Victims of child porn should be able to sue the people that are caught with it

So says Sherry Colb in this column for Findlaw:

She goes on to say that Amy’s efforts have met with very inconsistent results; some courts have awarded her high damages, some nominal damages, and some have sent her away.

I’m torn myself. Professor Colb lays her own case out at the linked column, and when i read it, I think to myself that she makes some good points. And really, who could be a more unsympathetic civil defendant than a convicted child porn possessor?

But if her image is downloaded over the course of ten years by, say, a thousand people per year, and we imagine that each defendant is liable for ten thousand dollars in damages, we’re talking about a hundred million dollars. Amy could retire. I don’t mean in the least to make light of her predicament, which is ugly beyond belief. But I’m not sure my mental equity scales balance at a hundred million.

But maybe that’s the wrong way to look at it. Maybe I should think about the deterrent to each of those thousand people each years, and be happy for Amy’s awful experience yielding some benefit. Perhaps, if given the choice, Amy would forgo the hundred million if it meant she could have had a normal childhood.

I’m torn. So I turn to the Dope to help clarigy my thinking.

But why should the total amount matter at all?

I think the first question is whether the victim is justified, in principle, in seeking restitution from those who watch child porn. If the answer is yes, the next question is how much should s/he be recompensed in each case. But if the courts make it $10K per viewing or $10K per individual suit, and there just happen to be 1000 perpetrators, the fact that victim ends up getting a total of $100M is completely irrelevant.

I have no idea what the appropriate amount of compensation would be, or how to calculate it. However, I do agree with the basic idea that consumers of CP ought to be held liable. They are active participants in a system that encourages and creates such occurrences; and they derive benefits from it, even if those benefits cannot be expressed in dollar amounts.

This would clog up the court system incredibly. Justifiable cases, many more unjustifiable cases, counter suits etc.

Financial penalties for using child porn are fair and just. If clogging up the legal system is at issue, make them mandatory as part of sentencing.

The problem with that, IMHO, is that if you were to set some sort of cap, once that cap is reached, THAT would be the porn to watch, basically, it would be public domain with no ‘royalties’ to be paid.

Or increase the number of courts and staff, if it’s really such a problem.

Um, it would still be a crime…

I think there are two separate questions. First, should the victim be entitled to restitution from the consumers of child pornography. I can answer that as an uncategorical yes. Second, is what the amount of damages should be. That’s a much tougher question, and one that I think should be left to the individual courts consideration based on the facts of each individual case.

I also think considering only the total amount of money that Amy could possibly get in is putting the focus not on actions of the offenders where it should be, but on the result to the victim. And I find the idea that Amy could actually recoup $100 million to be laugably unrealistic.

I didn’t say it wouldn’t be a crime, I said that you wouldn’t have to worry about paying the victim. If you going to posses child porn, THAT’s the porn you’d want to posses.

Oh, I see. Well, I think for most people the threat of jail time from the criminal part of the justice system is more significant than the threat of monetary loss from a civil suit.

Professor Colb is wrong. Liability for criminal restitution should end with the guy that abused Amy. The victim isn’t any more abused when some guy 20 years removed from the incident finds pictures on the internet. Any harm derived from distribution of the images should be figured in to the sentence imposed on the original abuser. I have no problem with giving him the death penalty, but SCOTUS and some liberals disagree.

Also don’t think the royalties theory works. Not sure child porn can be copyrighted, but if it were, the copyright would likely belong to the photographer, not the model.

Finally==note that Colb is talking about Criminal Restitution, not a civil suit for money damages. Essentially, Amy claims to be a victim of every criminal who downloads “her” images. I don’t believe she is.

I think she should be able to successfully sue people who possess her images, but that the liability should be much lower for “end users” and much higher for distributors. If a person downloaded the pictures but did not upload them, I think 10,000 dollars might be too high. If a person uploaded the photographs a hundred times, I think 10,000 dollars is probably too low.

Who else would be the victim, then? Are you suggesting viewing child porn is a victimless crime?

The unfortunate fact is that this video will probably exist in cyberspace forever. She’s going to have to live with that. I don’t think any particular individual downloading that video is causing her any real additional harm. The real harm happened over ten years ago when the video was made.

Essentially, yes. Similar to drug possession offenses. The crime is complete upon possession of the forbidden thing.

  1. Parents set up child to be photographed by pedo B.

  2. B goes to prison for peddling child porn.

  3. Parents sue everyone who receives photos of their child.

  4. Profit.

  5. Sociopathic 14 year old seduces man, gets pictures taken.

  6. 14 year old spreads her own photos around. Blames man as having taken and spread them. He goes to jail.

  7. She reaches maturity, sues everyone who has received her photos.

  8. Profit.

Yes. In and of itself, viewing child pornography does not harm the victim.

Now being caught with child pornography, and informing the victim may cause her psychological distress. But that was caused entirely by telling her about it, and not by the act of viewing.

Viewing child pornography may not directly harm the victim, but purchasing it does harm the victim indirectly by providing a market demand and creating an incentive (beyond the sick pleasure of the original abuser) for it’s production.

Here’s a question; does it make any difference re restitution to the original victim if the end user actualy pays for the child porn verse finding it for free on the internet?

With each viewing of the tape, her right to privacy is being invaded again. The watcher is receiving a benefit from the abuse she suffered, and is contributing to the market for the child pornography in the first place. There is certainly a harm, as well as a need for restitution.

It supports the market for child pornography. The article in the OP discusses that, in fact it is one of the foremost reasons why child pornography is illegal and unprotected in the first place.