Lawyers representing child pornography victims recently gained attention by seeking restitution from individuals convicted of viewing or downloading exploitative photos of the victims. The defendants in these cases did not participate in the creation of the original abusive images. “Although restitution seems like an appealing remedy for these victims, its imposition is problematic,” says Cortney Lollar, JD, law clinical faculty at Washington University in St. Louis.
Restitution in child pornography cases represents a dramatic departure from traditional concepts of restitution. Restitution is intended to force a defendant to surrender an unjust gain.
“The restitution being ordered in increasing numbers of child pornography cases does not serve this purpose,” Lollar says. “Instead, child pornography victims are receiving payments for having their images viewed.”
Lollar says that courts imposing restitution in these cases struggle to determine how much money a particular defendant owes for viewing child pornography. Determining what “unjust gain” any individual defendant has obtained from viewing a particular image is almost impossible. As a result, “most courts order defendants to pay a nominal amount to the victim, uncorrelated to a specific gain,” she says.
“In so doing, courts inadvertently endorse a ‘pay-per-view’ type system that further commodifies victims by requiring defendants to pay a fee for having viewed the images. Additionally, the legislature forces victims to revisit their abuse by sending notices every time a victim's image is located, even if some would prefer to opt out.”
Change is necessary
Lollar says that a better alternative to the current restitution system is the creation of a child pornography crime victims' compensation fund, an idea currently under discussion by the U.S. Department of Justice.
“Defendants would be ordered to pay a set fee into the fund; then, upon showing receipts, victims would be reimbursed for treatment received as a result of the offense,” she says.
“Using a fund rather than restitution would allow money to go toward treatment for all victims, rather than just the few who have sought legal counsel.”
Lollar notes that law enforcement and prosecution resources are focused far more on the people who are viewing and trading child pornography than individuals who are actually committing and recording the child sexual abuse.
“Restitution is rarely imposed in child sexual abuse cases, and the punishments received by those viewing and trading child pornography are greater than those received by individuals who are abusing children,” she says.
“The profiles and characteristics of the individuals who view child pornography are quite different from the characteristics of individuals who sexually abuse children. Child sexual abusers are typically people already known to the child, most often their family members or trusted adults known to the child. By way of contrast, most child pornography victims have never met the individuals who are viewing their images on a computer screen.
“Criminal justice resources should be focused more on identifying and ceasing child sexual abuse, without which there would be no child pornography,” she concludes.
Lollar further discusses this issue in “Child Pornography and the Restitution Revolution,” an article in the forthcoming issue of the Journal of Criminal Law and Criminology. Full article available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2123527.