SVU Episode #15-19: Downloaded Child

This was a disturbing but important episode about the power of child pornography to destroy lives, and the power of the law to help victims get restitution.

Recap:

A little girl named Maddie totters on the brink of a 10-story apartment balcony; our detectives swoop in and save her from falling. Her parents aren’t home, leading the detectives to investigate a child neglect case. They discover that Maddie’s mother, Jenny, was a victim of child pornography herself. Jenny’s erratic behavior stems from her own traumatic childhood. As an eight-year-old, Jenny was videotaped having sex with her stepfather; the video was shared on the Internet thousands of times.

Instead of pressing charges against Jenny for leaving her child alone, the detectives help her collect damages from the men who downloaded pornographic images of her. But collecting from one man at a time is logistically difficult. The Violence Against Women Act allows Jenny to collect from a single rich porn viewer the entire $4 million she’s owed in damages. If he wants to sue the other offenders, he can.

Verdict: A

What they got right:

There is an ongoing legal debate about how child-porn victims can collect damages from offenders who downloaded their images. The Supreme Court just heard arguments in January on this very issue.

In the real case of Paroline v. Amy Unknown, an eight-year-old girl named Amy was sexually abused by her uncle, who then posted the images online. Amy’s images were traded thousands of times among child pornographers. When Amy (at age 17) started receiving notices from the government about these cases, she hired a lawyer and started suing the offenders, one by one, for restitution. The Violence Against Women Act allows victims of child pornography to sue people who saw their images, and collect money damages including lost income, counseling, medical expenses, and attorney’s fees. Using VAWA, Amy has succeeded in collecting about $1.7 million from more than 170 men.

In January, the Supreme Court heard arguments in a case Amy brought against Donald Paroline. Paroline was caught with hundreds of images of child pornography, including two pictures of 8-year-old Amy. Amy sued him for the restitution due from all offenders who viewed her images; the Fifth Circuit upheld her claim. This is known as “joint and several liability,” and effectively forces the porn offender, rather than the victim, to collect from the other offenders.

But other courts have held that a single offender can only be held responsible for his own portion of the restitution. In an unusual move, a bipartisan group of Senatorsfiled a brief with the Supreme Court, in which they explicitly stated that they did mean to include this form of restitution in VAWA for victims like Amy. Hang tight to find out what the Supremes say.

Tonight’s episode also highlighted that child pornography isn’t a victimless crime. Each time an image is downloaded, the child is revictimized. I loved the courtroom scene where Jenny confronted the child porn offender (right after his daughter finished speaking on his behalf). It was very realistic and summarized the harrowing issues that cases like this present.

Many American judges feel that watching child porn is victimless crime. It’s not. The damages caused by this marketplace and all the actors in it are devastating. I wish every judge in America would watch this episode of SVU.

What they got wrong:

No way would Olivia bring Jenny to her own personal therapist. Detectives usually try to keep their personal and professional lives far apart.  I’ve even known detectives and prosecutors who refuse to keep family photos on their desks for that reason.

What do you think, SVU fans? Should a single porn viewer be responsible for the damages caused by every other offender who views the images? Who should have the burden of collecting damages, the victim or the offender? And did Olivia and Cassidy break up or get back together? (I couldn’t tell.) Leave your comments!

About Allison Leotta

Comments

  1. James Pollock says:

    I’m a little bit concerned by a possible unintended side effect.

    One big advantage of the Internet is that it allows virtual communities. That is, people with various interests can find other people who share those interests, even if they are geographically remote This is great for people who are interested in, say, 17th century French poetry, but the dark side is that socially-disfavored minority interests can form communities, too, and that’s exactly what happened to child-pornography collectors.

    The problem I foresee is if you successfully sue someone for joint-and-several liability, they have a right to sue others who are joint-and-severally liable for contribution. So, if someone is on the hook for a joint-and-several judgment, duoesn’t this entitle them to have copies of the FBI’s files on who’s downloaded copies of those same identified images? Isn’t there a risk that the notification and monitoring systems of the FBI could be used by a child-porn collector to contact other child-porn collectors?

    • That is such an interesting point, James. I’m not sure what the FBI’s obligations would be in terms of responding to discovery in a civil lawsuit between porn offenders. Your comment has prompted me to go look it up!

  2. TokoBali says:

    What bugs me about this “joint and several liability” thing is that one convict is held accountable for the crimes of another. Seems to me that a basic principle of criminal law is that you hold offenders accountable for their own actions, not those of someone else. You wouldn’t convict the fence for what the burglar did, even if the fence’s crimes create the market for those of the burglar. But European social-democrat that I am, I prefer the Dutch version, where victim support and therapy is (partly) financed by the Department of Justice.

    Besides it being a bad idea for a detective and victim to share therapist, isn’t it also a huge no-go for a therapist to make physical contact with their patients, especially hugging? Seems like a very bad idea to me, for several reasons.

    • James Pollock says:

      “You wouldn’t convict the fence for what the burglar did, even if the fence’s crimes create the market for those of the burglar.”

