Yesterday U.S. District Judge Patrick Schiltz of the District of Minnesota issued an interesting order regarding a restitution application in a child pornography case. In his order, found here, Judge Schiltz chastises the government for failing to pursue restitution for child pornography cases in his district, even though Congress has made restitution mandatory in such cases. Judge Schiltz wrote:
This Court has recently handled a number of other child-pornography cases in which the United States Probation Office has identified victims who are seeking restitution. Notwithstanding the strict mandates of § 2259, the government has also declined to pursue restitution in those cases. Given the clear Congressional mandate that those convicted of child pornography offenses pay restitution to their victims, the Court will no longer accept silence from the government when an identified victim of a child-pornography offense seeks restitution. If the government declines to seek restitution, the government will have to give the Court some explanation for its decision.
The statute that Judge Schiltz cites, found here, directs district courts to order restitution for the “full amount of the victim’s losses.” In this particular case, a young girl who was raped and had pictures of the crime taken seeks several million dollars in restitution to pay for counseling and other expenses resulting from the crime.
The victim has sought these damages not only from the defendant convicted in this case in Minnesota but more broadly from every defendant convicted of viewing the images taken of her against her will. For instance, she sought such restitution in Texas. There, a federal district court judge ruled that she could not trace her injuries specifically to the particular defendant convicted in that case. She sought mandamus relief in the Fifth Circuit, which held in a recent opinion that the district judge was not “clearly and indisputably” wrong in declining to order restitution for the girl. [Full disclosure: in the district court, I filed a brief on behalf of the National Crime Victims Law Institute supporting the restitution application.]
The issue of restitution in child pornography cases is an interesting and important one that seems destined to ultimately go to the U.S. Supreme Court. My own view is that Congress drafted a very broad restitution statute designed to give the maximum possible recovery to victims of child pornography. Moreover, if any doubt existed about how to interpret this remedial statute, it should be resolved in favor of the innocent victims of these offenses rather than the criminals who continue to cause injury by illegally possessing the pictures in question.
David Schwartz says:
The only theory of harm seems to be that the continued existence of the child pornography haunts the victims and that creating a market encourages the production. All the others, though mentioned in the briefs, don’t seem to apply to a person who merely obtains the child pornography after the fact.
The “creating a market encourages the production” would seem to make people who have money stolen from them by junkies “victims” of drug dealers. And you can’t trace any particular theft to any particular dealer.
The “existence haunts the victims” would make pretty much anyone a victim of pretty much anything. And I can’t quite figure out how one specific act of possession can be traced to specific harms the victim suffers.
I think there has to be some kind of requirement that the harm be traceable to the crime. I’m not arguing direct cause, but here you don’t even have “but for” causation.
January 5, 2010, 12:15 pmOren says:
DS, Congress did not write the statute to require any causation of the sort that you assert doesn’t exist. That is, even accepting your argument, the statute requires restitution.
January 5, 2010, 12:21 pmPaul Cassell says:
As Oren points out, Congress has written a very broad statute that moves beyond traditional kinds of causation limitations. Moreover, I think reasonable “but for ” causation arguments. Here is what the district court said in the Texas case I referenced:
In United States. v. Norris, the Fifth Circuit held that “children depicted in child pornography may be considered to be the victims of the crime of receiving child pornography.” 159 F.3d 926, 929 (5th Cir. 1998). The court determined that “the ‘victimization’ of the children involved does not end when the photographer’s camera is put away.” Id. The end-user or possessor of pornographic materials may be considered to be causing the children depicted in those materials to suffer as a result of his actions in at least three ways: (1) because the dissemination of the images perpetuates the abuse initiated by the producer of the materials, a consumer who merely receives or possesses child pornography directly contributes to the child’s continued victimization; (2) because the mere existence of the child pornography invades the privacy of the child depicted, the recipient of the child pornography directly victimizes the child by perpetuating the invasion of the child’s privacy; and (3) because the consumer of child pornography instigates, enables, and supports the production of child pornography, the consumer continuously and directly abuses and victimizes the child subject. Id. at 929–30. Thus, “the victimization of a child depicted in pornographic materials flows just as directly from the crime of knowingly receiving child pornography as it does from the arguably more culpable offenses of producing or distributing child pornography.” Id. at 930.
