Comments on: Pornography's victim wants viewers to pay

Pornography's victim wants viewers to pay

Joe in Australia — Wed, 03 Feb 2010 15:48:16 -0800

Amy's uncle started abusing her when she was four years old. Depictions of her abuse are "one of the most popular and readily available kiddie porn videos on the Internet." Her lawyer has a novel - and apparently successful - strategy for recovering compensation: use the theory of joint liability to sue everyone with a copy of the video.

By: RussHy

RussHy — Wed, 03 Feb 2010 16:01:43 -0800

There are no words.

By: shockingbluamp

shockingbluamp — Wed, 03 Feb 2010 16:06:30 -0800

If I wanted to ruin my day I'd do my taxes. I don't want to know any of this.

By: St. Alia of the Bunnies

St. Alia of the Bunnies — Wed, 03 Feb 2010 16:11:01 -0800

After reading just the first link, I want to cry. No one should ever, ever have to feel like that.

By: sallybrown

sallybrown — Wed, 03 Feb 2010 16:11:54 -0800

From the article linked last: Amy's uncle is now in prison, but she is regularly reminded of his abuse whenever the government notifies her that her photos have turned up in yet another prosecution. More than 800 of the notices, mandated by the Crime Victims Rights Act and sent out by the federal victim notification system, have arrived at Amy's home since 2005. I can't imagine having such horror and pain delivered between my cable bills and catalogues. Good luck to Amy and her lawyer.

By: hippybear

hippybear — Wed, 03 Feb 2010 16:12:33 -0800

She is demanding that everyone convicted of possessing even a single Misty image pay her damages until her total claim of $3.4 million has been met. Good for her and her lawyer. However, I think she's not doing it right. She should be demanding that her total claim be paid by EACH of those convicted of possessing an image. $3.4 million from every one of 'em. And if their wages are garnished until they day they die, then oh well. As the NYT article states at its close, our policies do not take into account damages done to the children being photographed very well. If this sets a president, I'll be pleased.

By: hippybear

hippybear — Wed, 03 Feb 2010 16:13:30 -0800

precedent. Grrrr. My kingdom for that 3-minute edit window.

By: dabitch

dabitch — Wed, 03 Feb 2010 16:16:20 -0800

Too torn up after reading her statement which had me in tears within a paragraph. Can't imagine how those discussing this from a cold legal standpoint do it, and agree with hippybear above. typos and all, since I probably made some myself now

By: deadmessenger

deadmessenger — Wed, 03 Feb 2010 16:27:08 -0800

In February, when the first judge arranged payment to Amy in a case in Connecticut, Jonathan Turley, a law professor at George Washington University, called the decision "highly questionable" on his blog and said it "stretches personal accountability to the breaking point." Professor Turley, you are WRONG. Inexcusably, inexplicably, staggeringly and quite tragically wrong. This is the very definition of personal accountability. The consumers of child pornography are the fuel for the engine that created it, and they should very much be held personally accountable for their complicity.

By: scrowdid

scrowdid — Wed, 03 Feb 2010 16:40:23 -0800

If this goes through, can the Chiffons sue everyone who bought a copy of "My Sweet Lord"?

By: fuq

fuq — Wed, 03 Feb 2010 16:46:11 -0800

Finally a use for all the government web monitoring data

By: dnesan

dnesan — Wed, 03 Feb 2010 16:47:26 -0800

The first visible comment on the article (as of my reading) has the title "Amy's lucky". WHAT the FUCK?!...

By: Max Power

Max Power — Wed, 03 Feb 2010 16:48:31 -0800

If this goes through, can the Chiffons sue everyone who bought a copy of "My Sweet Lord"? you get a B for knowing who the Chiffons are, and an F for equating the posession of child pornography with owning a plagiarized song.

By: Joe in Australia

Joe in Australia — Wed, 03 Feb 2010 16:58:14 -0800

Can't imagine how those discussing this from a cold legal standpoint do it ... Training. You hear a lot of awful cases in law school. Look at it this way: Amy needs support, not just sympathy, and she wouldn't get the help she needs if her lawyer broke down when he contemplates what happened to her. He's a gutsy guy and (quite apart from the compensation) he is making those videos toxic. I hope the publicity given to his campaign will make the distributors think twice.

By: delmoi

delmoi — Wed, 03 Feb 2010 17:16:46 -0800

Good for her and her lawyer. However, I think she's not doing it right. She should be demanding that her total claim be paid by EACH of those convicted of possessing an image. Well, if that happened there would be no money left for other victims.

By: delmoi

delmoi — Wed, 03 Feb 2010 17:21:46 -0800

Professor Turley, you are WRONG. Inexcusably, inexplicably, staggeringly and quite tragically wrong. This is the very definition of personal accountability. The consumers of child pornography are the fuel for the engine that created it, and they should very much be held personally accountable for their complicity.

I'm not really sure that's accurate, It seems like a lot of this is created by people who want to trade it, rather then pay for it financially. Especially in cases where it was produced in the U.S. (Maybe payment is more common in other countries) Once it gets beyond the initial traders (who make porn to trade) I don't see how simply having it on a hard drive makes it more likely to be produced. You could make the argument that by knowing that these people have viewed the tapes, Amy is re-victimized, and thus deserves compensation for that reason.

By: drjimmy11

drjimmy11 — Wed, 03 Feb 2010 17:24:00 -0800

I'm sorry this horrible thing happened to her. But: This is the very definition of personal accountability. The consumers of child pornography are the fuel for the engine that created it, and they should very much be held personally accountable for their complicity. So consumers of a snuff film can be charged with murder? Consumers of Coca-cola can be charged for the companies misdeeds in South America? Wearers of Nike can be charged with employing child laborers? If it weren't for the hysteria surrounding sex-related crimes, would anyone even give this ludicrous idea one second of consideration?

By: Justinian

Justinian — Wed, 03 Feb 2010 17:25:52 -0800

Professor Turley, you are WRONG. Inexcusably, inexplicably, staggeringly and quite tragically wrong. No, actually, I don't think he is and I suspect you didn't actually read his entire post on the topic. This case is, obviously, the very best example of a "think of the children!" shut-off-the-critical-facilities inducing event, but that doesn't mean we mustn't at least try to think about the implications. Turley's point is that we generally only hold people directly liable for victims they directly harm, not indirectly. And since the people in this case never met, spoke with, or had contact of any sort with Amy she is the indirect victim of their crime. The person who victimized her directly is her uncle, who is already in jail. You may feel uncomfortable thinking about such a horrible crime in this way but from a legal and societal standpoint it is important because, as Turley correctly notes, if you extend this principle in logical fashion you've just made a hell of a lot of people directly liable for a hell of a lot of crimes and given every civil attorney a giant club to extort^H^H^H negotiate money out of people with. And I promise you that a lot of the people who get targeted will not be scumsucking bottom feeders like this. Which is why you have to give scumsucking bottom feeding child pornographers the same benefit of good law as everyone else. Not to protect them, but to protect us. The same logic used in this instance can be used to show why every person in this thread who has downloaded a single copyrighted MP3 should be held directly liable for monetary damages to multiple parties. And if your reaction to that statement is "HOW DARE YOU COMPARE DOWNLOADING TO THIS! THINK OF THE CHIIIIIILDDDDREEEEENNNZZZ!" then, well, I guess you've fallen victim to the whole "shut off the critical thinking" trap that gets so many bad laws passed. Let me reiterate the key point: Lots of bad policy and law gets made in exactly this way, by presenting incredibly sympathetic victims against terrible victimizers and then how can anyone in their right mind oppose it? Pay no attention to the problems behind the curtain. For exhibit A I give you all the terrible "sex offender" laws out there. Do I really need to start listing them?

