Pay Misty for Me: Courts Mull Over Restitution Payments to Victims of Child Pornography From Possessors

In a disgusting pornographic collection called “the Misty series,” a little girl named Amy was photographed by her uncle who then distributed the pictures worldwide on the Internet. As discussed earlier, now an adult, Amy has succeeded to securing restitution not from her uncle but from a man who was found in possession of the pictures. As reported by John Schwartz in the New York Times article below, it has raised serious questions from lawyers and law professors (including myself) but the Obama Administration is now supporting such claims.

Amy is demanding that anyone convicted of possessing a single Misty image pay her restitution until her total claim of $3.4 million has been met. It has a striking resemblance to “market share liability” where companies are liable for their share of a market regardless if they actually produced the harmful drug in a given case. Here all possessors would be treated as causing the injury by creating the market.

More directly, it is supported in court as a variation “joint and several liability theories” in tort — holding all users of pornography as engaged in a common enterprise.

While I view Amy’s victimization to be horrific (and these defendants to be entirely unsympathetic characters), I have considerable constitutional and policy concerns over this effort. It is based on a theory of restitution that would defy limitation and could be used in a host of different contexts to extend the definition of a victim.

The effort to expand the definition of victim and the scope of restitution is attributed to Paul G. Cassell, a former Reagan Justice official (and federal judge) and law professor at University of Utah.
Joint and several liability theories do not support such claims. In torts, such liability usually requires that the concurrent acts of the defendant brought about the harm to the plaintiff. Here, the uncle caused the harm. This may also be extended to anyone who helped him distribute the pictures on the Internet. However, once on the Internet, the viability of the claim breaks down.

Notably, last summer, an attorney with the Administrative Office of the Courts argued that the law did not support restitution for “mere possession.” However, Lanny A. Breuer, the assistant attorney general for the criminal division at the Obama Justice Department, issued a letter in October supporting the theory and stating “we do not agree that restitution is not available to victims of the possession of child pornography as a matter of law.”

While politically popular, the position of the Administration threatens any logical and reasonable limitations in criminal cases. It is part of a trend to extend limitations on sex offenders (such as limitations on housing) that are causing disruptive and dysfunctional impacts on the system. You could adopt the same open-ended definition of restitution in areas ranging from grand theft auto to environmental crimes. In the past, we have tried to limit restitution to direct victims of the accused. This trend adds a new level of restitution as an additional punitive measure for the accused.

Politicians love to garner the support from such draconian measures but rarely consider the costs or the logistics involved in such changes. Restitution is a proper and needed protection for victims of child pornography. However, this effort strikes me as more visceral than legal.

For the full story, click here.

7 thoughts on “Pay Misty for Me: Courts Mull Over Restitution Payments to Victims of Child Pornography From Possessors”

  1. To just say in my opinion first,”Cut It Off”,”Lock Them In Small Areas Of Minimal Light.” Second, Go Obama, death penalty for child rape.

    Now that i’ve got that out…Amy isn’t the predator here. Yes she should be paid for every misty series found on every pedophile whos watching it and using it because if they’re not using it when they get caught doesn’t mean a child out there it’s a victim of his sick arousal. and yes they are repeatedly abusing her everytime they get pleasure out of her abuse. why because everytime the sick bastards are caught with her 4 year old child rape series she gets notified. that is ongoing abuse because when everybody else wants to forget they don’t have the government sending you a notice especially 800 in the last year.
    Until the victims of the child rape activity come forward and declare justice give misty her financial stability because publicly her life is ruined and that shoots a job right in the Goat!!!

  2. would a person who had the pictures for 2 years owe twice as much restitution as a person who had them for one year?

  3. Actress’s name is Page, not Paige, FYI.

    This is a squirrelly situation, agreed.

    Although I sympathize with this woman, and think child porn and the people who traffic in it are horrible, this situation doesn’t hold water, I believe.

    Let’s say Amy discovers a new person in possession of the photo in question. When was the harm to her done? When the person possessing the photo came into possesion of it? Or when Amy discovered this person possessed the photo?

    In other words, is knowledge of something legally considered “harm”?

    What if Amy were to discover another person possessed the photo – would she then be harmed further? And what if it turned out that discovery was a mistake, and that second person did not possess a copy of the photo? Would the harm suffered from that particular discovery go *poof*?

    I think the question is, how does one apply legal standards to something as nebulous and irrational (not ‘irrational’ as in ‘crazy’ but as in ‘resistant to measure’) as “feelings”?

  4. AY

    Check out a movie called “Hard Candy” with Ellen Paige. Don’t watch it during dinner.

  5. I don’t want anyone to think I condone this activity in any means. These people are in need of help, unfortunately something that the US cannot or will not offer to them.

  6. Man this is a hard one. No pun intended. How can, or what is say the nexus between say a person in Poland and this victim? Had they ever met? It is like a person saying I am going to shoot you and they don’t have the capabilities. Such as no gun.

    Say for instance that the child resides in Maine and the possessor in Australia. The possessor a convicted ped can’t get a US passport. So he actual or perceived threat of harm is only in her mind and about something her Uncle did to her. I am not saying that it is unreal. I am saying what is the probability of actual or future harm?

    The ordering of money payments although a good idea has far to many consequence that might be unintended.

    Now down to the real question. Why were these bastards, the perps allowed to live to start with? They must die a slow long and humiliating death. I say send em to Gitmo. Screw the 4th, 6th and 8th Amendment. I don’t care if a game is invented called testicle tying is played. Maybe they should be hung. Did I say hung? Ok, strung by the hung one….

  7. Sounds like she needs to join SAG or ASCAB. Does she think kiddie porn pays royalties?

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