January 5, 2010, 12:27 pmDevil's Advocate says:
You’re overreaching here. I skimmed through your brief. While I am a civil trial lawyer, and not an expert on criminal restitution, I think that the statute would likely be unconstitutional if it were to be construed as broadly as you argue for it to be.
For example, if we were to hold a possessor of child pornography jointly and severally liable for every bad act committed in connection with the pornography (including those by the original photographers, the [ahem] actors, etc.), then the defendant should be afforded the right to discovery procedures (such as exist in civil cases) to obtain evidence regarding the actual extent of the damages caused by the pornography. It violates due process to enter judgment against someone for X amount unless he has had a full and fair opportunity to litigate the value of X.
The discovery process, of course, would not be a pleasant experience for the victim. A better alternative to this statute would have been hefty, set fines with proceeds earmarked to a victim’s compensation fund.
January 5, 2010, 12:38 pmJay says:
DA–I don’t think the Government seeks restitution in any cases where the victim isn’t quite willing to come forward and testify about the harm s/he feels the child porn has caused. I think there are essentially a few “prepackaged” victims of widely distributed child porn series who have made themselves available to go testify in district courts when the cases present themselves; I imagine it’s coordinated by one of the sections at Main DOJ. Here, it appears that the victim did specifically seek restitution but the Government refused to pursue it.
January 5, 2010, 12:58 pmI do agree that the causation seems questionable, although Congress has specifically adopted the “possession feeds the market” theory for child porn cases in general. A bigger issue to me would seem to be double recovery; I’m not sure how the government shows the increased marginal harm for each additional viewer, or how much money any of the victims actually see.
Dave N. says:
This is not meant as snark, but rather as serious questions for Professor Cassell:
While you were a federal judge, did you order restitution in these types of cases?
Obviously, if a kiddie porn case never crossed your docket, the answer is easy. If one did, and you did order restitution, on what basis did you base the restitution amount? If one did, and you did not order restitution, what was your rationale in not doing so?
January 5, 2010, 1:14 pmSk says:
No distinct viewpoint to these comments: just a few observations:
This seems structurally quite similar to electronic piracy-fine arguments: I as Joe teenager am financially liable (perhaps in a great amount) for the loss to RCA or any other music distribution company, because I have an illegal copy of a pirated song owned by that distribution company.
What would your view be towards ‘viewers’ of pornography who were unaware that it was child pornography (I realize this makes no sense for young children victims, but for children in their mid-teen years this is feasible)? What if Joe X sends out spam of child pornography to millions of strangers? Are they all financially liable? Note that the understanding/ignorance of the viewer has no impact on the perceived loss of the victim. Would an unwitting viewer of child pornography be as financially liable as a knowing viewer of child pornography? If not, why not?
The point is: if you take the common sense approach, and admit that we shouldn’t fine unwitting receivers of spam for that reception, then you are basically acknowledging that the purpose of the fine is not to compensate the victim, but rather to punish the perpetrator.
And, on the other hand, if you insist that the purpose of the fine really is to compensate the victim for her loss, then it shouldn’t matter how or why the pictures were viewed (just as it doesn’t matter whether I accidentally or intentionally ran into your car: in either case, I still have to pay damages*), and anyone who views the pictures should be fined.
Sk
*Admittedly, it becomes complex: if I ran into your car because a third party vandalized a stop sign, then that third party is actually liable. Perhaps the ‘distributor’ of the porn is similarly liable rather than the unwitting viewer.
January 5, 2010, 1:18 pmegd says:
But the victims of theft are victims of the drug dealers, which is an argument advanced for criminalization of drug possession. We also regularly punish those downstream from the crime through confiscation of stolen goods from a bona fide purchaser, that’s why pawn shops refuse to buy stolen merchandise.
I think that your idea of a “victim’s compensation fund” is a good idea, because it doesn’t stop growing due to multiple recovery limits and doesn’t unduly punish the first offender to be caught with a given image.