By: Justinian

Justinian — Wed, 03 Feb 2010 17:26:18 -0800

Damn you for stealing my thunder, drjimmy. Damn you!

By: drjimmy11

drjimmy11 — Wed, 03 Feb 2010 17:27:24 -0800

You could make the argument that by knowing that these people have viewed the tapes, Amy is re-victimized, and thus deserves compensation for that reason. By that argument, everyone who has ever told an OJ joke owes the Brown family. Pay up, Leno!

By: drjimmy11

drjimmy11 — Wed, 03 Feb 2010 17:29:08 -0800

Let me reiterate the key point: Lots of bad policy and law gets made in exactly this way, by presenting incredibly sympathetic victims against terrible victimizers and then how can anyone in their right mind oppose it? Pay no attention to the problems behind the curtain. A-fucking-men.

By: designbot

designbot — Wed, 03 Feb 2010 17:30:10 -0800

Some child pornography defendants, such as Freeman and Norfolk's Shon Walter, who is serving 23 years in federal prison for looking at kiddie porn, are serving more time than Amy's uncle. The uncle, convicted of repeatedly raping Amy, filming the attacks and selling the videos, is eligible for parole in 2011 after serving a minimum of 12 years. Is there anyone in the world who thinks this makes sense? 12 years for repeatedly raping a kid and 23 years for downloading a video of it? WTF, America.

By: exogenous

exogenous — Wed, 03 Feb 2010 17:31:29 -0800

I find Turley's arguments compelling. I'll paste them some of them here:

There is no question that people who buy or trade such child pornography are contributors or facilitators of these terrible crimes. However, the extension of the definition of victim could lead to liability without limitation. Presumably, anyone watching porn movies with an underaged character or in possession of a magazine with such a picture could be similarly faced with restitution demands. Prosecutors could threaten targets with financial ruin under such theories — forcing guilty pleas to other offenses. Restitution is generally limited to the direct victims of the defendants actions. The concern is that there are a host of crimes that may involve the collateral crimes of others. Thus, receipt of stolen goods requires return of the property and a criminal penalty. However, a person guilty of possession is not normally required to pay restitution for a burglary if he did not play a role in the original crime. Thus, a pawn shop owner is responsible for the crime of possession of a stolen object but not restitution for the broken window or physical assault related to the break in. Yet, courts have traditionally limited restitution to the victims of the direct crime. Those who abused this child and photographed it would fit into such a category of offenders owing restitution. Likewise, if this defendant conspired or solicited the specific abuse or photography, he would be legitimately held for restitution. This should make for a very interesting appeal.

He has a second blog post on the topic. This reminds me of how anti-drug hysteria led to criminal forfeiture laws, where people with a marijuana joint in their house, boat, or car have that property confiscated.

By: exogenous

exogenous — Wed, 03 Feb 2010 17:35:51 -0800

To clarify, obviously child abuse is a horrendous crime with a real victim, whereas drug abuse is far removed from such a thing. But in each case when the public is so caught up in how despicable the crime is, justice is poorly served.

By: Justinian

Justinian — Wed, 03 Feb 2010 17:36:27 -0800

You could make the argument that by knowing that these people have viewed the tapes, Amy is re-victimized, and thus deserves compensation for that reason. This argument makes me uncomfortable. One could reasonably posit in such a case that the victimizer in this line of thought is actually the state, since the state is the entity directly responsible for bringing to Amy's attention that another sicko has been caught with the videos of her abuse. If the state didn't keep sending Amy letters informing her every time they find a freak with the tapes she wouldn't have it constantly beat into her head. If I had a child, for example, who died in a horrible car accident and the State of California kept sending me letters every couple of weeks pointing out that my kid was still dead, well, I don't think I'd take it very well. So I don't think the position you outline holds up when Amy's re-victimization is a direct result of state action and only an indirect result of the actions of these pervs.

By: jb

jb — Wed, 03 Feb 2010 17:39:23 -0800

Consumers of child pornography --that is, of images of real children (as opposed to texts or drawings) -- all know that a horrific crime has been committed in the making of that image. They are part of that crime, just as someone who learns of a murder after the fact and does not report it is part of a crime. My heart aches for Amy -- mostly that I do not know her personally and tell her how very wrong she is when she thinks less of herself for having been a victim. I know she probably knows this, but as she says in her statement she still cannot help feeling this way. I just wanted to say that if she ever does read this that she knows that no decent person would ever think less of her for what happened to her, but only more of her that she has survived. I wish her, and other victims, all the best in gaining some restitution. But more than that, I just pray for her (in my own agnostic way) and hope that she may find more personal support to begin to heal.

By: deadmessenger

deadmessenger — Wed, 03 Feb 2010 17:43:59 -0800

You could make the argument that by knowing that these people have viewed the tapes, Amy is re-victimized, and thus deserves compensation for that reason. You could also make the argument that Amy owns the legal copyright to the videos (being that she was the only person involved in it's creation that didn't commit a felony in the process, it's not actually hard to arrive at that conclusion), and each redistribution of such is an infringement on the copyright she owns.

By: deadmessenger

deadmessenger — Wed, 03 Feb 2010 17:53:47 -0800

Turley's point is that we generally only hold people directly liable for victims they directly harm, not indirectly. If I buy a piece of stolen property, I can be held both criminally (possession of stolen property) and civilly (the crime victim can sue to get their property back) liable.

By: Max Power

Max Power — Wed, 03 Feb 2010 17:55:57 -0800

The same logic used in this instance can be used to show why every person in this thread who has downloaded a single copyrighted MP3 should be held directly liable for monetary damages to multiple parties. Well plenty of people already have been fined hundreds of thousands of dollars for downloading mp3s, not even in copious amounts. So your saying that the recording industry is free to hold people accountable for illegally down loading mp3s, but a person who is the victim of underage pornographic photos has no right to hold those in possession of said photos accountable?