      Actually, you might, if the jurisdiction considers accessories to a crime as equally culpable as principals. The U.S. federal government sets accessory liability at half the penalty for the underlying crime, but states are free to choose otherwise.

      Typically, the fence is charged with their own crime, since receiving stolen property is a separate crime.

      However, this is not a case of criminal liability, but civil liability. Joint-and-several liability is a tool to ensure that the person harmed by multiple tortfeasors can get a recovery as soon as possible, because it removes the necessity of apportioning blame. The injured party wins their claim and recieves a judgment which can be enforced upon any of the tortfeasors (i.e., whichever one has money or assets to pay it.) The person who pays can then sue the others for contribution, but may receive a judgment that cannot be enforced because the other tortfeasors haven’t the assets to pay.

      While there is some unfairness to this model (Tortfeasor A may have to pay the entire judgment even though tortfeasor B did 99% of the tort), the response is two part: First, if the court must choose who is left with an unenforceable judgment, the injured party or one of the tortfeasors, the court chooses the tortfeasor. Second, if you don’t like it, don’t be a tortfeasor. Non-tortfeasors don’t have to pay judgments, joint-and-several or otherwise.

      • TokoBali says:

        But isn’t the separation between civil and criminal liability somewhat artificial when the origin of the case is a crime? I’d say that removing the necessity of appointing blame is indeed unfair in these cases, and the option for one to sue the others for contribution only partly repairs that unfairness.

        • James Pollock says:

          “But isn’t the separation between civil and criminal liability somewhat artificial when the origin of the case is a crime?”
          Lots of things are violations of both criminal and civil law. Take a battery for example. The civil side (liability for the tort of battery) allows the person actually harmed to try to collect money damages against the person who harmed them, while the criminal side (the crime of battery) allows the people of the jurisdiction to punish someone who does things that are not acceptable to society. If you just had the civil side, then rich people could do whatever they wanted by just payuing off the damages. If you just have the criminal side, then the victim isn’t able to seek redress for their damages. That’s why we have both.

          “I’d say that removing the necessity of appointing blame is indeed unfair in these cases”
          If the victim can prove “those three guys beat me up, and I had these medical bills and missed this much work as a result”, shouldn’t they win and get their damages? Why make them continue on beyond “it was those three guys who did it” to “that first guy was responsible for exactly 64% of my injuries, and that guy was responsible for exactly 33% of my injuries, and that guy was responsible for exactly 3% of my injuries” in order to get paid? Better to award the judgment against all three, let the victim collect from whichever one(s) he can, and if theone collected isn’t happy about how much he had to pay, he can sue the others to get them to pay their share.

          Again the argument “It isn’t fair that I have to pay for what those guys did!” is met with “then you shouldn’t have committed a tort against the victim.”

        • James Pollock says:

          I should point out that there are actually two new things presented in the episode. The joint-and-several liability is one of them; the other is that the civil court system is being bypassed. Suing someone is expensive and not effective when that person is “judgment-proof” (has no assets to pay). By seeking restitution as part of the sentencing at a criminal trial, the victim is spared to costs of suing offenders, and the state even picks up the collection costs. The only downside is that the state also decides how to allocate the restitution, and most people convicted of distributing child pornography have accumulated thousands of images by the time they get caught.

  3. James Pollock says:

    It obviously didn’t come up in this episode, but there are aspects of child pornography law that will probably need adjustment. Distribution of child pornography is a crime, despite the first amendment, because there’s no way to create child pornography without violating the law, and distribution creates a market that leads to more victimization of children… That is, allowing a market to exist in child pornography leads to sexual assault of children. The rights of children not to be sexually abused outweighs the interests of anyone in possessing or distributing images, even of people who consent to the creation and distribution.

    This pillar rests on the notion that child pornography cannot be created without breaking the law. But… that’s not strictly the case. For example, the prevalence of cellphone and digital cameras has led to a society where people take photos of themselves being naked (not necessarily pornographic) or doing sexual things (definitely pornographic)… and some of the people creating and sending these photos are underage. So, in those cases, the person who created and distributed the image initially is also the victim at the same time. So do we prosecute them for distribution of child porn? They are, in fact, guilty of violating the statutes.

    Then there is the problem that not all sexual activity involving minors is illegal. Some states have an age of consent that is below 18, or that carve out exceptions to their statutory rape statutes for situations where both persons involved are minors., and several states allow minors to marry. Thus, there are lots of cases where a person who is a minor may lawfully engage in sexual activity, but it’s illgal to record it. Reductio ad absurdum: One 17-year-old spouse suspects his or her spouse, also 17 years old, of being unfaithful. A private detective is hired, who surveils the wayward spouse and catches them in the act. When the photos are presented as proof, boom! Federal criminal liability for recording underaged persons having sex.

  4. Jermaine Wilson says:

    I have to whole heartedly disagree with the underlying story in this episode. I honestly do not believe that downloading any form of media effects a person the way that the show has stated. “Each time an image is downloaded, the child is revictimized” is probably one of those quotes that someone comes up with, usually a politician and it gets carried with the wind years later. That quote is always stated by District Attorneys, Police Officers, and politicians, however it has no basis.