January 5, 2010, 1:20 pmOren says:
Unless the statute specifies damages of X for a particular tort. As I understand it, if the legislature provides for $100 of damages for each instance of lawn-pissing, then an action to recover $100 for pissing on my lawn does not need to litigate the harm done so.
Then again, restitution isn’t damages so I might be way off base here.
And the Court has endorsed that logic with respect to the 1A argument against criminalizing mere possession of CP. If the Court rejected that logic here, it would put the entire line of cases into question.
January 5, 2010, 1:25 pmEH says:
Apples and oranges. While they are both civil, the music piracy cases all involve statutory penalties.
January 5, 2010, 1:26 pmJohn says:
What is the logic of restitution as part of a criminal case rather than a separate civil case? Both?
January 5, 2010, 1:34 pmMalvolio says:
So your plan to have the Federal government pay adolescent girls to have naked pictures of themselves taken? You realize, I hope, that the phrase “devil’s advocate” is meant symbolically.
OK, I’m being a little snarky here, but there has been no shortage of “child pornography” cases where the subject of the photograph was also the photographer. While I can see both sides of a system under which a 16-year-old girl sends snaps of her boobies to her boyfriend, who subsequently posts them on the Internet, and the government sends her a check, dispassionate analysis would lead one to believe that to be poor public policy.
Wouldn’t that be an argument against criminalization of drug possession?
January 5, 2010, 1:43 pmBob from Ohio says:
That is some counseling bill.
A really horrible thing happened to her but this is silly. She could not possibly have “restitution” in such an amount.
January 5, 2010, 1:46 pmOren says:
If Congress can mandate particular statutory penalties for civil violations, why can’t they do the same for criminal restitution?
That is why we have prosecutorial discretion, even if most DAs need to be hit by the clue-by-four to induce its use.
January 5, 2010, 1:47 pmPaul Cassell says:
Dave N. asks whether I awarded restitution of this type in a child pornography case when I served as a federal judge. I did have child pornography cases, but only a handful of them involved identified child victims. To the best of my recollection, in none of those cases did the identified victim ever ask for restitution — unlike the case in Minnesota, where the probation office has a detailed application for restitution from an identified victim.
January 5, 2010, 1:49 pmNickM says:
Actually, tracing a theft to a particular dealer may be very easy – if you have caught the thief. Most drug users have very few dealers they go to.
Nick
January 5, 2010, 1:51 pmegd says:
No, I meant for.
The argument is that drug addicts will run out of their own money and as a consequence, steal to acquire more money for drugs. By criminalizing drug possession, there will be fewer possessors and therefore fewer addicts who steal to acquire their drugs.
January 5, 2010, 2:02 pmJust Dropping By says:
Judge Schiltz is apparently looking for a TV show deal or something since he presumably can guess why the government rarely seeks restitution in such cases. Federal prosecutors aren’t exactly bleeding hearts toward the plight of criminal defendants, so if they routinely skip an opportunity to beat up such defendants, they must have a logical reason. The best explanation I can think of is that the vast majority of criminal defendants are functionally judgment proof, so why would the prosecutor’s office want to waste resources beating a few nickels out of an already convicted defendant rather than, say, securing a new conviction of some other defendant?
January 5, 2010, 2:12 pmSoronel Haetir says:
The logic is judicial economy. Where the amount isn’t contested or can be determined in a straightforward manner it makes sense to impose the restitution order without needing a separate civil trial. You’ve already taken care of the standard of proof since the criminal conviction requires a greater showing than civil liability.
And that is actually where I believe these restitution requests break down. Trying to determine the amount any particular offender has harmed the victim does not seem like a straightforward operation.
January 5, 2010, 2:26 pmThese are not cases of statutory damages where Congress has in fact set out a range. My understanding is the MVRA requires showing of actual loss, unlike the sentencing guidelines where loss is calculated on one of actual loss, intended loss or in a final effort gain by the offender. I’ve seen a fair number of articles on this topic where judges have in fact treated it like a statutory damages case and ordered some fixed amount basically unrelated to the much higher request. And other judges have rejected them outright. That variance, on basically identical cases (after all they involve the same requesting victims) is one reason for expecting SCOTUS to eventually weigh in on the topic.