By: pla

pla — Wed, 03 Feb 2010 17:56:27 -0800

jb : They are part of that crime, just as someone who learns of a murder after the fact and does not report it is part of a crime. Um, no. With VERY few exceptions (almost all involving children and some form of "care" provider), in the US, you have no obligation to report a crime of which you have knowledge. In many situations (spouse, possibly self-incrimination), you even have constitutional protection from having to admit your knowledge, even if directly asked in court. A few states have passed laws to the contrary, but not one has yet gone before the supreme court, which pretty much must strike them down if one ever does.

By: deadmessenger

deadmessenger — Wed, 03 Feb 2010 17:59:13 -0800

So consumers of a snuff film can be charged with murder? No, but I think you're confusing civil law with criminal. Consumers of Coca-cola can be charged for the companies misdeeds in South America? Consuming coca-cola isn't illegal here. Wearers of Nike can be charged with employing child laborers? Wearing Nike shoes isn't illegal here. Trying to conflate the actions of people who beat off to downloaded kiddie porn (a crime in all 50 US States) with the actions of people who do mundane, legal things is ridiculous.

By: delmoi

delmoi — Wed, 03 Feb 2010 18:14:20 -0800

Another example of how this shared liability thing would be a problem, you could theoretically make every pot smoker liable for someone who died from a crystal Meth overdose, under the theory that they are all supporting the general drug trade. Even if you restricted it to the same type of drug (every Meth user responsible to Meth ODs)

You could make the argument that by knowing that these people have viewed the tapes, Amy is re-victimized, and thus deserves compensation for that reason.
This argument makes me uncomfortable.

I didn't say I agreed with that argument, just that it was an argument you could make that was more reasonable then the other one.

By: pla

pla — Wed, 03 Feb 2010 18:17:16 -0800

deadmessenger : Trying to conflate the actions of people who beat off to downloaded kiddie porn (a crime in all 50 US States) with the actions of people who do mundane, legal things is ridiculous. "So consumers of a snuff film can be charged with murder?" "No, but I think you're confusing civil law with criminal." If you take umbrage to irrelevant analogies, perhaps you could actually respond to the entirely relevant one you dismissed as "confused"?

By: zarq

zarq — Wed, 03 Feb 2010 18:23:49 -0800

I couldn't even get through her statement without becoming nauseous. Her story was far too familiar. I have several close friends who were abused as children by trusted family members. Screw the downloaders. Unlimited liability be damned. They know those videos and photos are illegal to possess and should have to deal with the consequences of their actions. As Joe said, if her lawyer can successfully make that vile stuff toxic and create a deterrent, let him.

By: Brandon Blatcher

Brandon Blatcher — Wed, 03 Feb 2010 18:33:05 -0800

Couple of things: 1. Her uncle, after being sentenced, should have been taken out back and shot, in the head. I say this not so much out of anger, but sheer logic. Anyone who would do this just shouldn't be here and by here, I mean this plane of existence. 2. I hope Amy learns to put this behind her. The fight to charge everyone who owns a copy may not be in the best interests of her mental and emotional health as it continues to define her as victim.

By: ellF

ellF — Wed, 03 Feb 2010 18:36:14 -0800

Screw the downloaders. Unlimited liability be damned. Thanks, no. Go thump your morality drum somewhere else; what's at stake here is greater than even the abuse of Amy, and saner minds would rather not trade short-term revenge for a longer-term degradation of the legal structure as a whole.

By: deadmessenger

deadmessenger — Wed, 03 Feb 2010 18:39:43 -0800

"So consumers of a snuff film can be charged with murder?" "No, but I think you're confusing civil law with criminal." If you take umbrage to irrelevant analogies, perhaps you could actually respond to the entirely relevant one you dismissed as "confused"? Sure. Assuming that the mere possession of an honest-to-$Deity snuff film is illegal (and I'm not really sure that it is, but I'm willing to make that assumption for the sake of argument), then yes, I believe that consumers of those illegal snuff movies should be liable to civil claims such as this one from the victim's family. However, that is not murder, nor does it rise to the level of such Does that satisfy you?

By: Bulgaroktonos

Bulgaroktonos — Wed, 03 Feb 2010 18:50:29 -0800

Screw the downloaders. Unlimited liability be damned. They know those videos and photos are illegal to possess and should have to deal with the consequences of their actions. They do deal with the consequences of their actions; they go to jail, for a very long time. It's not like these people are getting off scot-free if they don't have to pay her restitution. The question isn't, "should we punish people for possessing child pornography." Acting like the issue is whether or not these people should be punished confuses the actual question.

By: Kadin2048

Kadin2048 — Wed, 03 Feb 2010 18:52:50 -0800

The consumers of child pornography are the fuel for the engine that created it, and they should very much be held personally accountable for their complicity. Look, I'm in no way defending anyone who possesses child porn, but I'm not sure that's a true statement. The production of CP seems to more often be yet another manifestation of the abuser's tendencies; it's simply another form of abuse, not an economic crime. If the Internet or photography hadn't existed, I suspect the sexual abuse in the case in question would still have happened. It's not as though abuse didn't happen before the advent of photography or the Internet, certainly. There may be situations where child pornography is being produced for economic gain (and I suspect it goes hand-in-hand with child prostitution), but that doesn't seem to be the case here. Even if you eliminated all the distribution channels for CP, what you would have done is made the kind of abuse described in the FPP invisible, but not necessarily stopped or even curtailed it. It's being done for reasons that are much more complex, and frankly much more evil, than because there are people on the Internet presumably wanking to it. If we want to address the actual abuse rather than the distribution of porn, which strikes me as the right thing to do, we should concentrate on detecting, recognizing, and deterring or imprisoning abusers early.

By: selton

selton — Wed, 03 Feb 2010 18:53:16 -0800

I don't know where you'd download these kinds of videos. But wherever these are downloaded from, I suspect 'misty series' will become more popular as a search term with this publicity. The letters saying 'we've found another perv with your video on his pc' should stop and I'd guess she, for her own well being, should stop doing what she's doing now as well.

By: kid ichorous

kid ichorous — Wed, 03 Feb 2010 18:53:18 -0800

The consumers of child pornography are the fuel for the engine that created it, and they should very much be held personally accountable for their complicity. Doesn't this metaphor also fit the torture and execution of Daniel Pearl? It wasn't only used as a recruitment tape; its makers disseminated it online and to the press, and a significant cut of the tape made cable news. There are many acts of terrorism which play expressly to the camera's eye. They speak in special effect, and are able as Hollywood to address themselves to our nightmares. Only now it's politics, and not play, not CGI, that's written across the wrecking ball. The movie is projected upon reality. If the last decade is any measure, terrorism seen is panic, shattered morale, a depth-charge in the soul. Terrorism witnessed is the excitation of tensions underneath us all - economic, political, existential, theological. It creates situational heroes and categorical fascists. It leaves no net change - at least none I can discern - for the better. Terrorism unseen? ...is a statistic and an empty chair. There are hundreds of thousands of people who might not have died had America, on 9/11 and ever after, collectively pressed an OFF button and sent the dead thing back unsampled, untasted, this share in mute, poisonous spectacle. So. Is it a snuff film yet? Is America a criminal conspirator?

