Texas judge refuses bid to make child porn users pay damages

A federal judge has refused to order a Texas man to pay nearly $3.4 million in restitution to a girl depicted in photos of child pornography he downloaded from the Internet.

Doyle Randall Paroline did not know the girl whose picture he downloaded, and she knows nothing of him. But prosecutors urged the judge to order Mr. Paroline to pay full restitution for her injuries, including her sexual abuse by an uncle 12 years ago and the continued traffic in her photos on the web.

Paroline has been sentenced to serve two years in federal prison for possession of child pornography.

The Paroline restitution case in Tyler, Texas, was seen as an important test of a tough anti-child pornography law in which federal prosecutors were seeking to impose the same high level of restitution on those found in possession of child pornography as would be imposed against those who physically abused a child, photographed the abuse, and distributed the images.

Prosecutors argued that the injury to the girl was ongoing as a result of those who continue to download images of her abuse.

The judge agreed that the abuse was ongoing, but he decided that it did not justify holding a defendant in a possession case to the same level of financial responsibility as an individual who carried out the physical abuse and created the child pornography.

US District Judge Leonard Davis ruled on Monday that the government had failed to prove the precise nature of the injuries caused by the man's possession of two images of the girl.

Tough child pornography laws

Paroline admitted knowingly possessing on his computers more than 150 images of minors engaged in sexually explicit conduct. An analysis of those photos by the National Center for Missing and Exploited Children identified a girl referred to as "Amy."

Amy is a pseudonym for a girl who was abused and photographed by her uncle when she was eight and nine years old. Today she is 20, yet images of her abuse are still circulating on the Internet.

In an effort to dry up a thriving international market in child pornography, Congress established tough sentences not only for production of such outlawed images but also possession of them. The idea is that those who view and trade in images of child sexual exploitation are themselves participating in that exploitation by sustaining a demand for it.

Congress did not stop there. The law includes a provision for mandatory payment of "the full amount of the victim's losses" without regard to the economic circumstances of the defendant or whether the victim has received or might receive compensation from other sources.

Thus, federal prosecutors sought $3,367,854 in restitution from Paroline – the full amount of compensation for Amy's earlier sexual abuse and the ongoing traffic in her images.

Judge Davis said it was too much. An order requiring Paroline to pay Amy the entire estimated restitution would violate the Eighth Amendment's prohibition on excessive punishments, the judge said in an 18-page opinion.

Instead, he said, the government must show which portion of Amy's injuries were proximately caused by Paroline's possession of the two photos. He said since the government was unable to precisely prove that issue, he would not order payment of restitution.

"Restitution in possession cases is an issue of first impression in district courts around the nation as the government has only recently begun seeking restitution from possessors of child pornography on behalf of victims," Davis said.

"The losses described in Amy's [expert] reports are generalized and caused by her initial abuse as well as the general existence and dissemination of her pornographic images," the judge said. "No effort has been made to show the portion of these losses specifically caused by Paroline's possession of Amy's two images."

A federal judge in Maine recently reached the same conclusion, refusing to order restitution after finding that the government had failed to prove a particular loss to Amy by that defendant's possession of her photo.

Differing approaches

Other courts have taken a different approach. Two federal judges in Florida have ordered two different defendants in that state to pay Amy restitution of nearly $3.3 million and $3.7 million. A federal judge in California ordered payment of $5,000 in restitution to Amy.

Amy's lawyer, James Marsh of New York, has filed 250 restitution requests on her behalf in child pornography cases across the country. He said he was disappointed in Judge Davis's ruling.

"The court's decision is a serious set-back for victims of child pornography like Amy in their effort to obtain just and timely restitution for the ongoing crimes perpetrated against them," Mr. Marsh said in a written statement.

"How can we, as a country, justify awarding tens of thousands of dollars in damages to record companies for downloading a single song, while criminals who exploit children pay nothing," he said.

Marsh says it is now up to Congress, the Fifth US Circuit Court of Appeals, and the US Supreme Court to take up the issue.

See also:

A bold gambit to reduce demand for child porn

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