Malvolio says:
I hope that by “the argument”, you mean “the argument that dishonest people have made”, not “the argument that I am making”.
Criminalizing drug possession across the board would reduce the number of possessors but increase the number of thefts (and presumably, no one whose car was broken into would be comforted by the fact that the guy who stole his radio also stole a lot of other radios). This is the theoretical result was well as the wholly obvious empirical one.
Criminalizing drug possession for use while legalizing it for sale would reduce the number of thefts — since the total cost of use would increase and drive out some users, but the cash costs, the costs that could be paid in stolen Blaupunkts, would go down, make for fewer addicts, each with less need to steal.
So far as I know, this solution (legalizing sale, criminalizing use) has never been proposed. Quite the opposite, addicts are pitied, coddled, and treated, while their suppliers are demonized. (New York is publishing handbooks on how to best take heroin; can you imagine what would happen to an agency that recommended safe ways to deal smack?)
January 5, 2010, 3:18 pmRailroad Gin says:
Wouldn’t the bulk of damages fall into pain and suffering as opposed to actual economic loss? That is, most of the damages are for a civil lawsuit and not a criminal prosecution. I can see that some restitution is in order for a reasonable amount of counseling. Beyond that, nothing was stolen, there is no physical injury and no property was damaged. I can’t imagine how criminal restitution could ever be above a few thousand dollars in cases like this.
The $3.5 million the victim was seeking is absurd on its face. Furthermore, even if she was entitled to this amount, it is extremely unlikely that the defendant had three million dollars lying around.
I don’t blame the U.S. Attorney’s Office for not trying to squeeze blood from a turnip. Nor do I blame them for not pursuing a restitution claim that was so ludicrous that it would arguably have been unethical for prosecutors to pursue it.
Also, there are situtations where the victim will not assist with discovery, is unwilling to testify, etc. In theory the prosecutor could have the victim held in contempt, charged with obstruction, etc. As a practical matter that almost never occurs.
There are any number of valid reasons why a prosecutor might not do a victim’s bidding. Regardless, that decision is within the purview of the executive. A judge criticizing how the prosecutor handles restitution is like a judge disagreeing with what charges are filed. Its really none of his business.
There are also any number of restitution statutes that require the court to order resitution. But if the same situation were to occur in an auto theft or shoplifting case, the court would just not order restitution or would leave it open. This is a rather common occurence. There is nothing unique about this except that the restitution arises in the context of a child porn conviction. So I agree with those that think the judge was more interested in his cause celebre than in just following the law.
January 5, 2010, 3:37 pmEH says:
Dunno, but it appears they haven’t. Not sure that’s germane, though.
January 5, 2010, 3:58 pmDavid Schwartz says:
I don’t find my argument very convincing anyway. For one thing, “but for” causation is obviously logically wrong no matter what the law says. If three people independently choose to shoot the same person at the same time and each bullet would have been fatal even had it been fired alone, holding them all liable jointly and severally is certainly not unreasonable.
January 5, 2010, 4:13 pmSandy MacHoots says:
“Restitution” is the wrong word here. Restitution involves requiring a party to turn over the benefits he/she got from the other party, such as the profits made from the sale of a video that exploits the minor. But this statute simply creates a statutory tort that carries ordinary tort damages — lost wages, medical care, pain & suffering, etc. It looks like Congress really wants to give the victim in the criminal proceeding an automatic tort remedy for monetary damages, without requiring a jury trial.
January 5, 2010, 4:23 pmRyan Waxx says:
So, what is due the victim if a law enforcement officer distributes the pornography in a sting operation or other means of breaking into a CP ring, which I imagine probably requires new members to post “material” before joining? Is the theory that when a police officer distributes it, the victim doesn’t feel the magically travelling harm in that case?