By: pla

pla — Wed, 03 Feb 2010 18:57:58 -0800

deadmessenger : Does that satisfy you? Well, yes and no. At the risk of appearing to bait you (and consider this a warning of the same), do you seriously mean to say that civil damages only look kosher when tied directly to the commission of a related-but-not-directly crime, but not when only connected via an otherwise-noncriminal act that benefits directly from the commission of a crime? Before you answer, consider the question in situations you find less emotionally charged - Such as where the money from OJ's various book deals went, and why (and whatever we all may think about it, remember that a duly conducted criminal proceeding found him not guilty).

By: c13

c13 — Wed, 03 Feb 2010 19:00:55 -0800

There is a lot of feeling in this thread. But very little thought.

By: Jilder

Jilder — Wed, 03 Feb 2010 19:05:53 -0800

So consumers of a snuff film can be charged with murder? Consumers of Coca-cola can be charged for the companies misdeeds in South America? Wearers of Nike can be charged with employing child laborers? If it weren't for the hysteria surrounding sex-related crimes, would anyone even give this ludicrous idea one second of consideration? With the exception of the mythic snuff film, in all your examples the consumer has a reasonable belief that the manufacture of these products fulfills all the legal obligations of production during the creation their product. This is why such outrage occurs when companies are found to be engaging in dodgy practices - it's a violation of the trust the consumer has with the producer of the product. In child pornography, there is in no way any doubt whatsoever that what is being filmed is illegal. It's pretty clear from the get-go, not just in terms of the difficulties one must go through to get the material, but the general social environment that the viewer exists in. You'd have to be terribly impaired not to have noticed the hysteria around paedophilia. A legal restitution to the victims of these films make perfect sense to me. Currently we punish the owners of child pornography, so I see no problem in applying a finacial burden to them as well.

By: ChurchHatesTucker

ChurchHatesTucker — Wed, 03 Feb 2010 19:05:56 -0800

Consumers of child pornography --that is, of images of real children (as opposed to texts or drawings) -- all know that a horrific crime has been committed in the making of that image. They are part of that crime, just as someone who learns of a murder after the fact and does not report it is part of a crime. If the makers of SAW XVI snuck in real footage of someone being killed (perhaps thinking it was public domain stock FX footage, perhaps just being malicious) the many thousands of people who saw it would be criminals? And what about posts to blogs, forums, etc. that alert everyone that there's this series of videos that are the real deal, and give you the names to go searching with?

By: deadmessenger

deadmessenger — Wed, 03 Feb 2010 19:09:37 -0800

Pla, OJ Simpson was found not guilty in criminal court, but liable for the same acts (with a different standard of evidence) in civil court. I don't think that's the best example to make your point here. But, I will also point out that buying, possessing or reading OJs book remains 100% legal (unlike the possession of child pornography), and by this standard, no, the Goldman family shouldn't have a dog in that particular fight. OJ did have to cough up his profits from that book to satisfy the civil judgment against him - but that's not really relevant here.

By: kid ichorous

kid ichorous — Wed, 03 Feb 2010 19:18:47 -0800

You know, I have not seen any kind of scholarship indicating that sharing CP across various distribution networks enables production of CP, or that it doesn't enable it, or that consumers of CP are more likely, or less, to create more of it, or to engage in any other crime. None. From either side.

By: scunning

scunning — Wed, 03 Feb 2010 19:23:13 -0800

Not that anyone is saying this ,but I'll just throw this out there as next week I teach tax burden in principles of microeconomics. You can tax a seller $1 per unit sold or you can tax the buyer $1 per unit sold. It has no effect at all on the burden of the tax. The tax burden is distributed over the two groups the same, regardless of who it is assigned to. What ultimately determines the burden of the tax is the shape of the supply and demand curves. So bringing that simple insight to this problem. There's no single group responsible for child pornography. Child pornography exists because there are people who can provide at low cost to themselves (but with extraordinarily high cost to others, like their nieces and unknown others) and there are people who want it. With the Internet, distribution costs are extremely small and search costs too, so the entire market has likely grown a lot, bringing in new sellers and new buyers. But by definition, child pornography has external costs - namely the victims coerced. So the right response, even from a crude economic point of view, is to raise the cost of consuming and producing it. I agree with the person who said earlier that the optimal punishment here is to tax the consumers an amount equal to the marginal harm done by their consumption. You can say the producers should be the ones who get penalized, but what we learn from simple tax theory is that the burden of the tax will be distributed over both parties in equilibrium depending on the relative elasticities. So to me, it doesn't matter who gets it - just that one of the two parties does. And it's ultimately lower cost to penalize the consumers, since it's almost always those guys that we catch with the material on their computer. Besides, the optimal punishment for crimes where the probability of detection is close to zero - which I suspect is probably the case for child pornography possession - is to have the penalty be extraordinarily high. $3.4 million only covers her damages, but the optimal penalty is probably considerably higher than that.

By: DevilsAdvocate

DevilsAdvocate — Wed, 03 Feb 2010 19:43:35 -0800

She should be demanding that her total claim be paid by EACH of those convicted of possessing an image. $3.4 million from every one of 'em. Read the final link. That is exactly what she is demanding.

Mr. Marsh contends that every defendant should be ordered to pay the full amount, under the doctrine of joint and several liability. According to that doctrine, the recipient would stop collecting money once the full damages are paid, and those held responsible for the amount could then sue others who are found culpable for contributions.... [I]n two Florida cases, judges have ordered defendants to pay nearly the full amount requested and even more. Many judges who have considered the issues award a few thousand dollars. Even though many of the defendants have no way to pay even the smallest fine, Mr. Marsh's efforts in the first year have earned $170,000 for Amy.

By: Justinian

Justinian — Wed, 03 Feb 2010 19:46:43 -0800

In child pornography, there is in no way any doubt whatsoever that what is being filmed is illegal. It's pretty clear from the get-go, not just in terms of the difficulties one must go through to get the material, but the general social environment that the viewer exists in. You'd have to be terribly impaired not to have noticed the hysteria around paedophilia. Do you think all the people who bought illegal alcohol during Prohibition should have been liable for the crimes of, say, Al Capone? Both the laws and the connection to organized crime were clear. Similar arguments could be made for the purchase of pot in the USA today.

