not the appropriate method.

    Also, does this law apply to federal cases only?

    I’m guessing most cases are handling at the state level, so am not sure how this could apply.

    1. This federal law applies only in federal criminal proceedings.

  17. I’m skeptical; restitution for criminal activity (and/or child porn itself) seems like a classic state law subject. How did they justify this Constitutionally?

    1. “How did they justify this Constitutionally?”

      Regulation of interstate commerce.

      1. In that case, the law should be found unconstitutional. There is no exchange of goods or services (across state lines or otherwise) when you pay restitution.

        1. But the offense involves interstate commerce, and that’s what matters. There’s no interstate exchange of goods or services when you go to prison, either.

          1. In that case, the Feds should be required to prove as an element of the offense (possession of child pornography) that the possessor paid money to receive the images, without the exchange of money, there is no commerce (intra or inter state).

            1. Commerce is trade, not money. So if you trade something for something else, interstate, you’ve engaged in interstate commerce.

        2. “In that case, the law should be found unconstitutional. There is no exchange of goods or services (across state lines or otherwise) when you pay restitution.”

          That hasn’t mattered to the feds (nor the courts) since Wickard v. Filburn

  18. The new law will help ensure victims ultimately receive full restitution from defendants who have harmed them.

    So the victims get all assets from the person who sexually assaults the kid?

    This unconstitutional law creates a liability for people who look at pictures. Its kiddie porn but theyre still pictures.

    That is like creating a liability for those who watch Faces of Death. Some people died in those videos and people like watching others die in weird ways. They should not be liable to the families of those who died.

  19. Is the $3000 amount per criminal? Per victim? Per photo?

    I suspect most child porn enthusiasts have at least hundreds of photos depicting dozens of people, so there’s no way you could reasonably expect them to pay per victim, let alone per photo.

    1. As with other federal restitution laws, this law applies per criminal case. And the judge imposing restitution in any particular criminal case is required to consider a defendant’s ability to pay in setting up an appropriate restitution schedule.

      BTW: The term “enthusiasts” obscures the crimes involved in these images — not to mention the victims.

      1. I wasn’t sure what the right term to use here was. What would you use?

        If it’s $3000 per criminal case, each victim wouldn’t receive much.

        1. “If it’s $3000 per criminal case, each victim wouldn’t receive much.”

          Leaves open the possibility for filing a civil case later, though, so if defendant later obtains wealth, recovery of greater damages is still a possibility.
          Leaving the matter exclusively to civil courts has a couple of problems.
          1) a victim without a sophisticated information technology operation will have trouble detecting and identifying defendants, and a victim without professional representation will have trouble keeping up with the legal claims against various defendants. If the victim is without resources, the effective ability to recover any damages is effectively nil.
          2) Winning a judgment and collecting it are different animals. (Ask the Goldman family). Criminal restitution is likely to be paid, to the best of defendant’s ability to pay.

      2. I thought the use of the term “enthusiast” was about the creepiest thing I’ve seen online at Reason/Volokh Conspiracy. I’m glad Junkie re-posted, to clarlify.

        1. As disturbing as it is to contemplate, there is a market for child porn, and prohibition demonstrably does not eliminate it.

  20. It’s extraordinary. It imposes a mandatory minimum civil penalty in criminal prosecution. I am not aware of anything like this in the history of US law.

    I’m also highly sceptical of the causal assertions of the bill. The three it’s named after have been trying to get monetary awards no0t from their abusers, but from people who found pictures of them online. That is a very tenuous relationship and is also unlike anything elsewhere supported by US law. The amount is extraordinary as well. Since a single download can have many images, we face this reality: A person that finds illegal pornography online now faces many years in prison, sex offender registration, lifetime restrictions, social humiliation and violence (and, statistically, poverty and poor health or early death) and now also potentially hundreds of thousands of dollars in fines that they certainly will never be able to pay. This will not help victims of child abuse. It doesn’t even harm their abusers (who, as a group, face far less severe consequences than those who have seen pictures of their actions). It serves only to further cement a lifetime of suffering of those who have not harmed another person.

    It has been known for some time that penalties that keep people from rebuilding their lives leads to desperate individuals and, therefore, increased crime. It seems there can be little doubt that this bill is in opposition to both justice and the public interest.

  21. Here’s a thought. Does the new right to restitution granted by the AVAA create a transferable right? Can a victim transfer their right to receive future restitution in exchange for present consideration?

  22. That the government itself is the principle perpetrator of this abuse renders this whole thing a farce.
    If a victim is retraumatized upon learning someone else has viewed their images, well how’d they find out most of the time? It’s my understanding that the government notifies all identified victims each time their images are discovered in a case. Is this understanding not accurate? If it is accurate, how can you possibly claim the government itself is not even more responsible?
    Even worse, the government itself, and computers operated by the government, are the principal distributors of child abuse material. I’m sure we recall the incident where they ran Playpen for 11 days, not sure why it’s not a bigger deal that they also ran other, larger, sites, for upwards of 11 months?

    Both of these things, regardless of lies about it being necessary (in reality they’re compromising access to producers to shoot fish in a barrel with basement dwelling pervs), make the government far more culpable for harm than anyone charged only with possession. Their own actions discredit their claims about the degree of harm distribution and possession cause.

Please to post comments

Comments are closed.