January 5, 2010, 4:59 pmeyesay says:
So many questions. In a civil case, the rapee-photographee could collect restitution from the rapist-photographer for both the rape and the photographing, but if the rapee-photographee sued a photograph viewer/possessor, would restitution be limited to the psychological damage relating to the photograph, or could the rapee-photographee also collect restitution on the theory that the photograph viewer/possessor was an accessory to the rape? If not, shouldn’t restitution in the criminal case also be limited to the psychological damage relating to the photograph and not the rape?
To what extent are the damages from having been photographed fixed and to what extent do they depend on the number of possessor/viewers of a photograph? Is there a point where the damages stop growing, for example, if the photograph has been seen by two million people, is it twice as bad as if the photograph has been seen by one million people? Do the damages depend on what the viewer did in privacy while or shortly after viewing the photograph? Should the photographee be entitled to discovery on this point? But if the photographee feels more harmed by knowing what the viewer did, doesn’t the harm come from the discovery process itself, and not the viewing?
The class of viewer/possessors can be (1) quite large, (2) difficult to determine and (3) change over time both in the determined and undetermined portions. This makes for a mess. In general, does the first defendant have to pay all of the damages, or should restitution be reduced based on how many subsequent defendants are known and unknown? And how much should each subsequent defendant have to pay?
What if the prosecutor and defendant work out a plea bargain. Does the victim have to approve the plea bargain too? How is that supposed to work?
January 5, 2010, 5:05 pmNotMyRealName says:
I don’t understand why people are so opposed to this idea. Don’t you know that due process doesn’t apply to crimes that make us feel really, really squicked?
Obviously, the real problem is that this law doesn’t go far enough. It should require anyone convicted of child porn to provide restitution to all crime victims across the US. Why limit it to just victims of child porn, when we could require child pornographers to provide restituion to all victims of any crime whatsoever, whether related or entirely unrelated? Who could possibly be opposed to getting tough on child porn? Surely this would be great policy and 100% legal. After all, it’s very simple: child porn bad, victims good.
Won’t someone please think of the children?
January 5, 2010, 5:45 pmKirk Lazarus says:
The law against child pornography flies in the face of libertarian principles.
January 5, 2010, 5:57 pmRyan Waxx says:
What I want to know, is how the victim in question is supposed to be getting harmed by the availability of the pictures. How would she/he know? After all, wouldn’t it be a federal crime for the victim to go rooting around for child porn, even if it is his/her own?
And if you don’t have to show that the person was actually harmed, merely viewed, then can Joan Rivers recover damages from me if I choose to think very, very naughty thoughts about her?
Where does the harm occur, other than at the actual point of abuse? Where does it end? Can his/her children collect, since they’d also presumably be harmed by pictures of her mother being violated? How about a surviving heir, if the victim dies? How many generations down can this go, anyway?
January 5, 2010, 6:06 pmShelbyC says:
You should be able to recover damages from yourself.
January 5, 2010, 6:21 pmADF Alliance Alert » Federal judge demands to know why prosecutors didn’t seek restitution in child porn case says:
[...] How Appealing links to additional reports including one by Minnesota Public Radio. The Volokh Conspiracy carries this related commentary. [...]
January 5, 2010, 6:27 pmRyan Waxx says:
Heh.
January 5, 2010, 6:37 pmSoronel Haetir says:
The scary part is that restitution orders are one of the few areas where I think the victim’s rights movement is going in a good direction. At least when it gets to that point you do in fact have a conviction, rather than a putative victim but possibly no crime or the wrong perpetrator or other condition that makes anointing a victim in front of a jury so troublesome.
January 5, 2010, 7:46 pmSteve2 says:
I’ve never understood how those are “child pornography” cases to begin with. A 16-year-old isn’t a child, and as they made it themself there was no harm to them from the making – which means the whole reason that child pornography’s illegal, the harm done to children by making it, wouldn’t be there even if the 16-year-old were a child.
Anyway… a victim of actual child pornography, possibly the same woman, is seeking the same thing in the Eastern District of Virginia (Norfolk Division). It was covered in this article of the Virginian-Pilot newspaper, which reports that viewers of the child porn are serving longer prison sentences than the adult who actually made the porn of himself raping her… which doesn’t seem like the way things ought to be.
