A man who viewed child pornography does not need to pool damages with other offenders to provide restitution for the trauma such images have wrought on their subject, the 2nd Circuit ruled Monday.
A woman identified in court only as "Amy" has become the face of the nationwide trend of ordering those convicted of child pornography possession to pay restitution to the victims depicted in those images.
The National Center for Missing and Exploited Children has reported finding at least 35,000 "extremely graphic" images of Amy's abuse at the hands of her uncle among the evidence in more than 3,200 child pornography cases since 1998. With each new case, Amy receives government notification under the Crime Victims' Rights Act. She says the alerts revive the trauma of her abuse.
Her lawyer James Marsh used the notices to intervene in court cases throughout the country, claiming that the men who viewed her images should be made to pay for her psychiatric treatment and future damages, estimated at $3.4 million.
The 2nd Circuit noted that 113 people have been held liable for such damages to Amy nationwide, though the 5th Circuit put that number at 174 last year.
There is no uniform standard for awarding restitution in such cases, but the Supreme Court indicated in July that it would provide such a standard by answering "what, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution" pursuant to the statute.
The 2nd Circuit chimed in on the issue Monday, reducing the damage amount that child pornography offender Avery Lundquist owed Amy for possessing an image of her abuse.
"We conclude that the district court did not abuse its discretion in finding that Lundquist proximately caused some portion of Amy's losses," Judge Denny Chin wrote for a unanimous three-judge panel. "The original 2008 Report explains that notifications about new possessors like Lundquist are 'ongoing triggers' for Amy, which cause her problems in the areas of '[m]ood regulation, cognitive distortions, feelings of shame, self-blame, and guilt, self-esteem, alcohol abuse, dissociation, academic progress, interpersonal relationships, and vocational success.'"
The appellate judges nevertheless ordered U.S. District Judge Glenn Suddaby to reduce the $29,754.19 proximate loss award, which they said included damages from before the time of Lundquist's offense.
Significantly, the 47-page opinion also vacates the finding of "joint and several liability" against Lundquist, which would have forced him to contribute with the other offenders to Amy's roughly $3.4 million tab.
Even prosecutors agreed that there was "no legal justification" for such a finding, the 47-page ruling notes.
"The evidence shows that Lundquist contributed to Amy's losses, but there is no evidence that he has caused all of her losses," Chin wrote (emphasis in original). "Indeed, Amy's losses exceed $3 million primarily because there are so many people viewing her images on the Internet. These circumstances make it unclear when, or if, she will ever obtain the necessary 'sense of safety that the trauma is over and that the past will not be replayed in the present,' which is essential to recovery. If Lundquist were the only person who had downloaded images of the abuse Amy suffered, his arrest might provide her with that feeling of safety. Unfortunately, he is not alone."
Amy's attorney James Marsh said that he would respond after viewing the decision.
Corey Yung, an expert in sex crimes who teaches at University of Kansas School of Law, doubted whether the ruling will factor into the case currently before the Supreme Court.
"The 2nd Circuit opinion helps to illustrate the inevitable difficulties with a restitution system without a causation requirement," Yung said in an email. "So, to that degree, it might encourage the court to either avoid resolving the issue or find a causation requirement. Otherwise, there are going to be more cases with 'Amy' and other victims where each trial judge has to put a dollar amount on a harm without any clear guidance." ..Source.. by ADAM KLASFELD
If "notifications about new possessors like Lundquist are 'ongoing triggers' for Amy," it begs the question why the government continues to notify her of these discoveries. Perhaps she should sue the government! I see NO value at all in these notifications and obviously, they continue to aggravate the victim's trauma.
ReplyDeleteHow many more will step up to the plate and cry wolf , for a judges ruling dollar amount ? Judges like that get a percentage . Time to learn the real law's of juditional finance and direction of pay , from who , and from where . The IRS . Wants to know all nonprofits involved . Time for the justices to be challenged . Fair law is not retro law . With camaras on every street corner , from transportation , parking lots , private homes or business . That includes work for the time served . All Judges names should be reveiled in any case judgement , reguardless , of sex , or political party and years on the bench .
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