Paroline Raises Difficult Questions for Supreme Court

JURIST Guest Columnist Warren Binford of Willamette University College of Law argues that the US Supreme Court should hold individual possessors of child pornography liable for the full damages allowed under the Violence Against Women Act first to help victims of child pornography recover as quickly and fully as possible and to uphold US international treaty obligations ...
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On January 22, 2014, the US Supreme Court heard oral argument in what promises to be one of the most difficult decisions of this term, Paroline v. United States (PDF). At issue is the amount of restitution owed to victims of child pornography by offenders guilty of possession.
According to the attorney for Doyle Paroline, the offender in this case, the restitution amount should be nothing. The attorney for the victim argued that Paroline should be ordered to pay the full amount of the victim's losses, and the US Solicitor General maintained that the amount should be somewhere in between, but was unable to identify a reliable formula to guide courts.

The case arose from the US Court of Appeals for the Fifth Circuit interpretation of 18 U.S.C. § 2259, a 1994 law passed as part of the Violence Against Women Act ("VAWA") that mandates full restitution for victims of certain federal sex crimes, including possession of child pornography. The mandatory restitution statute includes six categories of potential losses for a victim, including (A) health services; (B) rehabilitation; (C) transportation, temporary housing, and child care expenses; (D) lost income; (E) attorneys' fees and costs; and (F) "any other losses suffered by the victim as a proximate result of the offense."

The Fifth Circuit read the phrase "as a proximate result of the offense" to apply only to the sixth "catchall" category of losses. Every other circuit court that has interpreted the statute reads the phrase to apply to all six categories of potential losses.

A significant amount of ink in the parties' briefs was devoted to canons of statutory construction such as the rule of the last antecedent, distinctions of usage between commas versus semi-colons, and the application of Porto Rico Railway, Light & Power Co. v. Mor. Despite the statute's express language and orderly punctuation, even the most well-recognized grammarian among the justices, Antonin Scalia, looked his former law clerk, Paul Cassell (who was representing the victim, "Amy," in this case), squarely in the eye during oral argument and insisted that Congress could not have intended "to sock" Paroline with all of Amy's losses. After all, Paroline possessed only two images of Amy being raped by her uncle, and Amy's estimated total damages are nearly $3.4 million. Sure, Paroline is a "bad guy," Scalia acknowledged, and of course, he should be punished and ordered to pay restitution, but $3.4 million for possessing two child sex abuse images?

Without a moment of hesitation, Cassell assured the court that indeed, Congress intended precisely that result. In support of Amy's position, Cassell relied on the plain language of the statute, which mandates that a court "shall order restitution for any offense under this chapter" and "the order of restitution ... shall direct the defendant to pay the victim ... the full amount of the victim's losses ..." (emphasis added). Amy's attorney also relied on the legislative history of the statute, which was summarized (PDF) in an amicus brief submitted by a bipartisan group of seven US senators who served in the 103rd Congress and supported VAWA. The legislative history presented by the US senators also supports a plain reading of the statute.

Why would Congress have enacted such an aggressive restitution statute and why should the US Supreme Court uphold the Fifth Circuit's plain reading of the statute? Modern child pornography is expanding at an explosive rate. The invention of the Internet and the digitalization of images have made modern child pornography a crime without borders that continues victimization indefinitely for countless children. Now, anyone with a smartphone and access to a child can become a producer of child pornography and anyone with Internet access is a potential consumer and distributor of sex abuse images.

As a result, millions of individuals all over the globe are viewing more than fifteen million sex abuse images of children in an international market valued between three and twenty billion dollars annually. As the world's appetite for sex abuse images of children grows, the victims selected are increasingly younger and the acts more violent, according to amici in Paroline.

Even prior to the widespread digitalization of sex abuse images and global Internet access, the US Supreme Court recognized in Osborne v. Ohio, that the insidious nature of child pornography possession takes a heavy toll on its victims: "[t]he pornography's continued existence causes the child victim's continuing harm by haunting the children in years to come."

