NYT Sunday Magazine: The Price of a Stolen Childhood

[proverbialwisdom]

http://www.nytimes.com/2013/01/27/magazine/how-much-can-restitution-help-victims-of-child-pornography.html?ref=magazine

The Price of a Stolen Childhood

by Emily Bazelon, NYT Magazine
Print edition: January 27, 2013
Published online: January 24, 2013
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Marsh researched legal remedies for Amy. Combing through his casebooks, he found a provision in the Violence Against Women Act that he had never heard of before: it gave the victims of sex crimes, including child pornography, the right to restitution or compensation for the “full amount” of their losses. Enumerating what those losses could be, Congress listed psychiatric care, lost income and legal costs and concluded, “The issuance of a restitution order under this section is mandatory.”

The provision for restitution, enacted in 1994, had yet to be invoked in a case of child-pornography possession. The basis for such a claim wasn’t necessarily self-evident: how could Amy prove that her ongoing trauma was the fault of any one man who looked at her pictures, instead of her uncle, who abused her and made the pornography?

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In October, the Fifth Circuit ruled in Amy’s favor, in a 10 to 5 decision. The court also accepted the theory of joint and several liability, finding that this means of allocating shared responsibility can ensure “that Amy receives the full amount of her losses, to the extent possible, while also ensuring that no defendant bears more responsibility than is required for full restitution.” Victims and the Justice Department can keep track of how much has been recovered, and courts can set a payment schedule based on an individual defendant’s ability to pay. “Ultimately, while the imposition of full restitution may appear harsh, it is not grossly disproportionate to the crime of receiving and possessing child pornography,” Judge Garza wrote for the court. “Defendants collectively create the demand that fuels the creation of the abusive images.” Garza sent Amy’s award of $529,000 back to the lower court because it did not provide for restitution “in full” — in other words, it was too small.

The Fifth Circuit’s decision creates a clear split among the appeals courts over how to interpret Congress’ provision of restitution for sex-crime victims — a split that only the Supreme Court can resolve. Cassell and Marsh have asked the justices to do that, and the court could hear a restitution case as early as next fall.

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Repost from: http://www.democraticunderground.com/1014382019

[mzteris]

1. Not enough money

In the world makes up for what is stolen.

[proverbialwisdom]

2. 10/3/12 Press Release - PROTECT to Holder: Shut Down Campaign Against Child Pornography Victims

http://salsa.democracyinaction.org/o/1724/t/0/blastContent.jsp?email_blast_KEY=1257645

PRESS RELEASE

For immediate release
October 3, 2012

PROTECT to Holder: Shut Down Campaign Against Child Pornography Victims

Justice Department Should Accept 5th Circuit Appeals Court Ruling

(KNOXVILLE, TN) The U.S. Justice Department should accept this week’s federal appeals court ruling in the case of Amy Unknown and cease and desist its campaign against victims of child sexual exploitation, PROTECT said today.

“Attorney General Holder should shut down this shameful campaign immediately,” said PROTECT’s executive director Grier Weeks. “He should accept this verdict and stop wasting taxpayer money to defend human rights violators.”

The 5th Circuit U.S. Court of Appeals ruled Monday that victims can go after individual perpetrators of child sexual exploitation for full damages. “By possessing, receiving, and distributing child pornography, defendants collectively create the demand that fuels the creation of the abusive images,” the court wrote.

It was a rebuke to the Justice Department, who is fighting the efforts of Amy and other victims to secure restitution under the Crime Victims Rights Act of 2004.

“We gave Attorney General Holder a private, half-hour briefing in 2009,” said Weeks. “We implored him to arrest hundreds of thousands of child pornography traffickers whose locations are known to the Justice Department. Not only did he refuse, he turned around and sent government lawyers to go after the victims.”

Amy was repeatedly raped by an uncle at the age of four. The images of those crimes have shown up in over 3,200 criminal cases since 1998, causing her severe trauma.

Although the law limits Amy to collecting only her proven, documented damages, the Justice Department argues she should have to do that in tiny increments. The Department argues that courts should “divide the pool of Amy’s proven losses by the number of defendants convicted of possessing Amy’s image.” This would require victims to dedicate their lives to going into court to collect ever-diminishing amounts from ever-expanding numbers of perpetrators, effectively making legal action pointless. Amy has already sought restitution in 174 cases, receiving awards as low as $100.

