Helen Pringle
Civil Justice for Victims of Child Pornography
Child sexual abuse materials are trafficked through exchange or sale at an increasing rate, with the Internet making access much easier, faster and more private. The United Nations Convention on the Rights of the Child places a comprehensive legal duty on states to protect children from sexual abuse and exploitation. In most countries, those who produce and traffic images, videos and other child abuse materials face prison sentences if they are caught and successfully prosecuted, just as do those who sexually assault children. The Optional Protocol to the Convention on the Sale of Children, Child Prostitution and Child Pornography requires states to bring under their criminal or penal law the “[p]roducing, distributing, disseminating, importing, exporting, offering, selling or possessing” of child pornography. Of 196 nations, however, 122 do not criminalise the knowing
possession
of child pornography (ICMEC, 2010).
It is sometimes claimed that the chief harm of child pornography lies in its production, and that by the time the images are downloaded, the harm has already been done – the conclusion being that ‘mere possession’ is like a ‘victimless crime’ and should not be penalised heavily. This claim and this conclusion fly in the face of how child pornography works.
Once in circulation on the Internet, child abuse materials constitute a continuing victimisation of children which goes beyond the wrong, damage, and injury done in their original production. Not all child abuse materials involve the sexual assault of children in their production,
1
but where they do, these children are victimised again
every time
their image is viewed or downloaded. These children, as well as adults who were abused in their childhood for the purpose of producing pornography, can also be subject to further victimisation when people
recognise them on the street, or even try to contact them to do further harm (see examples in
McDaniel
, 28 January, 2011, and
Falso
, 6 February, 2009).
2
Where pornography is so ubiquitous, and its effects are so far-reaching, it is easy to fall for the idea that not much can be done in these cases. In such circumstances, despair can easily take over, and hope can easily be lost. But there are some hopeful signs that promise redress for victims of child pornography.
One of these is the development of innovative approaches to civil justice now being widely used in the United States. These approaches involve recovering damages and making restitution for the children (or the adults they have become) from those who participated in, or recorded, the original abuse, and from the ‘end-users’ of pornography. By ‘end-users’, I mean those who view, download, circulate or possess those images, even long after they were first made.
An important step here was the passing by the United States Congress of a provision known as Masha’s Law. Masha’s Law forms part of the Adam Walsh Child Protection and Safety Act, which became law with bipartisan support in July, 2006 (now 18 USC § 2255). This law increased the minimum
mandatory
penalty for downloading (including viewing) child pornography to US$150,000, up from US$50,000 (which was at that time one-third of the penalty for unlawfully downloading songs). Masha’s Law also allows people over 18 to continue to sue those who download or possess images of them made when they were children.
The law was named after Masha Allen who was adopted from a Russian orphanage in 1998 at the age of 5 by Matthew Mancuso, a wealthy engineer. Masha’s account of what happened over the following 5 years was given as testimony in committee hearings at the US Congress in 2006 (Allen, 2006a; see also US Congress, 2006). Mancuso sexually assaulted Masha from the first day she arrived at his home, and straight away began posting her images to the Internet. He had also previously abused his two older daughters. Mancuso was found guilty of the sexual abuse of Masha, and gaoled. However, Masha’s images are still being trafficked on the Internet, and in a Victim Impact Statement, Masha said that the circulation of her pictures is actually even more disturbing to her than Mancuso’s actions:
The absolute worst thing about everything that happened to me was that Matthew put my pictures on the internet. He traded them with other people like baseball cards. What kind of people want to see pictures of a little girl being sexually abused? I was told that my pictures
are the most popular on the internet. How can so many people enjoy the horrible things that happened to me? Now every day and everywhere I go I have to worry about who has seen the awful things that happened to me. And what do they think about me now? Do they want to hurt me? Or rape me? Or do they think I am bad, dirty, and ugly. I know that these pictures will never end and that the abuse from them will go on forever …
I want every single person who downloads my picture to go to jail and really be punished as much as possible. They are as bad as Matthew. They want to see me suffer. They want to see me starved and hurt and sad and abused. Child pornography is not a victimless crime. I am a victim and I still suffer every day and every time someone sees me being abused (Allen, 2006b).
Because of the long period during which Masha was assaulted by Mancuso, police found it wrenching to watch her growing up as a victim of sexual assault, as she aged in the pictures that they traced. The Internet circulation of the pictures prolongs her abuse to infinity, as each person who downloads her pictures participates in her abuse. For a time,
Amazon.com
sold a book by a convicted child pornography user, Peter Sotos, called
Show Adult
, which was advertised as featuring “the child porn star Masha Allen” (Marsh, 2007).
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Those who download child pornography often know exactly what harm they are doing. For example, a young US college student arraigned on child pornography charges who saw Masha on TV and realized that he had seen her pictures online, said, “It made me feel like an evil monster – as if I had helped in hurting her” (Koch, 2006). The young man was right; he had helped to hurt her.
The possibility of gaining justice for those hurt by child pornography has been explored in the United States in other ways as well. A section of the US Code enacted in 1994 provides for Mandatory Restitution in cases involving certain crimes, including child pornography and sexual exploitation (18 USC § 2259). Under this statute, US federal courts have a duty to order defendants to pay “the full amount of the victim’s losses” following successful criminal prosecutions, including those for possession of child pornography.
The case of Amy (a pseudonym) involved a little girl sexually assaulted by her uncle who then uploaded images of the abuse. Amy tells her story in the next chapter of this book. The man was arrested and convicted, but the images (known as the ‘Misty Series’) continue to circulate on the Internet. The ‘Misty Series’ of images was viewed by at least 8,800 Internet users in 2009 alone; unfortunately, this figure is likely to be only a fraction of the total number of viewers. Amy first became aware of the circulation of her images when she received victim notifications from the US government, as mandated by the Crime Victims Rights Act. Amy’s lawyer, James Marsh, is asking that
each
person found
guilty of possessing even a single image of Amy’s abuse pay restitution until her total claim of over US$3.4 million is paid. This amount includes her losses, costs for future psychological care, future lost income, and attorney’s fees (see Schwartz, 2010).