By: Joe in Australia

Joe in Australia — Wed, 03 Feb 2010 19:48:28 -0800

I think I should emphasise that she isn't claiming civil damages in the classic sense of "you did something wrong to me, therefore I will sue you for damages". Instead she's claiming restitution under a specific US statute, 18 U.S.C. § 2259, which says that

in addition to any other civil or criminal penalty authorized by law, the court shall [...] direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim's losses [...]

The question is whether the people who disseminated the videos were jointly engaged in the crime of "disseminate nasty videos of Amy", in which case each one is jointly liable for restitution (so you can sue one, some or all of them, and leave them to apportion the blame amongst themselves) or whether they were mostly engaged in individual crimes. As one of the judges pointed out, it would be impossible to show that a certain amount of her harm was done by any particular defendant, which means that without joint liability this particular statute would be useless - ineffective. I think that reasonable people could come to different conclusions, and in fact that's what happened in different courts. I come down on the joint-liability side (partly because each of them knew that he was part of a chain of wrongdoers), but I acknowledge that it's pushing the boundaries of what we mean by a "joint criminal enterprise".

By: MikeMc

MikeMc — Wed, 03 Feb 2010 19:58:26 -0800

Just think of the ~~millions~~ billions owed to Traci Lords by the millions of men who watched her videos in the '80s. Those were CP you know...time to pay up you sick bastards.

By: StrikeTheViol

StrikeTheViol — Wed, 03 Feb 2010 20:18:14 -0800

Do you think all the people who bought illegal alcohol during Prohibition should have been liable for the crimes of, say, Al Capone? Both the laws and the connection to organized crime were clear. Similar arguments could be made for the purchase of pot in the USA today. But it's easier to say those crimes were ancillary to the crime of production, which, then and now, is of a fundamentally different nature than child pornography, which of necessity requires victimization of another person to some extent, posing questions of equity which are different than your examples.

By: Jilder

Jilder — Wed, 03 Feb 2010 20:34:18 -0800

Do you think all the people who bought illegal alcohol during Prohibition should have been liable for the crimes of, say, Al Capone? Both the laws and the connection to organized crime were clear. Similar arguments could be made for the purchase of pot in the USA today. Filming a rape is not the same thing as brewing some hooch. Unless the hops wants restitution, in which case I support your argument.

By: Jilder

Jilder — Wed, 03 Feb 2010 20:40:18 -0800

Actually, I think a clearer way to put my postion is that I don't think the owners of CP are being prosecuted for the crimes of the producers, but are being prosecuted for ongoing damages done to the child filmed by contined dissemination of the film. It's more like how the perpetrators of gun crimes are often the ones forced to pay restitution to their victims, rather than the manufacturers of those guns. The CP is the tool used to further degrade the child.

By: StrikeTheViol

StrikeTheViol — Wed, 03 Feb 2010 20:45:29 -0800

Just think of the millions billions owed to Traci Lords by the millions of men who watched her videos in the '80s. Those were CP you know...time to pay up you sick bastards. In the puritan wing of the Libertarian Party, there are those who argue that Traci and others like her consented just fine. Even so, I think it'd be really a stretch for all but the most doctrinaire anarcho-libertarian not to draw a distinction between Amy's situation and Traci's.

By: jeffburdges

jeffburdges — Wed, 03 Feb 2010 20:52:27 -0800

I am cognizant of the objections raised by Professor Turley, but individualized penalties for economic externalities have been the justification for enumerable laws, especially drug laws. I'm not sure how clear the distinction between criminal and civil remains after you've already based the laws upon externalities committed by individuals. I imagine however that this approach continues victimizing the victim, surely simply tacking a $1 billion fine onto all child porn convictions would have been legally cleaner, and more effective as a deterrent. As an aside, I am actually concerned with the whole notion of punitive damages, as they are obstacle towards our adoption of Europe's loser-pays system. Also, Jilder's link makes me happier than the original makes me sad. I'm impressed that modern people simply do not kill for the petty amusement of others, themselves perhaps, but not others.

By: PhoBWanKenobi

PhoBWanKenobi — Wed, 03 Feb 2010 20:52:49 -0800

This is a terribly sad case. But: I don't know where you'd download these kinds of videos. But wherever these are downloaded from, I suspect 'misty series' will become more popular as a search term with this publicity. After skimming the first article, I fairly reflexively googled the term. Not because I want to see child porn, but because the series isn't described even obliquely, and I'd never heard of the term. Something about the writing here makes me feel like this is supposed to be so well known that we'd all heard of it. Of course, after I googled I realized that doing so was probably a really really bad idea. But talking about something so vaguely like this is frustrating for the reader who doesn't know the history and greater context--and it's a frustration that has nothing to do with the content.

By: kid ichorous

kid ichorous — Wed, 03 Feb 2010 20:53:51 -0800

You guys know that teenagers sharing photos amongst themselves also constitutes child pornography, right? And you know that if you'd been a classmate or family member of the above, and chanced upon their Myspace page on the wrong day, you'd be a possessor on multiple counts? This discussion is being framed around a tragic corner case, but the legal implications of child pornography are vast, and sufficiently thorny that conclusions of debtor's prison for all the bad guys should probably follow after a consideration of the problem in toto. Not before.

By: kid ichorous

kid ichorous — Wed, 03 Feb 2010 21:00:48 -0800

Also, if we're talking about filesharing networks on which legal pornography is exchanged, the IAFD lists 73 industry actresses and 4 actors who have performed under the name 'Misty.'

By: BigSky

BigSky — Wed, 03 Feb 2010 21:10:23 -0800

With the exception of the mythic snuff film, ... Snopes is wrong, or at least not recently updated.

By: planet

planet — Wed, 03 Feb 2010 21:14:19 -0800

I come down on the joint-liability side (partly because each of them knew that he was part of a chain of wrongdoers), but I acknowledge that it's pushing the boundaries of what we mean by a "joint criminal enterprise".

Does this make drug users part of a "joint criminal enterprise" with drug distributors? That would be troubling.

By: planet

planet — Wed, 03 Feb 2010 21:18:01 -0800

I am cognizant of the objections raised by Professor Turley, but individualized penalties for economic externalities have been the justification for enumerable laws, especially drug laws.

I'm sure Professor Turley would agree that Congress could enact a statute requiring people convicted of possession of child pornography to pay a statutory amount to the persons depicted in the pornography. The problem is that such a statute, however sensible, does not exist. Instead, we're stuck with a statute that can't really be made to work without a rather expansive view of joint criminal liability, and one that would not easily be limited to child pornography.

By: Civil_Disobedient

Civil_Disobedient — Wed, 03 Feb 2010 21:32:01 -0800

You may feel uncomfortable thinking about such a horrible crime in this way but from a legal and societal standpoint it is important because, as Turley correctly notes, if you extend this principle in logical fashion you've just made a hell of a lot of people directly liable Wouldn't the internet provider share culpability? After all, without Time Warner/Comcast/etc enabling the capability to search & download the videos, there would be no way for the Internet Pedo to find and get copies in the first place.

