Who should pay for the traumatic effects of child pornography?

How do you put a price tag on images of child rape? That’s a question the Supreme Court will decide this year, after having heard oral arguments in January in the case of Amy (a pseudonym), a woman who was repeatedly abused by her uncle as a little girl. Amy’s uncle was convicted of creating and distributing child pornography; he went to jail for just over a decade and was ordered to pay about $6,300 in restitution. As police slowly find the many men who downloaded these images, they face not only jail time but serious financial consequences: They often have to pay Amy restitution for the losses she incurred as a result of their crimes. Courts have ordered payments to her ranging from $100 to $3.5 million.

Certainly the payments are deserved. The harm Amy experienced wasn’t just in the sexual abuse she suffered. It also comes from the knowledge that hundreds, perhaps thousands, of men have seen (and are perhaps still seeing) her abuse and are taking sexual pleasure from her victimization. It’s impossible to know exactly how many times her photos were distributed, but 35,000 of them are evidence in 3,200 child pornography cases. And Amy isn’t the only one. Child pornography is both noxious and common, and other victims are similarly making restitution claims through the criminal courts.

But, while relying on the criminal justice system to award financial damages may be satisfying, even efficient, it sets us on a frightening path. Law professor Cortney Lollar calls it a “restitution revolution”: a large-scale shift toward making criminal defendants pay back ill-gotten gains, but also holding them financially responsible for tangential and often difficult-to-compute social and emotional harms. “It’s part of a larger issue of nickel-and-diming criminal defendants,” Lollar told me.

In the child pornography context, that’s a tough critique to level. The victims are wholly vulnerable and the perpetrators overwhelmingly repulsive.

But consider this. Restitution in these cases is demanded largely of people who did not actually physically abuse a child. Traditionally, the damages that victims like Amy request would be awarded in civil court, which focuses on fault and injury and is better equipped to value damages such as emotional harm.

The civil system, though, has a series of holes, as Amy’s lawyer, James R. Marsh, discovered. One of the men charged with downloading her photos was a wealthy Pfizer executive named Alan Hesketh, whom Marsh and Amy considered suing for damages. They quickly concluded that a civil lawsuit wouldn’t be particularly fruitful.  

“We realized that most of his assets were hidden in the Isle of Man,” Marsh told me. “It would be nearly impossible for my client to collect from him in any civil case. That’s when I remembered something about restitution as part of a criminal case.”

Unlike in civil suits — when the injured party sues the person who injured her for financial damages — restitution is an option only in a criminal case, and if a person owes it the federal government can garnish his wages and place liens on his home or property. While defendants in civil cases can often protect many of their assets, including 401(k) and retirement accounts, and can also declare bankruptcy to protect against the collection of the judgment, individuals owing criminal restitution have no such luck.

Is this a coup for victims? Or is it a dangerous encroachment that treats financial penalties not simply as the righting of wrongs but rather as punishment? 

Restitution has long been part of the criminal justice system, but its use until recently had a very narrow scope. For example, a car thief would have to pay back the cost of the car he stole or an arsonist the amount of the house and items she destroyed. It’s the civil system that seeks to compensate for the suffering an individual has undergone: Parties who suffer harm at the hands of another, even indirectly, can sue for monetary damages and bring in experts to show both the scope of their harm (whether physical, emotional, financial or psychological) and the impact it will have on future earnings and enjoyment of life.

But new criminal cases, including those that request restitution for possessing images of child pornography, blur those lines.

Restitution in these child pornography possession cases is awarded not to disgorge an ill-gotten gain (the traditional reason for criminal restitution) but to make the victim whole (traditionally the purview of the civil courts). And it pulls that restitution not from the men who physically abused children but from men who viewed images. 

How legitimate is this claim, legally? Lollar said, "I'm not disputing that that harm exists. But it is troubling that in focusing just on the viewers of child pornography, we are still shying away from the underlying issue, which is child sex abuse. We are treating the viewing of these images as more serious than the child sexual abuse itself, without which child pornography would not exist."

Marsh disputes that characterization. He says his clients would have gone after the creators of the images if they had been able to, but Amy’s abuser, for example, was prosecuted before the federal Crime Victims’ Rights Act opened the door for wider restitution claims. A civil suit would be arduous and not particularly fruitful; recently released convicts don’t tend to have a lot of assets.

There are no easy answers for how to make victims whole while still protecting the rights of criminal defendants. Some legal scholars compellingly argue that restitution is preferable in child pornography cases, because it may mean the defendant gets a shorter prison sentence while the victim gets the money she needs to access invaluable services to aid in her recovery. That’s a win-win, compared with decades in jail and an ongoing lack of resources. But while expanding restitution to reach those who indirectly caused harm is a sympathetic position in the child porn context — even the Supreme Court seems to agree that restitution is appropriate and the question is only “how much” — it becomes much more troubling outside of that. 

Laying the groundwork for the expansion of criminal restitution leads us down a scary path that overturns the very foundation of our criminal justice system. In some states, defendants are forced to pay for the lab work used to convict them, because taxpayers don’t feel it’s their duty to foot the bill for justice to be done. In some states, defendants pay fees for DNA testing or fugitive apprehension, while states use that money to fund a variety of other programs under the theory that crime harms all segments of society. Defendants are sometimes required to pay for anger-management classes, their own parole supervision, “prosecutors’ fees” or breath alcohol tests. Our system is designed to safeguard against human fallibility; it gives defendants legal counsel and erects a high standard for conviction. But with the expansion of restitution, it is being molded instead into a clearinghouse made up of and paid for by the socially undesirable.

In the child pornography context, the men who download images of child abuse are disproportionately white and well off. But the broader criminal system is made up of low-income brown and black men, and it will be onto their backs that restitution expands. Those men and their communities have already paid a high price for our nation’s penchant for harsh punishment and incarceration. Not only do we have the largest incarcerated population in the world, but recent felony parolees in Texas, for example, leave jail owing an average of $4,000 to $5,000 in offense-related expenses. That same group has an unemployment rate hovering around 40 percent.

Do we want them to pay even more?

The messy reality of sexual abuse, rape and incest is that assailants are much more likely to be someone a child knows than a stranger on a faraway laptop. There is, however, a kind of convenience in the arms-length evaluation of (and outcries about) child sex-abuse imagery. It’s easier, in many ways, to focus on the bad men we can’t see than on the ones we live with, share blood with and even love.

This doesn’t mean we shouldn’t criminalize the possession and dissemination of child sexual-abuse images — we should. Victims deserve a justice system that attempts to alleviate their suffering, and in the child porn context, it probably should include restitution. But more generally, when it comes to repairing harms, the person who directly caused the harm is the one who should pay. Providing crime victims with support and tools for recovery should be a broader social obligation. Expanding criminal penalties to find more ways to punish bad men is satisfying, but it’s a far cry from justice.