The Perils of Paroline v. United States and What Congress Must Do Next

Photo Credit:

The Supreme Court’s decision in Paroline v. United States cannot be an easy read for the victims of child pornography.   It is filled with the legal jargon of statutory interpretation, restitution, and torts, because, in the Court’s defense, that is what the legal issues are about.  For the survivors, though, this case is only about how to wring some justice out of the wild west marketplace in internet pornography.  The guidance they receive in Paroline is unsatisfying, but it should not be disheartening.    Congress simply has more work to do.

Survivors: this opinion is one step toward our society’s movement to create a better system of justice for you.  We are in a marathon, not a sprint.

The Facts

The facts of the case are straightforward: Amy (not her real name) was sexually assaulted by her uncle, who also taped the abuse and then distributed it, unbeknownst to Amy.  She eventually sought counseling for the acts of abuse and reached a level of coping that was more than acceptable for her young age.  But then she learned in her late teens that her image was widely shared and coveted by pedophiles on the Internet, and a new pain entered her life, along with a fear that anyone she might meet would have seen her being sexually abused as a child.   The deep hell of Internet child porn is that it is permanent.   Deleting the images that are stored randomly in computer after computer and that flit across country and continental  boundaries is, in a word, impossible.

David Pittman of Together We Heal eloquently wrote today of the fact that child sex abuse is more like incurable cancer or heart disease; you never “get over it” even if you learn to live with it.  Even moreso, how do you “get over” child porn in which you are featured?  By having to learn how to live with it every day.  That happens with long-term counseling , loved ones, and justice.  The latter is delivered via criminal prosecution of the creators, distributors, possessors, and viewers of child porn, and restitution and damages from those in the marketplace who have destroyed a vital aspect of the victim’s self and soul.

The Ruling

The question in this case is whether the government can obtain restitution for Amy under the federal restitution statute, which applies to anyone  who is convicted of crimes involving child pornography and the sexual exploitation of children.  Paroline, the Defendant in the case, was convicted of knowingly possessing child pornography.

Congress enacted the statute for the purpose of aiding the victims of child pornography, who must fight an amorphous and largely hidden black market in the images of children subjected to sex assault and abuse.  As I explained in my amicus brief for APSAC, survivors of child pornography are harmed by everyone in the marketplace, whether producers, rapists, distributors, possessors, or one-time viewers.  It is the very existence of the marketplace itself that harms the victims and our children in the future.

Thus, Congress states quite plainly that district courts can order defendants “to pay the victim . . . the full amount of the victim’s losses as determined by the court.”  The question in the case is whether Paroline, who solely possessed the images, can be on the hook for the entire cost of the harm done to Amy.

Amy argued, “Yes.”  She said let the burden of apportioning fault and amounts of restitution be fought out by the market participants.   The government argued, “Only If.” It said only if the defendant is the “proximate cause” of Amy’s injuries should defendant be on the hook.  Paroline argued, “Not in This Case.” Defendant said not in this case, because there was no proof of his being the proximate cause of Amy’s injuries, because she did not even know he existed, let alone that he had viewed images of her as a child.

Only Justice Sotomayor embraced Amy’s reasoning.  Justice Kennedy, joined by Justices Ginsburg, Breyer, Alito, and Kagan, wrote for the majority, along the government’s lines essentially, that Amy should get some compensation from Paroline, but it could not be that he would be liable for all of her harm.  First, the restitution is mandatory, so no court can choose not to order restitution.  Second, the government bears the burden of proving that the defendant is the proximate cause of the harm to the victim, understood as a “flexible concept,” which the Court says is composed of actual harm and some direct relation to the defendant.

In what may be the understatement of the Term, the majority, having described its flexible test: “There remains the difficult question of how to apply the statute’s causation requirements in this case.”  No joke.  Amy’s harm is easy enough to quantify, the Court says, but the sticky part comes in determining Paroline’s share of the harm.  On the one hand: “Paroline’s contribution to the causal process underlying the victim’s losses was very minor, both compared to the combined actors of all other relevant offenders, and in comparison to the contributions of other individual offenders, particularly distributors . . . and the initial producer of the child pornography.”   Amy suggested that the marketplace participants fight amongst themselves over how much each owed, after one or many paid full restitution, but the Court cautions that in a case involving criminal restitution, that might run up against the Excessive Fines Clause and, moreover, Congress has never enacted a federal right to contribution between defendants.

Sounds like Paroline will owe peanuts, but then the court says that “it is indisputable that he was a part of the overall phenomenon that caused her general losses. . . [and] it would produce anomalous results to say that no restitution is appropriate in these circumstances.”  Therefore, he should have to pay something meaningful, as in not merely a “token or nominal amount.”  The Court then throws out a series of factors to consider, cautions the lower courts from turning them into a hard and fast test for every case, and sends the case back down for the lower courts to assess how much Paroline must pay Amy in restitution.

The Problem

This is a hard case, in part because we are still not very good at dealing with the evils of the Internet.  As Justice Kennedy’s majority opinion and Justice Sotomayor’s dissent agreed, it just cannot be that a victim should have to prove that she knew the identity of the posessors and traders in her images when the distribution network is the Internet.  That is an impossible task.  And, without question, she was harmed by Paroline, even if she did not know about him.

The Solution

But it is even more of a hard case, because Congress’s language is not clear, and the system it laid out does not comport with anything we have seen before.  There is a simple two-part fix, if you parse Justice Kennedy’s and Justice Sotomayor’s views closely enough: (1) Congress should enact a federal rule of contribution among child pornography defendants and (2) replace “proximate cause” with “aggregate causation.”  That would make it possible for the many Amys of our world to obtain restitution from even one perpetrator in the marketplace and obtain full restitution.  The best part of this solution is that it would then incentivize the one defendant forced to pay it all to identify others as contributors.  Let the defendants go after their many contacts in the market for contribution.  That reduces the restitution, even if levied against a single person, from an excessive personal fine, and puts the burden of parsing out blame on the bad guys, not the victims who never asked to be on the Internet in the first place.

Marci Hamilton

Marci A. Hamilton is one of the United States’ leading church/state scholars and is a Fox Family Pavilion Distinguished Scholar in Residence in the Program for Research on Religion and Urban Civil Society at the University of Pennsylvania. She is also the Academic Director and President of CHILD USA, a 501(c)(3) nonprofit dedicated to interdisciplinary evidence-based research and tracking of medical, legal, and psychological developments to prevent and deter child abuse and neglect, which she co-leads with Dr. Steven Berkowitz, University of Pennsylvania Medical School, and Dr. Paul Offit, Children’s Hospital of Philadelphia. She holds the Paul R. Verkuil Research Chair at the Benjamin N. Cardozo School of Law, Yeshiva University, through 2018.