By: divabat

divabat — Wed, 03 Feb 2010 21:45:58 -0800

Poor Amy. Aww. Honey. I'd offer a hug but I don't know if that would be helpful. But poor honey.

By: divabat

divabat — Wed, 03 Feb 2010 22:00:27 -0800

Is there a way for money collected from cases like these to go to a fund that supports survivors of child sexual abuse? So that people who couldn't afford or don't want to go through the court system get some help too? I keep thinking that Amy should get cheques from the State rather than "hey we found your clips" (geez! talk about mental abuse!) but that could also be seen as cashing in on the abuse, which brings up a whole other set of questions. ("Do I REALLY want to accept money from my abusers?" well then again there is this lawsuit...)

By: Joe in Australia

Joe in Australia — Wed, 03 Feb 2010 22:18:48 -0800

Does this make drug users part of a "joint criminal enterprise" with drug distributors? That would be troubling. Hehe, "joint" criminal enterprise, hehe. Sorry. This case was about restitution, not about criminal liability. The defendants wouldn't have been liable for joint punishment (e.g, 1000 years' jail divided among however many of them there were). None the less, the fact is that people who commit crimes by purchasing are also encouraging people to commit crimes by selling. Since all voluntary commercial crimes involve joint guilt, to some extent, I suppose punishment "for supporting the drug trade" must be implicitly included within the punishment for buying drugs.

By: planet

planet — Wed, 03 Feb 2010 22:27:14 -0800

This case was about restitution, not about criminal liability.

I understand that. My question is whether the joint liability doctrine applied for purposes of determining restitution is used elsewhere in the federal criminal law. For example, would a ruling for Amy affect the understanding of enterprise liability under RICO?

By: kid ichorous

kid ichorous — Wed, 03 Feb 2010 22:39:06 -0800

Do we even have any data suggesting that the possessors of CP acquire it largely through purchase or trade or some sort of meaningful interaction with the creators, rather than by leeching off of newsgroups or p2p networks?

By: jabberjaw

jabberjaw — Wed, 03 Feb 2010 22:43:38 -0800

I think what they're trying to do is some sort of equitable transfer of the copyright of the videos to the victim, thereby entitling her to compensation under copyright laws.

By: Blasdelb

Blasdelb — Wed, 03 Feb 2010 23:50:32 -0800

I can't imagine why the notifications cannot be sent to Amy's lawyer's office instead of her mailbox

By: Human Flesh

Human Flesh — Thu, 04 Feb 2010 03:29:03 -0800

Should Jackie Kennedy be able to sue people who own videos that show her late husband's head exploding?

By: tehloki

tehloki — Thu, 04 Feb 2010 05:21:02 -0800

Don't you just love it when ridiculous shit like this gets proposed and everybody pushes it right through because it's child pornography, the worst thing in the whole world, and it doesn't matter how questionable what we do in the name of fighting it is, we can't possibly look soft on this issue no sir

By: Joe in Australia

Joe in Australia — Thu, 04 Feb 2010 05:26:56 -0800

Should Jackie Kennedy be able to sue people who own videos that show her late husband's head exploding? Amy isn't suing them for pain and distress. She's suing them because they committed a crime - distributing child pornography - and the law making this illegal has a specific provision for "restitution" to the victims. In her case the restitution means therapy and so forth, and a provision for loss of earnings caused by her mental injuries. I didn't look into the details. So Jackie Kennedy may well feel injured by the fact that people watch videos of her husband's assassination, but she's out of luck unless there's a specific law providing for restitution for people injured by the illegal distribution of those videos.

By: jb

jb — Thu, 04 Feb 2010 06:22:38 -0800

So you're saying that being raped repeatedly is not one of the worst things in the world? And then to feel violated again and again by having people all over the world see this and think it's sexy? And to have this all happen when you are a little kid, and the person who has just raped you is someone you trusted and who says he loves you. That is one of the worst things in the world. There may be worse crimes that can be perpetrated, like genocide. But that involves thousands or millions of victims. As a crime against a single person, rape is way up there. In the 16th century, it was thought to be in the same category as murder, arson (which in those days of wooden cities could often be mass-murder) and treason. I'm no puritan -- I like pornography. I'm not even sure where I stand on the depiction of under-18s in works of the imagination alone, like texts or drawings. And I certainly think laws against taking pictures of your kids in the bath or a 15 year old emailing a picture of her breasts to her boyfriend are stupid (okay, doing that second thing is also stupid, but being simply dumb shouldn't be illegal). But we're not talking about that here. We are talking about images of an actual child being molested and raped. And that is one of the most horrific things which can happen to a person. It is more horrific than witnessing your husband's head being shot. I'm sure that Mrs Kennedy had a terrible experience, but it was not as bad as years of childhood abuse. And sexual abuse is worse than physical. Physical and emotional abuse is bad, but there is just something about sex that strips humans very raw. Between two loving adults, that rawness is wonderous -- but abused it can be twisted into something horrific. Even adults feel the trauma -- to implant that on a child is just about the worst thing I can think of one person doing to another person -- and I have a very vivid imagination.

By: muddgirl

muddgirl — Thu, 04 Feb 2010 07:42:19 -0800

I'd guess she, for her own well being, should stop doing what she's doing now as well. You're not her psychologist, her friends or family, or her lawyer. I'd guess you should stop assuming that you know the One True Path to recovery.

By: Human Flesh

Human Flesh — Thu, 04 Feb 2010 07:47:53 -0800

Could an enterprising pair of minors record themselves having sex, surreptitiously upload the videos to file sharing networks, then sue anyone caught with the illegal files on their hard drives?

By: delmoi

delmoi — Thu, 04 Feb 2010 08:53:28 -0800

Filming a rape is not the same thing as brewing some hooch. Unless the hops wants restitution, in which case I support your argument. Well, while you feel that way the only argument in this thread for liability was that "They knew it was illegal, screw 'em", which is also true of alcohol consumers during prohibition and drug users today. What's the legal difference? If this were established as precedent, what would prevent it from applying to all illegal behavior that depends on other illegal behavior down the line? Just because you find one activity "really illegal" doesn't really change anything.

So you're saying that being raped repeatedly is not one of the worst things in the world?

No one is saying it's not the "the worst thing in the world" But things are either illegal or not. The question is about liability for all illegal things, not just this one.

