Paroline v. United States – Why the U.S. Supreme Court Got it Wrong


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When child sex abuse victims find online images of their abuse, can they recover against the individual who viewed or downloaded the images? Probably not, according to the U.S. Supreme Court in Paroline v. United States.

Amy Unknown, a Pennsylvania resident, was raped by her uncle when she was only 8 years old. Pictures of the horrific crime were shared online by thousands. Enter Paroline, a Texas resident who was ultimately convicted of possessing 2 of those images.

Related: Brian Kent Co-Authors Amici Curiae Brief to Allow Restitution, U.S. v Paroline

At Paroline’s sentencing, the judge considered whether he was required to pay full restitution to the victim under the 1994 Violence Against Women Act. Amy Unknown’s damages were determined to be $3.4 million dollars. The judge ultimately ruled that there was no evidence Paroline’s viewing of the images caused any actual damage to Amy Unknown.

The case was appealed to the 5th Circuit Court of Appeals which ultimately agreed with the prosecutor and Amy Unknown, and ordered the lower court judge to determine a restitution amount. Paroline appealed to the U.S. Supreme Court which rendered a decision last month.

In a 5-4 split decision, the U.S. Supreme Court ruled in favor of Paroline and held that a child pornography defendant could only be ordered to pay financial restitution to the victim if there was evidence showing that the defendant’s actions caused actual harm. In other words, the actions of the specific defendant must be in line with the damages caused. Essentially, the Court had a hard time finding that those who view child porn images could, in theory, be ordered to pay multi-million dollar amounts to the victims depicted in the images.

Related: Rights of Assault & Sexual Assault Victims in PA – A Brief Overview

The statutory provision at issue, Section 2259(c) of the Violence Against Women Act, defines a victim as “the individual harmed as a result of a commission of a crime under this chapter.” (emphasis added)

The Court applied usual tort principles to the language “as a result of,” and held that the victim must show that the specific defendant’s actions proximately caused the harm or damages.

The unfortunate reality is that the majority of the Court (5 out of 9) got bogged down in splitting hairs, disagreeing on how to calculate the amount each and every child porn perp down the line would have to pay to the victim.

With the Court’s decision, the burden is clearly on the victim of child sexual abuse to prove that a given defendant caused specific damages.

The problem with the Court’s decision is twofold. First, child pornography cannot be broken down so simply. Internet transfer of images depicting child sex abuse and assault is, by its very nature, a silent conspiracy which includes the initial producers, the websites which knowingly allow upload/trade of such images, and the individuals who actually view the images. In addition, the unique problem of child pornography is the ease of sharing via the internet. This ease of sharing in turn leads to the pervasive nature of child pornography, and in order to resolve the problem, those who would view images of child sexual assault and abuse must face stiff penalties, including the possibility of being ordered to pay full restitution to the victim, the child in the images.

The second problem with the Court’s decision is that it failed to apply other tort principles, such as joint and several liability, and instead merely applied the principle of proximate causation, which requires the tort plaintiff to prove that the defendant’s actions actually led to the harm or damages.

The principle of joint and several liability is well-established and basically means this – if the combined actions of more than one individual lead to an injury, then any one of the defendants may be required to pay the full amount of damages. The defendants can then seek contribution from each other. The principle of joint and several liability takes into account that it is unfair to require the plaintiff to differentiate among the harm of multiple individuals and therefore places the burden on the defendants.

The Paroline Court refused to apply the principle of joint and several liability, and instead erred on the side of the defendant, an individual who downloaded child sex abuse images, someone who is no better or worse than the individual who perpetrated the initial act(s).

The problem of child sex abuse is certainly a unique one, and is only exacerbated by the internet. As a society, we must apply heightened standards in child sex abuse and child pornography cases in order to combat the problem. The U.S. Supreme Court simply got it wrong in the Paroline case, and the 5-4 split decision indicates that next time, it may get it right.

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