Congress, Constitutional Law, Courts, Criminal law, Justice, Lawyering, Politics

Turley Testifies Before House Committee On Restitution For Child Pornography

unnamed-1This morning I will be testifying in the House of Representatives before the Subcommittee on Crime, Terrorism, and Homeland Security of the Committee on the Judiciary. The hearing is entitled “Child Exploitation Restitution Following the Paroline Decision” and addresses a long-standing controversy over the limits on restitution in such cases. My testimony is below.

I previously criticized the restitution approach that led to the decision in Paroline v. United States, 134 S. Ct. 1710, 188 L. Ed. 2d 714 (2014). See, also, John Schwartz, Child Pornography, and an Issue of Restitution, New York Times, Feb. 2, 2010; Karen Duffin, New Frontiers In The Child Porn Law, National Public Radio, Jan. 24, 2014.

This is a very difficult subject both legally and emotionally to address in any forum. However, the Court ruling allows Congress to correct what was an ill-conceived approach on restitution in my view. My views are laid out below.

The hearing starts at 10:00 am in the Rayburn House Office Building.

The witness list for today’s hearing is:

Ms. Jill E. Steinberg
National Coordinator for Child Exploitation Prevention and Interdiction
U.S. Department of Justice

The Honorable Paul G. Cassell
Professor of Criminal Law
University of Utah College of Law

Mr. Jonathan Turley
Shapiro Professor of Public Interest Law
George Washington University Law School

Mr. Grier Weeks
Executive Director
National Association to Protect Children

Here is my testimony:
Testimony.Turley.Restitution.Final

32 thoughts on “Turley Testifies Before House Committee On Restitution For Child Pornography”

  1. Hugh is an example of what is wrong with this country.

    If there are people already willing to break the law and make child pornography, or buy it, view it, etc, then why would banning all pornography lead to a solution? It wouldn’t. They would still make child pornography. You’d just create more criminals who want or participate in regular pornography.

  2. I favor the proactive approach ……. since everyone will do bad things at some time in their lives …… punish them now …… incarceration … physiological hounding …. bad food …. throw acid in their face ….. hang them by their toes ….. I am sure there are plenty of people ready to sign up to do the job ….. I am totally sure …… and if you are never going to do anything wrong …. what a conceited biatch you are ….. you should get the treatment anyway. ( my partner chimes in ==> ” just in case” )

    Remember ….sex is bad bad bad …… tasty food is bad …. dancing is bad …. getting more than .02 standard deviations of the center of the bell curve is bad bad bad …. ranting is bad buuuu ………. oh wait …ranting is okay

    And remember ….. children are property …… look it up

  4. What a load of crap. Keep your children away from teachers. Many more children are abused by teachers than have ever been abused by priests in the entire history of the Church. Every day you see another teacher…often females molesting students. That is who you really have to worry about.

    Stop with the Catholic bashing.

  5. Advice to parents out there: Keep your kids away from Pedophile Priests. So how do you know which one’s are PP? Well, when the Catholic Church polices itself and the criminal justice system finds them and kills them, you can trust the church. Until then keep your kids out of church. Show them church service on video. Never, Never! let you kid be an alter boy. An alter boy is a priest’s toy.
    Death penalty for pedophiles. That is number one.
    Don’t buy a used computer. It might have porn files on it containing children. You are then a possessor. You not only go to Hell when your time comes, but under the Turley Doctrine you are guilty as sin–even if you don’t know that the computer contains child porn.
    Court clerks who have the court exhibits from porn criminal cases of porn videos or photos of kids: are in possession and under the Turley Doctrine need to be locked up.

  6. It would be good to see both a victim’s fund and a way of suing these creeps who prey on children, by their crime of buying or viewing child porn. If there were no pedophiles who buy or view these pictures, there would be far less people to sue, or arrest and fined. Also I agree with Isaac’s example of making the fine fit the perps financial status. A very very rich pedophile might be able to absorb a fine set by some panel who decides what the fines and compensation should be and would continue to view child sexual abuse, as he wasn’t really hurt by the fines.

