Child porn victims seek multimillion-dollar payouts
One victim. One photo. $3.68 million
'Possession alone sufficient'
The statute mandates restitution in any child exploitation conviction for the “full amount of the victim's losses” and specifically includes costs incurred by medical services, physical and occupational therapy, lost income and attorneys' fees. It also specifies “any other losses suffered by the victim as a proximate result of the offense.”
Marsh and other child victim advocates argue that the requirement to prove the convicted person proximately caused the damages, applies only to this last catchall item. The other losses need only be established by a preponderance of the evidence, which is almost always satisfied by a conviction that includes one or more images of the victim.
“The possession alone is sufficient to establish the causal link you need for restitution,” said Meg Garvin, executive director of Lewis & Clark College's National Crime Victim Law Institute. “In every possession case, there is additional harm being caused to the victim and therefore you meet all the tests and restitution becomes mandatory. All of the defendants who possessed the image of Vicki – all of them – owe her the full amount of restitution.”
But critics said an award can be granted only when prosecutors show the offense was the proximate, or direct, cause of a victim's losses. And some also question the wisdom of creating cash rewards for victims who emphasize just how badly the offenses continue to harm them.
“There's always a risk in the awarding of restitution that not only a victim is essentially incentivized to assert her harm is as great as possible,” said Douglas Berman, a professor specializing in federal sentencing law at Ohio State College of Law. “What really concerns me is we've created an environment in which she will benefit by asserting that she continues to suffer the harms of these crimes.”
Virtually all of the child porn offenders ordered to pay restitution had no contact with the victims and played no role in the production of the images, which were shot and originally published by someone else many years earlier. Despite their limited roles in in the victims' considerable pain and suffering – most of which, it would seem, was caused by the original abusers – the perps are required to shoulder equal responsibility. Critics have argued it's a slippery slope.