In this case, Paroline is just one of at least 70,000 people who have collected images of Amy's rape as a child. Unfortunately, Amy was not his only victim. He had hundreds of child sex abuse images in his possession, and pled guilty to the federal crime of possession of child exploitation materials. What the court record does not reveal, but the media did, is that, at the time of his arrest, Paroline was in the final stages of adopting two young sisters, one of whom had previously been sexually abused.

As with all identified child pornography victims whose sex abuse images are in the National Child Victim Identification Program database, Amy receives a legal notice each time one of her sex abuse images is found in the collection of another offender. These notices arrive every day, all year long, year after year. Amy has arranged for the notices to be sent to her attorney rather than her directly. However, experts have advised trial courts that Amy's awareness of the continuous consumption of her child sex abuse images by countless people all around the globe will impact her for the rest of her life. Amy's losses primarily result from psychological care and lost wages, and will amount to several million dollars over her lifetime.

Did Paroline cause Amy's losses? He at least contributed to them, according to Amy's attorney, along with the countless other offenders involved in the production, distribution, and collection of images showing her rape as a child. Together, this group of offenders is indivisible and ever-expanding. Collectively, they caused and continue to perpetuate Amy's harm, which is also indivisible. Amy's significant psychological harm endures simultaneous with her continuing victimization, and cannot be disaggregated among the producer, distributors, and possessors of her child sex abuse images. If Paroline thinks they can be aggregated, it is he and the other offenders who should bear the burden of disaggregation, maintains Amy's attorney, not the child sex abuse victim.

What about those who cannot pay? Ultimately, the statutory scheme limits recovery from each offender in accordance with his income and assets, and many offenders are judgment proof. Thus, each offender will be liable for the entire amount of Amy's losses, but will only pay according to his ability. For those whose wealth allows them to pay a greater share, their equitable shares should be addressed by allowing them to recover contributions from other offenders; not by limiting the ability of child pornography victims to recover restitution fully and quickly from the convicted child pornographers who have victimized them.

The Fifth Circuit's plain reading of the mandatory restitution statute also should be upheld because it is consistent with the US's treaty obligations and compliance reports. Unfortunately, the US is the leading source country for both child pornography victims and offenders in the global market. Fortunately, the US has taken a leading role in the global effort to combat child pornography through the development of an international legal framework that recognizes child victims' rights to restoration and supports more robust cross-border enforcement mechanisms through entities such as Interpol.

The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography is the cornerstone treaty focused on child victims of sex abuse within this international legal framework. The US was a leader in drafting the treaty and promptly ratified it. The Optional Protocol expressly provides for victim recovery from offenders, and the US State Department has repeatedly relied on the mandatory restitution statute to support US compliance with the treaty in reports to the UN Committee on the Rights of the Child, which serves as the treaty's monitoring body.

The US needs to maintain its leadership in the international community not simply by fighting child pornography aggressively both domestically and abroad, but also by ensuring that victims are restored promptly and fully. A plain reading of 18 U.S.C. § 2259 will accomplish both goals. The US Supreme Court should uphold the Fifth Circuit's interpretation of the mandatory restitution statute ordering Paroline to pay his victim the full amount of her losses.


Warren Binford is an Associate Professor of Law and Director of the Clinical Law Program at Willamette University College of Law where she also teaches International Children's Rights. She filed an amicus brief on behalf of the Dutch National Rapporteur on Human Trafficking and Sexual Violence against Children in Paroline v. US.

Suggested Citation: Warren Binford, Paroline Raises Difficult Questions for Supreme Court, JURIST - Forum, Feb. 27, 2014, http://jurist.org/forum/2014/02/warren-binford-paroline-supreme.php


This article was prepared for publication by Emily Kinkead, assistant editor in JURIST's Commentary service. Please direct any questions or comments to her at academiccommentary@jurist.org

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