In our opinion: Child porn convicts should be made to pay dearly

Published: Saturday, Jan. 25 2014 12:00 a.m. MST

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A case before the U.S. Supreme Court has raised the issue of how much restitution should be paid to a victim of child pornography by any individual who is convicted of possessing images of the abuse. While the case may deal with the parameters of fairness and consistency in criminal sentencing, there should be no dispute over the fact that punishment for such crimes should be as strict and meaningful as the law can possibly allow.

The case involves the sexual abuse of a woman when she was 8 and 9 years old by her uncle. Pornographic photographs of the abuse have since circulated among thousands of online viewers. A federal appeals court upheld an order by a lower court to require a man convicted of possessing those images to pay the full amount of restitution assessed in the case – about $3.4 million.

A 1994 federal law allows victims of child pornography to receive restitution for lost income, counseling and legal fees. Justices have heard arguments from the man’s legal team that it was not the intent of the law to have restitution awards multiplied as a result of separate convictions of individual offenders.

The counter-argument, presented on behalf of the victim by Paul Cassell, a University of Utah law professor, is that the law intends to make it easier for victims to receive restitution from all persons convicted of crimes that stemmed from the original abuse, and does not place a statutory limit on how much any victim may receive in the aggregate.

In this case, the victim, now 20 years old and known in court records as “Amy,” has received about $1.7 million in restitution payments from defendants in nearly 200 separate cases. In comments during oral arguments, justices were clearly grappling with the question of how or if restitution might be apportioned among various convicted persons.

It seems Congress may not have clearly addressed the possibility that overlapping restitution orders could result in an aggregate award to a victim that far exceeds what any individual court may have assessed. As such, the Supreme Court may rule that additional structure to the restitution law is needed. A lawyer for the Justice Department pointed out that the matter has already been referred to the U.S. Sentencing Commission for guidance on establishing an appropriate formula for individual courts to follow.

That appears to be a reasonable course toward a solution, but it is critical that the original premise of the legislation be retained — that victims of such crimes are able to be properly and expeditiously compensated. A second premise is equally critical — that those who indulge in child pornography face severe and lasting punishment. As such, any revisions to the law should not lead to allowing anyone convicted of such crimes to avoid a financial responsibility simply because others already have paid.

As in civil law, it may be appropriate for the government to establish a mechanism for punitive damages in such cases. A possibility may be establishment of a fund dedicated to supporting child abuse enforcement and prevention efforts, as a receptacle for restitution payments beyond the amounts assessed to compensate individual victims.

The scope of the problem of child pornography on the Internet demands that all that can be done to punish its purveyors and consumers is done — and that should include financial penalties as well as lengthy incarceration.

The damage done to child abuse victims never can be completely undone. They deserve compassion and proper compensation, while the larger community deserves a system that offers an auspicious level of deterrence to those who would contemplate such unconscionable behavior.

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