VA- Victim of child porn seeks damages from viewers

11-6-2009 Virginia:

Misty is all grown up now.

She goes by Amy these days, but even that's not her real name. So fearful of being outed as the "star" of the Misty child pornography series, she keeps her true identity a closely guarded secret.

The Misty series is one of the most popular and readily available kiddie porn videos on the Internet. It's considered a collector's item among pedophiles. Downloading it is a felony.

Amy, now 20, remains traumatized by the crimes but became devastated upon learning they have been distributed worldwide. Officials have identified 750 individuals who possess the Misty series, but they believe tens of thousands of copies are out there.

In a novel approach to getting help, she and an attorney have begun petitioning federal courts for restitution against anyone convicted of possessing the Misty series.

Raymond Highsmith, a former Shriner from Virginia Beach convicted of downloading the videos, is one such defendant.

The Violence Against Women Act of 1994 includes a section requiring restitution for victims of sex crimes. Whether that extends to defendants convicted of downloading and viewing child pornography remains a hotly contested question across the country. Some judges have awarded Amy millions; others have given her nothing.

Amy, who lives in the Northeast, seeks restitution for physical, psychiatric and psychological care, occupational therapy, transportation, housing, child care, lost income, attorneys' fees and other losses that might result from the crimes that have occurred.

She has described her horror in a letter to courts where she is seeking restitution.

A trusted uncle who was left to watch Amy began raping her when she was 8. He told her she was special, that he loved her and that they had their own special secrets.

He would buy her favorite snack, beef jerky, and give her rides on his motorcycle. Today, she can't eat beef jerky without feeling panic, guilt and humiliation, and she'll never ride a motorcycle again.

For more than a year, the uncle videotaped varied sex acts. He forced the girl to perform sex telephone calls and Internet chats with other men, and he even took her to a secluded wooded area to meet with other pedophiles.

When her parents discovered what was happening, the uncle was arrested and Amy was put in therapy. She had repeated nightmares, waking up crying and in cold sweats. She would dream her uncle was getting out of jail and coming to get her.

Amy seemed to respond well to the therapy, but as she grew into a teenager, she hid an "underlying fragility" with feelings of mistrust, anger and guilt under a "seemingly strong facade," Joyanna Silberg, her adult psychologist, wrote in a detailed report on Amy's condition.

At 16, Amy began drinking heavily and that grew worse when, at 17, she learned that the "Misty" images had been sent around the world over the Internet. She sought help, got herself under control and headed off to college.

But she had trouble paying attention and making it to class. She had a breakdown after seeing a movie on abused children in a psychology class and dropped out of school.

Today, she suffers from severe post-traumatic stress disorder. Victims of child sexual abuse are more resistant to treatment than victims of other types of PTSD, Silberg wrote. Amy is trapped in feelings of being dirty and shamed.

"Amy faces a long and difficult course of treatment," Silberg wrote in her report.

"Feelings of shame and humiliation are multiplied exponentially for victims of Internet child pornography," she continued. And knowing the images are out there "interferes significantly with the therapeutic resolution of these problems."

She lives in fear that if one of her friends "Googles" her name, the pictures might pop up. She knows that those abusive images will always be on the Internet.

"I don't want to be there, but I have to be there and it's never going away, and that's a scary thought," she said in a letter filed with several courts where she sought restitution.

"It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it," she wrote.

"It's like I am being abused over and over and over again."

Even though the restitution law has been on the books for 15 years, no one tried to collect from defendants who downloaded and viewed the videos until this year. Those who produced the videos, such as Amy's uncle, have long been held accountable for payments to the victims.

Only recently has the Department of Justice begun notifying victims such as Amy by letter that they could be entitled to restitution. More than 2,600 child victims have been positively identified.

Amy and another victim who was brutalized on film, in what's known as the "Vicky" series, began filing requests for restitution earlier this year.

In 20 cases, they have had mixed results. A federal judge in Florida ordered a defendant to pay Amy $3.2 million, nearly the full amount she sought based on estimates for lost wages and mental health treatment for the rest of her life, but that case is on appeal. Even if she wins, the defendant, James Freeman, is serving a 50-year prison term and has few assets.

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.

Another judge in Florida awarded Amy her full $3.6 million request, but that case is also on appeal. Most judges awarded Amy and Vicky minimal damages of between $1,000 and $3,000.

Federal judges in Oregon, California, Hawaii and Arkansas and in the Alexandria federal court denied restitution awards for Amy and the Vicky series victim. The Arkansas judge found that there was no reasonable way to assess a restitution amount, that the victim was not identifiable and that there was no proof of a "causal link" between viewing the images and specific injury to Amy.

The government has appealed that case, which could set up a showdown at the U.S. Supreme Court over the conflicting rulings.

In the Highsmith case in Norfolk, Amy is awaiting a ruling on restitution by U.S. District Judge Henry Coke Morgan Jr. The judge heard arguments on Sept. 22 at Highsmith's sentencing, but appeared skeptical. He has until Dec. 21 to rule.

"I don't have any testimony. I don't have any documents. How can the court determine how much?" the judge asked.

"I cannot stand here and vouch for these numbers," Assistant U.S. Attorney Randy Stoker admitted.

Stoker submitted to the judge details from other cases and a lengthy position paper arguing for restitution, but he did not provide the court with the letter from Amy or the report from her psychologist, both of which were provided in other cases.

Stoker also acknowledged that even Amy's uncle was ordered to pay restitution of only $6,000, of which she was to receive $1,125.

Amy has received payment from only one defendant, but that didn't stem from a judge's order. Amy settled out of court with that defendant, in Connecticut, for $130,000 in a civil action that voided the need for restitution in the criminal case.

Amy did not testify in any of the cases. The victim in the Vicky series has, in a case out of Fresno, Calif., but even then she was awarded only $1,000. Her mother testified, too.

"The memories and trauma of her abuse still haunt her and our family, but now there is a new abuser," the mother said, according to a court transcript. "The new abusers are the sick individuals who download her pictures and enjoy watching her being sexually assaulted as a child. This sickens me."

Amy's attorney, James R. Marsh of New York, has been fighting the restitution battle for her. Amy, he said, remains in a very fragile state. She just had a baby and is in a troubled relationship.

"She is completely devastated by this," he said. "She basically doesn't have any joy in her life. This is just an awful situation."

Amy wrote in her victim impact statement that she feels unworthy of anything and a complete failure.

"What happened to me hasn't gone away," she said. "It will never go away." ..Source.. by Tim McGlone, The Virginian-Pilot