Professor Turley, you are WRONG. Inexcusably, inexplicably, staggeringly and quite tragically wrong. This is the very definition of personal accountability. The consumers of child pornography are the fuel for the engine that created it, and they should very much be held personally accountable for their complicity.I'm not really sure that's accurate, It seems like a lot of this is created by people who want to trade it, rather then pay for it financially. Especially in cases where it was produced in the U.S. (Maybe payment is more common in other countries) Once it gets beyond the initial traders (who make porn to trade) I don't see how simply having it on a hard drive makes it more likely to be produced.
There is no question that people who buy or trade such child pornography are contributors or facilitators of these terrible crimes. However, the extension of the definition of victim could lead to liability without limitation. Presumably, anyone watching porn movies with an underaged character or in possession of a magazine with such a picture could be similarly faced with restitution demands. Prosecutors could threaten targets with financial ruin under such theories — forcing guilty pleas to other offenses. Restitution is generally limited to the direct victims of the defendants actions.He has a second blog post on the topic.
The concern is that there are a host of crimes that may involve the collateral crimes of others. Thus, receipt of stolen goods requires return of the property and a criminal penalty. However, a person guilty of possession is not normally required to pay restitution for a burglary if he did not play a role in the original crime. Thus, a pawn shop owner is responsible for the crime of possession of a stolen object but not restitution for the broken window or physical assault related to the break in.
Yet, courts have traditionally limited restitution to the victims of the direct crime. Those who abused this child and photographed it would fit into such a category of offenders owing restitution. Likewise, if this defendant conspired or solicited the specific abuse or photography, he would be legitimately held for restitution. This should make for a very interesting appeal.
I didn't say I agreed with that argument, just that it was an argument you could make that was more reasonable then the other one.You could make the argument that by knowing that these people have viewed the tapes, Amy is re-victimized, and thus deserves compensation for that reason.This argument makes me uncomfortable.
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....posted by DevilsAdvocate at 7:43 PM on February 3, 2010
[I]n 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.
in addition to any other civil or criminal penalty authorized by law, the court shall [...] direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim’s losses [...]The question is whether the people who disseminated the videos were jointly engaged in the crime of "disseminate nasty videos of Amy", in which case each one is jointly liable for restitution (so you can sue one, some or all of them, and leave them to apportion the blame amongst themselves) or whether they were mostly engaged in individual crimes. As one of the judges pointed out, it would be impossible to show that a certain amount of her harm was done by any particular defendant, which means that without joint liability this particular statute would be useless - ineffective.
I come down on the joint-liability side (partly because each of them knew that he was part of a chain of wrongdoers), but I acknowledge that it's pushing the boundaries of what we mean by a "joint criminal enterprise".Does this make drug users part of a "joint criminal enterprise" with drug distributors? That would be troubling.
I am cognizant of the objections raised by Professor Turley, but individualized penalties for economic externalities have been the justification for enumerable laws, especially drug laws.I'm sure Professor Turley would agree that Congress could enact a statute requiring people convicted of possession of child pornography to pay a statutory amount to the persons depicted in the pornography. The problem is that such a statute, however sensible, does not exist. Instead, we're stuck with a statute that can't really be made to work without a rather expansive view of joint criminal liability, and one that would not easily be limited to child pornography.
This case was about restitution, not about criminal liability.I understand that. My question is whether the joint liability doctrine applied for purposes of determining restitution is used elsewhere in the federal criminal law. For example, would a ruling for Amy affect the understanding of enterprise liability under RICO?
So you're saying that being raped repeatedly is not one of the worst things in the world?No one is saying it's not the "the worst thing in the world" But things are either illegal or not. The question is about liability for all illegal things, not just this one.
Child pornography victims could sue anyone convicted of producing, promoting or possessing their sexual images for at least $150,000 in damages under a proposal backed by the Missouri attorney general.
The legislation, which could be sent to a Senate committee this week, is intended raise the financial stakes for the purveyors of child pornography while giving private law firms an incentive to help crack down on the industry.
"Possession and promotion of child pornography is often considered a victimless crime because it's an image being distributed," said Joan Gummels, the legislative director for Missouri Attorney General Chris Koster. "But every image in child pornography portrays a victim. "The bill is an attempt to give that victim a voice against the perpetrator of the crime," Gummels added.
Koster's office said the measure is modeled after a 2008 Florida law, which was promoted by that state's attorney general as a first-of-its-kind for state courts. A 2006 federal law raised the minimum amount of financial damages that child pornography victims can receive in federal court from $50,000 to $150,000.
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posted by RussHy at 4:01 PM on February 3, 2010