    If each time an image is downloaded and the child is revictimized, then what law enforcement does everyday download child porn for the sake of arresting someone is hurting the child either way. I found a court document related to this issue. There are logical fallacies in arguements relating to child pornography, such as viewing an image causes harm, viewing creates pedophiles, and viewing causes more supply because of a demand.

    “….an FBI agent testified in another case, when law enforcement downloads files from Lime Wire, it is not contributing to the global demand for child pornography and not causing any new child pornography to be made because the files already exist and no financial or other incentive is given.”
    Tr.of Sent’g Hr’g at 31-32, United States v. Bistline, No. 2:09-cr-00085-JLG-TPK (S.D. Ohio Jan. 7, 2010)

    I’m not supporting this, it is just that what is said in politics has influence in SVU, therefore it is just an exaggeration. I can understand that the victim is harmed when he/she is notified that someone has been arrested with possessing images of them, but I cannot agree with the statement from SVU or anyone else that viewing = harm.

  5. James Pollock says:

    The U.S. Supreme Court just knocked a big hole in this story, ruling that possessors of child porn do owe restituion to the victims, but only based on their proximate contribution to the injury.

  6. April 30, 2014

    Allison Leotta,
    Huffington Post Blog re: SVU Shows Downloading Child Porn . . .
    Dear Ms. Leotta:
    In light of last week’s Supreme Court decision to limit the amount of damages that offenders convicted of possession of child pornography must pay to victims, the members and board of our organization, CAUTIONclick National Campaign for Reform (CCNCR) would like to take this opportunity to respond to Allison Leotta’s blog entry ” ‘SVU’ Shows Downloading Child Porn Isn’t a Victimless Crime,” posted on April 3, 2014. In the case of Paroline v. United States, the Justices’ decision to interpret the Violence Against Women Act in a reasonable and common sense manner should be applauded.
    CAUTIONclick National Campaign for Reform is a grassroots organization composed of concerned citizens who are dedicated to promoting public safety, smarter legislation, and the reform of overly punitive sanctions for first time, non-production child pornography offenders. While we do not condone or excuse such viewing of child pornography, nor do we feel it is a victimless crime, part of our mission is to educate the public about how current technology has contributed to the ease of online access by our young men, contributing to the explosion of convictions, incarcerations, and sex offender registrations for those who have otherwise led clean, productive lives.

    Due to the recent proliferation of overly harsh laws and restrictions imposed by well-meaning, but uninformed politicians, prosecutors, and judges, the punishment for first time possession of child pornography has become even more severe than many hands-on, violent offenses and even reaches the level of punishment for murder. This does not even take into account the fact that many of these offenders are minors themselves. We must ask ourselves: how much punishment is enough punishment for many young men whose decisions to view CP on a computer were due to curiosity, immaturity, and ignorance, rather than due to an attempt to sexually victimize a child?
    We do believe that offenders should be held accountable, and that victims should be compensated for psychological and financial damages, but there must be a common sense limit to this compensation. As Justice Kennedy rightly stated, the courts must assure that the defendants are liable only “for the consequences and gravity of their own conduct, not the conduct of others.”

    As a former sex-crimes prosecutor, Ms. Leotta presents a very one-sided view of this complicated issue regarding victim liability. A victim is re-victimized due to the government’s decision to notify a victim each time an image is viewed; why does it make sense to continue this “re-victimizing” on the part of the law? Many individuals in our organization are past victims of childhood sexual abuse who have chosen not to remain victims but to carry on with their lives and to address the need for better therapeutic approaches rather than additional punitive approaches to this complex issue.

    We question Ms. Leotta’s claim that many American judges feel viewing child pornography is a victimless crime. We recognize the fact that a few judges are admirably beginning to realize that the current sentencing guidelines for non-production child pornography offenses are overly punitive and inconsistent. In its almost 500-page report issued in February, 2012, the United States Sentencing Commission has recommended to Congress an overhaul of these sentencing guidelines.

    And let us not forget who the real perpetrators of such heinous crimes are. The producers and distributors, who are often times family members or friends of the victims, should be more actively sought-after by the law and held responsible for the victims’ restitution. As with the war on drugs, it is becoming obvious that the FBI needs to apprehend the major players in this crime and not just continue to pick the “low-hanging fruit.” In the “Amy Unknown” case, her uncle should bear the burden of the $3.4 million in damages, rather than one porn offender.
    Again, we applaud the Supreme Court decision to limit the amount of damages paid to victims as relating to the harm caused by a specific offender, if only for the reason that it points out the law Congress passed is flawed and needs revisiting. It is time for more a more thoughtful and sensible approach to this issue, based on empirical evidence and common sense rather than emotionally charged, overly-punitive reactions.
    Sincerely,

    Gail Colletta, President and CEO
    CCNCR
    561-305-4959 or [email protected]
    [email protected] http://www.Cautionclick.com

    Cc: Allison Leotta

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