By: zarq

zarq — Thu, 04 Feb 2010 08:58:24 -0800

They do deal with the consequences of their actions; they go to jail, for a very long time. It's not like these people are getting off scot-free if they don't have to pay her restitution. The question isn't, "should we punish people for possessing child pornography." Acting like the issue is whether or not these people should be punished confuses the actual question. I spent a lot of time thinking about this overnight, reading the comments here and Professor Turley's entries. I regret commenting in anger yesterday. As much as I'd like to see those who create, distribute or collect child pornography punished, it should be done within the bounds of law, with reasonable, just penalties. There is a perception that possessing child pornography does not harm the child who was abused. I think we're seeing here that this is not necessarily true. Something to be aware of: Federal law (US CODE Title 18, 2252A) already allows those depicted in child pornography to sue people trafficking their images and videos for restitution. See section F, here. The Missouri AG is now backing a plan to increase the potential damages, which would allow the victims of child pornography to sue those who possess their pictures or videos for up to $150,000 for restitution. Child pornography victims could sue anyone convicted of producing, promoting or possessing their sexual images for at least $150,000 in damages under a proposal backed by the Missouri attorney general. The legislation, which could be sent to a Senate committee this week, is intended raise the financial stakes for the purveyors of child pornography while giving private law firms an incentive to help crack down on the industry. "Possession and promotion of child pornography is often considered a victimless crime because it's an image being distributed," said Joan Gummels, the legislative director for Missouri Attorney General Chris Koster. "But every image in child pornography portrays a victim. "The bill is an attempt to give that victim a voice against the perpetrator of the crime," Gummels added. Koster's office said the measure is modeled after a 2008 Florida law, which was promoted by that state's attorney general as a first-of-its-kind for state courts. A 2006 federal law raised the minimum amount of financial damages that child pornography victims can receive in federal court from $50,000 to $150,000.

By: sio42

sio42 — Thu, 04 Feb 2010 09:16:23 -0800

while i am all for those who knowingly downloaded CP to be prosecuted and given harsh penalties, as well as those who abuse children sexually and otherwise, i am concerned that a blanket "OMG $3M" penalty would end up catching up people who were not guilty. i cannot search for it now as i am at work, but i'm fairly certain there have been a number of news stories about virues and/or hackers downloading CP onto people's computers and those people end up being busted and never had any idea it was on there. unfortunately, some people are very computer-idiot. they might never notice all the background stuff going on in their computer.

By: PhoBWanKenobi

PhoBWanKenobi — Thu, 04 Feb 2010 09:19:24 -0800

We are talking about images of an actual child being molested and raped. And that is one of the most horrific things which can happen to a person. It is more horrific than witnessing your husband's head being shot. I'm sure that Mrs Kennedy had a terrible experience, but it was not as bad as years of childhood abuse. This is so over the top. I'm not sure we can judge how horrible it is to hold the bullet-blasted head of your spouse in your lap. I'd posit that this is a poor--no, impossible--comparison.

By: PhoBWanKenobi

PhoBWanKenobi — Thu, 04 Feb 2010 09:21:18 -0800

(And it seems to me that the example was original raised as a way to tease out the legalities of the situation--not to start an oppression olympics.)

By: zarq

zarq — Thu, 04 Feb 2010 09:39:12 -0800

i cannot search for it now as i am at work, but i'm fairly certain there have been a number of news stories about virues and/or hackers downloading CP onto people's computers and those people end up being busted and never had any idea it was on there. CBS News - Child Porn Virus. Threat or Bad Defense?

By: palliser

palliser — Thu, 04 Feb 2010 12:27:28 -0800

I don't get being okay with someone going to jail for something, but not with their paying restitution for it. The latter is too much personal responsibility, while the former is just enough? They're both provided for in the law.

By: Joe in Australia

Joe in Australia — Thu, 04 Feb 2010 13:17:44 -0800

Could an enterprising pair of minors record themselves having sex, surreptitiously upload the videos to file sharing networks, then sue anyone caught with the illegal files on their hard drives? They would be committing a felony by doing this, but so would the people viewing or distributing the file. I think their lawyer would argue that they are still injured by the distribution of the video, even though they were stupid enough to produce it themselves, and that they are entitled to restitution for the damage. Of course, you would need to convince a judge and/or jury that they were actually damaged - this is very different to Amy's case. This may not be a theoretical question. I vaguely recall that one or more people who were apparently willing to be in mainstream porn films when they were minors (say, 16 or 17) regretted it later. I can't see why they wouldn't be able to claim restitution if they can show damage, unless the statute explicitly rules it out.

By: Smedleyman

Smedleyman — Thu, 04 Feb 2010 13:25:18 -0800

"Which is why you have to give scumsucking bottom feeding child pornographers the same benefit of good law as everyone else. Not to protect them, but to protect us." Yeah, I have to agree. Doesn't mean I'm going to finish my lunch today though.

By: zarq

zarq — Thu, 04 Feb 2010 14:13:27 -0800

This may not be a theoretical question. I vaguely recall that one or more people who were apparently willing to be in mainstream porn films when they were minors (say, 16 or 17) regretted it later. I can't see why they wouldn't be able to claim restitution if they can show damage, unless the statute explicitly rules it out. Possibly Brent Corrigan? This isn't exactly on topic, but I remember reading about a case a while back where someone was on trial for possession of what appeared to be child pornography, but the video in question turned out to be of a very young-looking professional porn star named Melissa Bertsch (stage name Melissa Ashley.) She gave testimony that eventually exonerated the defendant. According to Wikipedia, she's done this several times. Obviously, that's a different situation than the focus of this FPP. But I find it a little disturbing that someone could own legal porn and still be accused of possessing child pornography.

By: aeschenkarnos

aeschenkarnos — Thu, 04 Feb 2010 14:51:17 -0800

zarq But I find it a little disturbing that someone could own legal porn and still be accused of possessing child pornography. Oh, it gets a lot more stupid than that. Fortunately, the story isn't true - but as censorship in Australia is a regulatory rather than legislative matter there's nothing other than common sense stopping it from becoming true, and without meaning to be too chauvinistic about my nation, there are a lot of places around the world where common sense is in even shorter supply.

By: Jilder

Jilder — Thu, 04 Feb 2010 18:04:35 -0800

Well, while you feel that way the only argument in this thread for liability was that "They knew it was illegal, screw 'em", which is also true of alcohol consumers during prohibition and drug users today. What's the legal difference? The difference is that the illegal product being consumed is not a person with legal rights. My comment about the hops wanting restitution was a bit glib, but it frames the point of my argument. My argument is not that the people possessing and distribute it know that it's a criminal act, but they do so with the knowledge that further distributing it continues to victimise an actual, living human being who still has to deal with the fallout from her abuse. Prohibition failed because it was essentially a victimless crime, and I suspect many years from now we may have a similar view to drug use. Furthermore, we're talking restitution here - which occurs after the crime of owning CP itself has been tried, and the offender sentanced. This is pretty much on par with the fines that are often levvied for other civil offenses, with the only notable difference being that the funds go to the child who was in the film, not a civil body. If this were established as precedent, what would prevent it from applying to all illegal behavior that depends on other illegal behavior down the line? It would depend on ongoing damages, I imagine. Amy continues to be harmed by the distribution of these images. On the other hand, once someone has fenced your stolen stereo, there's a limit to how much further damage can be done. I see this as not being applied to illegal behaviour stemming from illegal behaviour; rather the ongoing distribution of the images are a crime in their own right.

