2-3-2010 National:
When Amy was a little girl, her uncle made her famous in the worst way: as a star in the netherworld of child pornography. Photographs and videos known as “the Misty series” depicting her abuse have circulated on the Internet for more than 10 years, and often turn up in the collections of those arrested for possession of illegal images.
Now, with the help of an inventive lawyer, the young woman known as Amy — her real name has been withheld in court to prevent harassment — is fighting back.
She is demanding that everyone convicted of possessing even a single Misty image pay her damages until her total claim of $3.4 million has been met.
Some experts argue that forcing payment from people who do not produce such images but only possess them goes too far.
In February, when the first judge arranged payment to Amy in a case in Connecticut, Jonathan Turley, a law professor at George Washington University, called the decision “highly questionable” on his blog and said it “stretches personal accountability to the breaking point.”
The judge in the case acknowledged, “We’re dealing with a frontier here.”
The issue is part of a larger debate over fairness in sentencing sex offenders. For years, lawmakers (and some voters) have reasoned that virtually no punishment was too severe for such criminals; even statutory limits on sentencing were often exceeded.
Now some courts have begun to push back, saying these heavy sentences are improper, and a new emphasis has arisen on making sex offenders pay monetary damages for their crimes. If such damages become widespread, experts say, it may make it easier to reach a consensus on measured sentencing.
Douglas A. Berman, a law professor at Ohio State University and an expert on sentencing, said the rise in monetary damages might curb “a troublesome modern tendency of many legislators and judges to respond to all perceived crime problems with longer and longer terms of imprisonment.”
Those longer terms and conditions are already under fire.
On Thursday, the California Supreme Court ruled 5 to 2 that a state ballot initiative allowing the indefinite extension of sentences for sexually violent predators might violate constitutional guarantees of equal protection; the court ordered a new hearing to explore the issues.
On Monday, the court also asked for more study on a law that prohibits sexual predators from living within 2,000 feet of a school or park after their release from prison. The law, called Jessica’s law, was approved by voters in 2006.
Corey Rayburn Yung, an expert in sex crimes at the John Marshall Law School in Chicago, said that while “it’s hard to be too sympathetic” toward those who possess images of child pornography, “there is such a thing as going too far.” The harm to child pornography victims from those who possess the images, he said, is less direct than that caused by those who abused the children.
The most novel approach is being taken by Amy’s lawyer, James R. Marsh, whose practice focuses on child exploitation cases. Mr. Marsh’s arguments are the fruits of a national movement granting greater rights to crime victims and shifting the financial burden of crimes to criminals, said Paul G. Cassell, a former federal judge and professor of law at the University of Utah, who advised Mr. Marsh and wrote a brief supporting his position in a Texas case.
Amy’s uncle is now in prison, but she is regularly reminded of his abuse whenever the government notifies her that her photos have turned up in yet another prosecution. More than 800 of the notices, mandated by the Crime Victims Rights Act and sent out by the federal victim notification system, have arrived at Amy’s home since 2005.
Those notices disturb Amy when they arrive, but Mr. Marsh, looking at the same pieces of paper, saw an opportunity: he could intervene in the federal prosecutions and demand restitution. He had Amy write a victim-impact statement and hired a psychologist to evaluate her. Economists developed a tally of damages that included counseling, diminished wages and lawyer fees. The total came to $3,367,854.
Mr. Marsh contends that every defendant should be ordered to pay the full amount, under the doctrine of joint and several liability. According to that doctrine, the recipient would stop collecting money once the full damages are paid, and those held responsible for the amount could then sue others who are found culpable for contributions. But the doctrine, which developed in civil law, does not apply as easily in criminal law, especially with an indeterminate population of defendants.
Amy’s first restitution award came in February in the Connecticut case; it involved Alan Hesketh, a British executive at the pharmaceutical giant Pfizer, who paid $130,000. Since then, Mr. Marsh has automated the process and e-mailed Amy’s filings to United States Attorneys in 350 cases. “I’m able to leverage the power of the Internet to get restitution for a victim of the Internet,” he said.
Mr. Marsh has, in effect, expanded his small New York law firm by hundreds of federal prosecutors. Some of them decline to file for restitution — a judge in Minnesota ordered prosecutors to explain why — but many have. Judges’ reactions have varied, with some declining to order restitution, including one in Texas and another in Maine, usually saying that the link between possession and the harm done is too tenuous to reach the level of “proximate harm” generally required under the law for restitution.
Yet in two Florida cases, judges have ordered defendants to pay nearly the full amount requested and even more. Many judges who have considered the issues award a few thousand dollars. Even though many of the defendants have no way to pay even the smallest fine, Mr. Marsh’s efforts in the first year have earned $170,000 for Amy.
“This is a lawyer’s dream,” he said.
The federal government has struggled with how to best approach the wave of new cases, and those to come. Another victim known as Vicky has begun making similar claims in court, and still more victims could come forward. Professor Berman suggested Congress would have to sort out the issue, perhaps with a victim compensation fund.
A memorandum last summer from a lawyer in the Administrative Office of the Courts, the federal agency that runs the judicial branch, stated that the law did not support restitution for “mere possession.” But Lanny A. Breuer, the assistant attorney general for the criminal division at the Justice Department, issued a letter in October stating “we do not agree that restitution is not available to victims of the possession of child pornography as a matter of law.”
Mr. Breuer urged judges not to let “practical and administrative challenges” to the restitution issue “drive a policy position that directly or indirectly suggests that possession of child pornography is a victimless crime.” ..Source.. Story: JOHN SCHWARTZ Photo credit: Niko J. Kallianiotis
February 3, 2010
Pornography, and an Issue of Restitution
November 6, 2009
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
