James Marsh, the woman’s attorney, insisted that “The victim is a victim of sexual exploitation caused by this defendant.” However, there is no evidence of any contact or solicitation by the defendant.
In handing down the fine, Eginton admitted, “We’re dealing with a frontier here.” The ruling, however, is highly questionable. First, it would likely lead to a torrent of such demands for criminal restitution — depleting such funds. Second, it stretches personal accountability to a breaking point. There is no question that people who buy or trade such child pornography are contributors or facilitators of these terrible crimes. However, the extension of the definition of victim could lead to liability without limitation. Presumably, anyone watching porn movies with an underaged character or in possession of a magazine with such a picture could be similarly faced with restitution demands. Prosecutors could threaten targets with financial ruin under such theories — forcing guilty pleas to other offenses. Restitution is generally limited to the direct victims of the defendants actions.
The concern is that there are a host of crimes that may involve the collateral crimes of others. Thus, receipt of stolen goods requires return of the property and a criminal penalty. However, a person guilty of possession is not normally required to pay restitution for a burglary if he did not play a role in the original crime. Thus, a pawn shop owner is responsible for the crime of possession of a stolen object but not restitution for the broken window or physical assault related to the break in.
Yet, courts have traditionally limited restitution to the victims of the direct crime. Those who abused this child and photographed it would fit into such a category of offenders owing restitution. Likewise, if this defendant conspired or solicited the specific abuse or photography, he would be legitimately held for restitution. This should make for a very interesting appeal.