  7. A new law was just established that included drawings as being forms of child porn. This also includes people who are over 18, but look to be under 18 to be child porn. Thus their birth records can no longer be used to establish a persons age. The new law includes just nudes and no explicit sexual act need to be present. Then there is the clad provision of the law. Can what a person wears be considered pornographic. Lets say you at the swimming pool and your swimming attire gets wet and becomes sheer. Then you can be arrested for exposure of breast or genitals. A woman wore a gown to the store and the store called the cops stating that she was advertising sexual acts. The gown was a prom dress and the caller was 86 years old and believes a woman should have the shoulder covered up. A Muslim man slapped a non Muslim because she was uncovered in his presents. Thus committing a sexual act towards him.
    So how will each religion address these new laws. Some religions require the marriage party to be nude, including their children. The call it “rebirth.”

  8. Something that everyone forgets. Each state redefines the terms and includes pictures taken by proud parents that think it is cute. But then they blog it to the world and it turns into child porn. One family in New York sold Albums of their kids growing up and they made sure each picture shown their genitals clearly. The parents thus are now producing a product, that is define as production of porn in state like Alabama. The nudists groups take innocent pictures and then post them to the internet. Then some one repost them for profit and thus becomes a business of porn according to certain laws.
    Then there is the fact that it is the world wide web and each country defines the minimum age a person gives consent to be sexually active. Some as young as 10 years for nudity modeling.
    In fact the United States use to allow and even produce magazines legally.
    So how can a new law affect an old established consent law.
    Restitution would never make it to the victims either. The middle man will always get it and that is the corrupted courts.
    Unless a law can be established that the true victim receives the money then a challenge of identity beyond a shadow of doubt exist.
    Next there is the fact that if a parent took the picture and was never charged as a producer then by law it can not be considered child porn.
    Over 10,000 blogs exist and sites like FLICKR spread them freely to all the public. They are and can never be private as long as they are placed on the internet. The policies of each country are not govern by the will of the United State of America. Even Interpol has trouble with age of consent because each country. Then there is also parental / guardianship consent by action or doing something that they believe is their right as such.
    Naked Children not in sexual acts but mere nudity will always exist and exist in art as well,thus, not all nudity is porn.
    But look at the prison cases and the subject of the pictures,
    By law and definition. How many are really explicit sexual acts?

  9. Some things never cease to amaze me.

    I know!!! Me too. Baby octopi…. so cute and so alien. Homing pigeons. How do the daffodils know when to bloom?

    You might want to be more specific.

  10. Great discussion. In JT’s testimony he mentions the emotion and passion on this subject. That applies to me so I put my trust in righteous people, like JT, to make the law equitable, something every law should be. My wife was a Federal Probation Officer. Her sole job was doing presentence investigations. She has seen the evolution, as it were, of child porn from the magazines found by Postal Inspectors to the encrypted digital of today. As part of here investigation, my wife had to view the images, video. It took its toll on her. I could tell when she got home that it was a tough day. She was collateral damage. So, I have a difficult time being objective and restrained on this topic. I’m pleased to see a serious discussion, to date.

  11. @ Jill

    The issue is not does the possessor need to be fined or punished for possession, but how much and in what way. Restitution by the people who produced and distributed the material is an easy (or easier) thing to prove in Court.

    However, in the Internet world, there are millions of people around the entire world who are in possession of such materials. To demand restitution from one or a few people who get caught for the entire amount of damages is not constitutional, according to how I read JT’s testimony.

    In addition to go the restitution route for possessors it would create chaotic cases that go through the courts and appeals processes.

    No one says that the possessors of child pornography are not culpable in some way and that they should be let off. The issue is that demanding restitution will not be effective nor will it be even legal. However, to set up a system of fines and even jail time for the possessors would be.

    The fines would go into a fund to compensate ALL child pornography victims and not just those who have the luck to have supporters or who can afford legal backing to go to the lengthy court process and who may even end up back at the SC.

  12. I disagree with you on this JT. You write:

    “Hesketh previously was sentenced to 78 months for possession of roughly 2000 pictures of child pornography. He will now have to pay $200,000 to a woman who was in some of those pictures being abused, even though Hesketh did not take the picture or participate in the photographed abuse.”

    Yes, Hesketh did take part in the abuse when he downloaded the pictures. The child did not give consent to the abuse and neither the child or adult gave consent to Hesketh to download the pictures of her abuse as a child. He directly caused the woman harm by downloading pictures of her abuse as a child.

    Further, intent is critical. He is downloading pictures of her abuse for the purpose of watching a child get harmed for his own “pleasure”. He is not downloading them to help expose a crime. His download is a crime. In watching the cruelty that happened to her as a girl, he is traumatizing the adult. (I won’t even go into what it means that so many people take please in watching a child be abused.) He absolutely owes her compensation for that trauma.

