Federal Appeals Court Ruling Loosens Standard of Proof for Child Porn Compensation

March 28, 2011 by David S. Seltzer

I’ve written here several times before about the issue of financial restitution for children and young adults who were depicted in widely shared child pornography. In the past several years, numerous requests for financial restitution have come from these victims, who say they are victimized with each new download and should be fairly compensated. As a child pornography criminal defense attorney, I’ve written here before that I believe these claims are legally weak — but several appeals courts have allowed them, as long as the victim can show the harm caused by the defendant’s actions. The Fifth U.S. Circuit Court of Appeals raised an even more controversial issue last week when it ruled that victims do not need to show how the defendant’s actions harmed them in order to claim the restitution. This worsens a legal split that the article said will likely be resolved only with a ruling from the U.S. Supreme Court.

The Fifth Circuit’s case comes out of Texas, where Doyle Paroline served two years in prison for downloading child pornography. The images authorities found in his possession included two images of “Amy,” a pseudonym for a woman in her twenties who, when she was a child under 10, was the unwilling star of very widely shared child pornography pictures. “Amy” has also been at the forefront of the movement to compensate victims, filing hundreds of claims around the country. She requested $3.4 million in compensation from Paroline, for costs like therapy and loss of income. But a Texas federal judge denied it, saying she didn’t show that Paroline’s possession of the images was the proximate cause of her injuries. The Fifth Circuit reversed that ruling, and in doing so, also reversed a previous ruling from a different Fifth Circuit panel in a different case involving “Amy.” No clear consensus has emerged in federal courts on what compensation is appropriate, the article said, with some awarding no compensation or small amounts that are largely symbolic.

As a child porn criminal defense lawyer, I am sure this issue will eventually reach the U.S. Supreme Court. Child pornography is a highly emotional issue, which means that sometimes, juries and judges overreach what the law allows in their eagerness to penalize the perpetrators. However, federal law on restitution for victims was not intended for this use, and that means it wasn’t written with the looser standards the Fifth Circuit seems to have applied. Restitution laws are intended to keep criminals from profiting from their crimes. In the case of someone like Paroline, who is accused of viewing or downloading the material rather than making it, there’s no financial profit to take away. It’s also debatable whether the harm to “Amy” was direct enough to qualify, since she didn’t need to be present or even aware of Paroline for him to access the images. As a child porn criminal defense attorney, I think courts exist to exercise this kind of careful judgment, to avoid misuse of restitution laws — and ensure that justice is served, even for people society doesn’t like.

If you’re accused of a child pornography crime, you could face years in prison as well as financial requests from victims and social and employment consequences. With this much at stake, you should call the experienced cyber crime lawyers at Seltzer Law, P.A. to set up a free consultation. You can send us an email or call toll-free at 1-888-THE-DEFENSE (1-888-843-3333).