Supreme Court to consider restitution for porn victims

SEATTLE – A Seattle attorney will be in the gallery next week when the U.S. Supreme Court hears oral arguments in a case to decide if defendants convicted of possessing child pornography should pay restitution to the victims whose online images are viewed and traded over and over again.

Carol Hepburn, a Seattle native and civil attorney who practices in Seattle and Portland, represents a young Pacific Northwest woman who was repeatedly raped by her father, who then posted photos and videos of the abuse online.

The images of Hepburn’s client as a 10-year-old frequently surface in pedophilia circles, and have been part of 3,200 criminal cases across the country since 2009. One man who possessed the woman’s images is now serving federal prison time for stalking her.

“He sought her out through the Internet and said he’d been looking for her for five years,” said Hepburn, 61, who began representing the woman after her stepfather contacted the National Crime Victims Bar Association.

More recently, comments have been left on pedophilia chat boards that make it clear “pedophiles have been looking for her again and talking about her,” Hepburn said of her client, who even as an adult is recognizable from the online images.

At Hepburn’s request, the Seattle Times is not using a common alias for the woman, now in her 20s, or publishing her city of residence.

Child pornography is unlike other sex crimes because it is ongoing and pervasive, said Hepburn. While a victim can heal from actual sex abuse and put it in the past, Hepburn said her client and others like her are constantly traumatized by the knowledge that thousands of people all over the world are downloading and viewing images of the abuse they suffered.

While the Supreme Court is hearing a case involving a Pennsylvania woman referred to as “Amy Unknown,” Hepburn’s client has a parallel case that the Supreme Court has stayed until the justices issue a ruling in the Amy Unknown case, known as Paroline v. United States.

Oral arguments are to be presented Wednesday, with a ruling expected sometime before the court recesses in early July.

Paul Cassell, a law professor at the University of Utah and a former federal judge, and James Marsh, a New York trial attorney who founded the Children’s Law Center in Washington, D.C., are representing Amy Unknown, who was raped and photographed by her uncle.

The case before the Supreme Court revolves around the question of congressional intent in a section of the 1994 Violence Against Women Act that mandates that people federally convicted of possessing child pornography pay restitution to victims.

Restitution is typically ordered after a defendant is sentenced to prison. It is meant to make victims whole by financially compensating them for damages that result from a defendant’s criminal conduct.

But federal trial and appeals court judges across the country have handed down a wide variety of restitution orders in child-pornography cases, from some ordering no restitution at all, to others who’ve ordered defendants to pay partial or full restitution.

In one Seattle case, U.S. District Court Judge Richard Jones ordered Joshua Kennedy, now 37, to pay Hepburn’s client $48,000 in restitution, along with $17,000 to Amy Unknown – $1,000 for each image of the two victims he downloaded, court records show.

In November 2007, a customs agent at Seattle-Tacoma International Airport seized Kennedy’s laptop, which held thousands of images of child pornography. Found guilty at trial, Kennedy was sentenced to five years in prison.

Kennedy appealed to the 9th U.S. Circuit Court of Appeals, which upheld his conviction but vacated Jones’ restitution order because the justices ruled Hepburn’s client and Amy Unknown couldn’t prove a proximate cause between Kennedy’s viewing of their images and the harm they suffered, according to court records.

In the case before the Supreme Court involving Doyle Paroline, however, the opposite happened: Paroline, of East Texas, was arrested in 2009 and later pleaded guilty to possessing child pornography, including images of Amy Unknown. After a federal judge in the case declined Amy’s petition for restitution, the 5th Circuit Court of Appeals reversed the lower court’s decision in November 2012, ruling it was not necessary to show a direct cause between a defendant’s criminal conduct and the damage experienced by a victim.

Paroline then petitioned the Supreme Court to hear the case.

The Supreme Court is being asked to settle the question of whether Congress intended for victims to have to show “proximate cause” between someone viewing their child-pornographic images and harm done to them. Sen. Patty Murray, D-Wash., is one of seven U.S. senators – Republicans and Democrats – to sign an amicus brief in support of Amy Unknown.

The senators’ brief argues that the draft history and plain language of the statute clearly show that Congress never intended for victims to prove proximate cause in order to collect restitution for lost wages, medical and psychiatric services, physical and occupational therapy, transportation, temporary housing or child care. Proximate cause need be shown only for “other losses” suffered by the victim as a result of the offense, the brief says.

“It’s everything that has an invoice associated with it, it’s all out-of-pocket” expenses, said Hepburn, adding that damages for pain and suffering aren’t included.

Amy Unknown’s damages have been estimated at $3.3 million, with $1.6 million paid so far, according to Marsh.

But Amy’s attorneys are also arguing for “joint and several liability,” which could make one defendant responsible for all of a victim’s losses – and it would then be up to the defendant to seek repayment from others who also downloaded and viewed the images.

That would shift the burden of tracking down defendants from “the innocent victim to the people responsible for this crime,” Marsh said, saying those who view these images are all part of a larger “marketplace” that continues to create demand for photos and videos of children being sexually abused.

So far, Hepburn’s client has suffered an estimated $1.3 million in damages – and has collected about $800,000, Hepburn said. Of 3,200 criminal cases involving images of her client, Hepburn has asked for restitution orders in 1,000 cases – with judges ordering restitution in about 400, she said.