  13. My understanding from JT’s testimony is that the law as crafted by Congress creates more chaos and uncertainty in the Court system when it comes to getting full restitution from the class of “Possessors” or child pornography. And that the method or wording chosen by Congress has already been found to be unconstitutional by the SC.

    To avoid unnecessarily long protracted and expensive court proceedings, to prevent uneven distributions of restitution to only those who can afford to have their cases vigorously prosecuted and to avoid having ALL the restitution heaped on one or two possessors instead of the actual perpetrators of the production of the child pornography…….JT proposes that Congress change the wording of their law and set up a fund for restitution.

    This fund would be filled by getting restitution from the manufacturers and distributors of child pornography and a criminal fine system for the possessors dependent on how engaged they were in obtaining the materials, how much material they possess and how culpable they were in the production of the pornography.

    The Internet has changed many things and the distribution and viewing of pornographic material is certainly one of those things. You no longer have to go and BUY an 8mm film or video cassette to view. A mere click of a button can do this. A mere click of the button can purposely or even accidentally download tons of material

    Congress is dealing with this problem with a 1950’s mind set in a 21st century world. They need to get up to speed and understand how the world actually works. (in this and in MANY other issues they are hidebound ignoramuses)

    At least that is my take on the subject.

  15. There is a kid up the street who put his uttBay on Facebook. His parents want Facebook to pay restitution. Not only that. The kid cut an artFay while the photo was being taken and that aspect of the uttBay photo is clear on the Facebook. I would ask each of you to go view the Facebook page but then that would amplify things and the issue of restitution would be altered before the litigation could determine an amount of compensation. There is definitely a convergence here between those who can, those who do and those who artFay while in the can while preaching the do run do. All pornography should be illegal. It is the definition of what is pornography which defies the human race. Ask a dog. As a matter of fact, a dog on this marina named HumpinDog is going to give a comment later in the morning here.

  16. I agree with JT on making it a crime punishable by fines and perhaps even incarceration for the possessor. Without the buyer there would be no seller but it is the seller that is directly abusing the victim. The producer of the crime should be laid out hard. However, this brings into play the determination of the fine. A poor pedophile that is living on a fixed income that does not include enough to pay a fine contributes nothing to the fund. A rich pedophile with a good lawyer pays off and goes on his or her way.

    I believe in sizing the fine to the financial situation of the perpetrator. When I lived in France, a friend, a working girl, who made enough to have a car but not much more, got a ticket for speeding. The court reviewed: her income, her driving record, and the particulars of the offense, i.e. speed, place, time of day etc. Then they imposed a fine that she could afford to pay but that she would remember.

    I had another friend who was beyond rich. He owned a recording studio in Monte Carlo, and had inherited vast wealth. He got speeding tickets driving his Ferrari from Monte Carlo to Paris. His tickets were much higher, pegged to his income, speed, and typically involved lawyers fighting on his behalf. After a fourth ticket he lost his license for a year and had no recourse. Punishment only means something if it punishes. Both my friend the secretary and the wealthy pup were impacted equally.

    I realize that this is communist left wing and horrible but the intent of the law can sometimes not be both effective and to the letter. This is where the human element takes over from the dictates of divine law whether written by a deity or founding fathers.

  17. Hugh,

    First off, I think the term “child pornography” should not be used. It is child molestation or child sex abuse.

    As to your post, I am not following your link between pornography (to be clear, defined as the visual depiction of consenting adults expressing themselves in some sexual way) and “child pornography,” or any of your post for that matter.

    You imply that pornography is bad for society. Please explain why you think this is so?

    I do not see how making all pornography illegal will somehow magically save all children from the heinous and despicable crimes of child molestation/sex abuse.

  18. Thats like saying that as long as sex is legal there will always be child molesters.

  19. Personally, I believe that as long as pornography is legal, child pornography will continue. We live in a society where people want to feed their appetites, regardless of how base, and anyone who says that it’s bad for society and should be outlawed, will never get elected. So we want to have our cake and eat it. We care about children – but not *that* much. There’s an incoherence that’s difficult to describe, but it has something to with society’s inability to live without pornography, and then exaggerating the punishment for child pornography as a form of apology.

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