PROTECT began calling to raise the stakes on child exploitation in 2006, with an article by Andrew Vachss in Parade magazine and subsequently through Congressional testimony and the PROTECT Our Children Act of 2008, which was sponsored by then Sen. Joe Biden (D-DE) and Sen. Orrin Hatch (R-UT), and Rep. Debbie Wasserman Schultz (D-FL) and Rep. Joe Barton (R-TX).

PROTECT’s sister organization, the National Association to Protect Children, joined child exploitation survivors with an amicus brief to the U.S. Supreme Court in 2011, opposing the government’s argument. The court declined to hear that case, but Monday’s ruling, which conflicts with other appeals court decisions, could return the case to the Supreme Court once again.

PROTECT is exploring new federal legislation for 2013 that would strengthen crime victims’ right to restitution, expand asset forfeiture and use criminal fines to create victim assistance funds.

In 2011, PROTECT worked with the Virginia Legislature to enact a mandatory restitution law similar to one upheld by the 5th Circuit. Now victims in Virginia can avail themselves to the same rights upheld by the 5th Circuit.

“Mr. Holder should understand that, just as in his personal life, he doesn't have to win every debate,” says Weeks. “He should give this up and move on. It would be shameful and politically costly if the government takes this spectacle to the United States Supreme Court.”

[proverbialwisdom]

4. Evidence suggests that superficial appearances (above) may be misleading and conclusions premature.

http://www.facebook.com/photo.php?fbid=494510373926721&set=a.160060797371682.34863.110806432297119&type=1&relevant_count=1&ref=nf

[img][/img]

December 07, 2012

President Obama held an Oval Office bill signing for our Child Protection Act of 2012 Friday. Joining him from left to right are three of the principal sponsors: Sen Richard Blumenthal (D-CT), Rep. Lamar Smith (R-TX) and Rep. Debbie Wasserman Schultz (D-FL). Sen. John Cornyn (R-TX) was in Austin to announce the victory there with PROTECT Texas Chairman Chart Westcott. (We're gearing up in the Lone Star state for 2013.) The bill reauthorizes the PROTECT Act of 2008, authorizing child rescue funding at twice current levels.

http://www.whitehouse.gov/the-press-office/2012/12/07/statement-press-secretary-hr-915-hr-6063-hr-6634

The White House
Office of the Press Secretary

For Immediate Release December 07, 2012
Statement by the Press Secretary on H.R. 915, H.R. 6063, H.R. 6634

On Friday, December 7, 2012, the President signed into law:

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H.R. 6063, the “Child Protection Act of 2012,” which makes changes to the Criminal Code related to child pornography and protection of child witnesses and Department of Justice programs related to prevention and interdiction of child exploitation and child pornography on the Internet;

[cthulu2016]

3. As law this is all messed up

The precedent of attaching liability to creating a market for crime is grotesque.

This is not an issue one reasons backward from the fact that child pornography is outrageous.

Law is law, and liability for creating demand for a product is a real problem, as a legal concept.

Would it be legal for congress to make everyone in possession of marijuana civilly liable for actions of Mexican drug cartels?

They are *responsible* in the way that everyone who eats a hamburger is responsible for shooting a cow in the head, but that is not LEGAL responsibility.

[proverbialwisdom]

5. Attorney Andrew Vachss and others disagree, vehemently.

http://protect.org/legislation/1504-success-victim-restitution-under-protects-law

Success! Victim Restitution Under Virginia's PROTECT's Law
Tuesday, 20 September 2011 12:00

http://www.vachss.com/pastupdates.html

In his February 2006 Parade article, Andrew Vachss wrote, "[W]e must begin to treat so-called 'simple possession' of child pornography as the heinous crime it is. Every purchase of child pornography encourages further growth of this evil business: from 'custom' child pornography—the sale of images of child rape created to order for the consumer—to 'real-time' child pornography, where subscribers pay to watch the streamed online rape of children as it occurs." He clarified that statement in an interview with Protect, saying, "I specifically want the federal government to be able to sue, because it has both the resources and the mandate. I am not advocating 'class action' suits on behalf of unidentified victims. The goal is not enrichment of individual lawyers. The goal is to benefit child pornography victims, penalize the profiteers, and add assets to the agencies charged with enforcing the law." Now, four years later, someone is doing exactly that. Read "Child Pornography, and an Issue of Restitution," from the February 2, 2010, edition of the New York Times, by clicking here.
(Updated 02-10-10)

http://www.vachss.com/av_dispatches/parade_021906.html
http://www.protect.org/tools/articles/8-articles/1045-raising-the-stakes-for-child-pornography--protects-exclusive-interview-with-andrew-vachss
http://www.nytimes.com/2010/02/03/us/03offender.html?_r=0