James Marsh contends that each person found guilty of Amy’s violation through pornography should be ordered to pay the full amount of restitution, under the legal doctrine of ‘joint and several liability’.
4
This approach entails that a victim would stop collecting restitution once the full amount of damages claimed is paid; those held responsible for the acts could then sue others who are found culpable so as to recoup any over-payments of their proportionate contribution. Amy’s court filings have been emailed to US Attorneys in over 500 child pornography cases, many of whom have filed restitution claims for Amy.
For example, in February 2009, in the state of Connecticut, the US District Court Judge Warren W. Eginton indicated that Alan Hesketh should pay a total of US$200,000 to Amy. Hesketh was a British citizen and a vice-president and global patent director of the pharmaceutical firm Pfizer (
Hesketh
, 2009). Hesketh was held responsible even though he had played no direct part in the
originating
production or initial uploading of Amy’s images; he had traded the images while posing online as a 28-year-old woman named ‘Suzybibaby’. Amy received US$130,000 in a settlement reached with Hesketh (see also Rothman, 2011, pp. 349–350), the first time the
possession
of child pornography images involved payment of restitution to the victim.
Later in 2009, in 2 separate Florida cases (
Freeman
, 2009, and
Staples
, 2009), men convicted on child pornography charges were ordered to pay almost US$3.3 million and US$3.7 million respectively to Amy (also see Rothman 2011, p. 335). The former case involved an international network of child pornography which was uncovered in part through the efforts of Australian police (Department of Justice, 2009). By mid-2010, Amy had received about US$236,100 from 10 defendants (Edwards, 2010).
Amy’s claims have met some setbacks however. For example, in a Texas court in 2009, a Request for Restitution of around US$3.4 million was made from a man called Doyle Paroline who had pleaded guilty to child pornography charges. The Request was denied with the judge finding that the argument had not been successfully made for the ‘proximate causation’ of injury resulting from possession of Amy’s images by Paroline, as distinct from other viewers of her pictures (
Paroline
, 2009, and
In re Amy
, 2009; see also Rothman 2011, p. 335,
pp. 351–353). In March 2011, however, that decision was overturned by the Texas Court of Appeals, and the case was sent back for Amy’s damages to be determined on the basis that Paroline could be held financially responsible for injury to Amy (
In re Amy Unknown
, 2011).
Through the efforts of Amy and her lawyers, a valuable body of case law and argumentation has been built up. Even temporary setbacks like the 2009
Paroline
decision have in turn provided opportunities to clarify different aspects of the law on restitution. In that sense, the courage and perseverance of Amy and her defenders provide a basis on which other countries might work out and implement similar approaches to civil justice for victims of child pornography.
Another group of attorneys in the United States has begun to open up further opportunities for claiming civil damages for the victims of child pornography. For example, in 2010 the firm of Jeff Anderson & Associates filed suit in a Minnesota District Court on behalf of a man who was 9 years old when images of his sexual abuse were originally produced. The defendants in the case include Gregg Alan Larsen, a schoolteacher and foster care provider, and 100 unnamed ‘downloaders’ who received and/or viewed the boy’s images (Forliti, 2010). Larsen was sentenced in November, 2010, for producing and possessing child pornography. Four civil claims have been filed against Larsen on behalf of children who were in his care.
5
The approaches in search of justice for child pornography victims mentioned in this chapter differ in important ways. But the striking common feature of all these approaches is that the viewers and possessors, and not merely the original producers, of abuse materials can be held accountable in financial as well as penal terms for the damage that their actions do. Importantly also, such claims for damages and restitution shift the financial burden of the crimes onto convicted criminals, and away from the victims of crime and away from the public more broadly. In that sense, what can be seen here is the emergence of a ‘civil rights’ approach to child pornography, capable of being used in other countries to address the global trade in abuse.
I conclude by noting that such an approach, whatever its variations in form, is not without controversy. Some academic writers like Amy Adler have criticised the approach, asserting that a problem with cases involving claimants like Amy is that those convicted of possession of images seem to be penalised as much or even more than those who physically assault the child and originally produce
the images. Adler notes, for example, “Not to excuse what the downloaders do and their complicity, but the actual abuser, the person who took the picture is worse. He actually harmed the child” (quoted in James, 2010; see more broadly Adler, 2001).
Adler draws attention to what she sees as a loss of perspective in such cases, with the possibility of people being prosecuted for possessing pictures of a child in a bathtub. James Marsh replies:
There’s a real disconnect on what the true nature of child porn is … 99.9999 percent of the material I deal with features pre-pubescent children being raped … the most graphic hardcore images you can imagine. People think downloading a picture of a baby in a bathtub is going to send them to prison. That’s not what we’re talking about (quoted in James, 2010).
Marsh noted that “[i]n one notorious set of images, the father used to put a studded collar around his 6-year-old and wrote on her in what looked like blood, ‘I am Daddy’s little girl, rape me.’ He locked her in a dog cage” (quoted in James, 2010).
In a child pornography case involving a student at my own university in Sydney, the materials at issue included “videos of a baby bound and sexually assaulted, a two year old girl subjected to anal intercourse, numerous images of young girls apparently heavily sedated being sexually assaulted and a girl under ten bound and subjected to an act of anal intercourse while crying with the pain” (
Puhakka
, 2009). On appeal, the student’s gaol term was reduced, in part because of his young age.