By: Joe in Australia

Joe in Australia — Thu, 04 Feb 2010 19:40:58 -0800

I find it a little disturbing that someone could own legal porn and still be accused of possessing child pornography. But of course they can. You can be accused of anything. You're just surprised it got to court. Based on this article, I take it that this is what happened: Kelly Hoose, who must have the IQ of an aspirin, rings the police to complain that the porn he is downloading has pictures of underage girls. The police officer, who is very properly trained to detect crime, hears that Mr Hoose is downloading pictures of underage girls. Mr Hoose gets arrested, and an expert decides that 37 of the images depict underage girls. Now, Mr Hoose's solicitor notices a copyright notice on 34 of the images that says they come from a particular company called ALS Scans. He contacts the company and gets an affidavit that the girls were over 18. So, should the prosecution have proceded? Yes. Absolutely. Mr Hoose may have had the brain of a chipmunk, but how are the police to know that he didn't collude with ALS to defend himself? For that matter, how are they to know that ALS isn't a criminal enterprise? After all, Mr Hoose himself apparently thought they were distributing child pornography. And that still leaves three of the 37 which did not come from ALS, although one of these was not deemed to be sufficiently pornographic. Anyway, you can see that this is the sort of thing that can only be resolved in court. You need witnesses, affidavits, all sorts of things. So yes, Mr Hoose got acquitted, no thanks to him, but that doesn't mean that the prosecution was wrong. If you have laws against child pornography then they have to be enforced, and the whole point of a court system is that it sorts the guilty from the innocent. Rah rah the courts. Incidentally, I think these pictures would still be illegal in (some parts of?) Australia, because sexualised depictions of people under 18 are illegal. Which is why someone got convicted for possessing a picture of Lisa Simpson engaged in a sexual activity.

By: kid ichorous

kid ichorous — Thu, 04 Feb 2010 20:34:49 -0800

I don't get being okay with someone going to jail for something, but not with their paying restitution for it. They're not only going to jail. They're going to jail as the single demographic most targeted for rape and other abuse. And, depending on their state of residence, when their time is served they can still be classified as a Sexually Dangerous Person, and institutionalized will until the public deems them cured. Upon release, they will carry the red letter of Sex Offender for the rest of their lives, and will have to find whatever work and residence they can on the periphery of our society. And onto all of this we now consider attaching an impossible six- or seven-figure dollar civil penalty that will almost certainly not fall upon them alone, but their entire household. Their wives. Their families. Someone upthread urged the summary bullet in the head, and I think that would be less unkind. It is interesting to me that we have created consequences for looking at the wrong thing that rival the mythological Basilisk or Medusa.

By: Amanojaku

Amanojaku — Thu, 04 Feb 2010 22:37:55 -0800

BigSky: I don't think that's quite correct. A snuff film is porn, where the actor or actress is also killed. I didn't see any reference to sex acts in the crimes you linked to.

By: palliser

palliser — Fri, 05 Feb 2010 05:15:41 -0800

It is interesting to me that we have created consequences for looking at the wrong thing that rival the mythological Basilisk or Medusa. Your argument is against the entire structure of criminal punishment for possessors of child pornography. Which is basically what I was pointing out: if jail is appropriate, why not restitution? I suppose if you think of possessing child pornography as "looking at the wrong thing," as opposed to taking into your possession pictures of children performing sex acts and thereby participating in the enterprise that forced sex acts upon children, you would think all this punishment a bit much. I think it's important to sort out actual consumers of child pornography from people who take into their possession nude pictures of children for other reasons (and I know unjust accusations of this crime take place, check out my one and only FPP), but once you've exercised some common sense on the front end, I think both jail time and restitution are perfectly reasonable, and they are imposed for all kinds of other crimes.

By: Human Flesh

Human Flesh — Fri, 05 Feb 2010 06:34:13 -0800

They would be committing a felony by doing this, but so would the people viewing or distributing the file. I think their lawyer would argue that they are still injured by the distribution of the video, even though they were stupid enough to produce it themselves, and that they are entitled to restitution for the damage. Like Linda Lovelace, our hypothetical entrepreneurs could claim that they were forced at gunpoint to participate. I assume this could absolve them from guilt. They could make a lot of money if they found a way to get lots of people to download copies of their film. The ubiquity of the proposed contraband could be accomplished with the right software, deceptive file naming, or via the genuine popularity of the video. I suppose there's a perverse incentive to feign damages in order to claim restitution in many fields. However, it would undermine my credibility if I were to file for worker's compensation at every job I took. An illegal video would have no such limits. With sufficient distribution, our prospective blockbuster could draw restitution funds from thousands of sources without impugning the credibility of the claimants.

By: kid ichorous

kid ichorous — Fri, 05 Feb 2010 07:33:06 -0800

"looking at the wrong thing," as opposed to taking into your possession pictures of children performing sex acts and thereby participating in the enterprise that forced sex acts upon children But that's the problem, and put neatly. Laws that criminalize the bits in a browser's cache do not seem to address any kind of meaningful cooperation in an act of rape. They can proceed even its total absence. And so "looking at the wrong thing" is my admittedly blunt reading of a public strategy that is itself blunt. Some of our laws are by all appearances interested in the act of looking, and turn on such abstract ideas of possession and of child that we are able to prosecute sixteen-year-olds for taking pictures of themselves, or (Aussie rules) jail a man for drawing a cartoon.

By: kid ichorous

kid ichorous — Fri, 05 Feb 2010 07:54:14 -0800

And not to retread over the Daniel Pearl argument, but how could we determine culpability in, say, an act of terrorism, by doing nothing but sifting through cached browser images of the act, and not by looking for some kind of financial or logistical support for the act? I'm not saying that these two problems are identical, but there does seem to be great symmetry.

By: BigSky

BigSky — Fri, 05 Feb 2010 11:37:31 -0800

I don't think that's quite correct. A snuff film is porn, where the actor or actress is also killed. I didn't see any reference to sex acts in the crimes you linked to. Snuff videos are typically defined as a killing filmed for purposes of distribution and entertainment, sex acts are not an essential element. I'm not going to argue with calling it porn, that's how I think of it too. But it's a loose usage of the word. It was never established that the Dnepropetrovsk maniacs were intending to distribute their videos, but it seems clear that they were shot for their own amusement, just like a lot of couples' private sex tapes.