January 5, 2010, 10:13 pmGuy says:
You’re not supposed to apply logic here, we’re talking about punishing pedophiles, you’re not pro-pedophile, are you?
January 6, 2010, 2:06 amAnatid says:
What about the decision to distribute?
Most 25-year-olds would likely consider it harmful to have images of themself naked circulating on the internet, and as a 16-year-old they might lack the foresight to make this judgment call. Once those images go up, they’re never coming down. Somewhere, somehow, they will always be archived. “How will this affect my future” isn’t a question that teenagers tend to ask themselves, as evidenced by the public LiveJournal.
The problem is that, developmentally, sexual function comes online several years before long-term planning does. So even though a 15-year-old might have a mostly-adult body, and is certainly not a child, she doesn’t yet have a mostly-adult mind.
Of course, the slap-on-the-wrist that would be appropriate for such behavior really isn’t in the same category as placing prepubescent children into sexual situations and posting the video on RedTube.
January 6, 2010, 7:07 amDr Nigel Leigh Oldfield says:
Amy is being ‘abused’ all over again, as one of the FBI’s CP poster girls.
Keeerchinggg.
There is no proven, causal, evidence that Vicky/Amy/Jane/Jamie Doe or anyone, suffers any substantial damage (if any) from this issue.
However, for a moment, let us believe (like the courts and other vested interests believe) that there was:
Let, the ‘Pain’ suffered etc by Vicky/Amy/Jane/Jamie Doe knowing ‘her/his’ images are out there, looked at ***millions*** of people = A
Let, the ‘Pain’ suffered etc by Vicky/Amy/Jane/John Doe knowing ‘her/his’ images are looked at by a new defendant (millions +1) = B
What is the contribution of the level of damage, caused by B, in comparison to that caused by A?
Approaching zero, I should suggest. That is the amount of restitution which is required.
NLO
January 6, 2010, 9:40 amADF Alliance Alert » Restitution for victims of child pornography says:
[...] Cassell writing at The Volokh Conspiracy: “Yesterday U.S. District Judge Patrick Schiltz of the District of Minnesota issued an [...]
January 6, 2010, 11:04 ameyesay says:
Dr Nigel Leigh Oldfield wrote, “What is the contribution of the level of damage, caused by B, in comparison to that caused by A? … That is the amount of restitution which is required.”
Perhaps, but if the photographee is able to identify only a small number, say M (possibly one) of the many viewers of the photograph, if we define N as the estimated total number of viewers, your theory seems to be that the M identified viewers should each pay 1/M of the increased ‘Pain’ of having N viewers instead of N-M viewers. One could equally argue that the M identified viewers should each pay 1/M of the ‘Pain’ of knowing that there were M viewers instead of 0 viewers. Why should the viewers pay for being the “last” viewers instead of being the “first” viewers?
January 7, 2010, 3:33 amDr Nigel Leigh Oldfield says:
The argument given, is, that all have contributed equally to the ‘Pain’, whether identified or not.
Thus, every person paying restitution should pay:
The amount ‘required’ / N (total number of viewers)
where N is estimated to be P million, where P >1.
… or even (reducing double jeopardy):
The amount ‘required’ / typical number of views x N (total number of viewers).
where N is estimated to be P million, where P >1.
… or possibly (if you are The Man):
The amount ‘required’ / (N (total number of viewers) / typical number of views))
where N is estimated to be P million, where P >1.
NLO
January 7, 2010, 7:13 amHeather says:
I want to note regarding the lack of physical harm as a result of production of child pornography, such is not necessarily the case. Research shows that adults abused as children have higher rates of cancer and other diseases. However, research has not distinguished between victims where the abuse was recorded or distributed and those for whom it was not, so that is an open question.
Perhaps possession of child pornography could be considered to be similar to receipt of stolen property — in this case, what is stolen is the child’s safety or privacy, or peace of mind or what have you. Thus viewers of pornography are accessories after the fact or facilitators of the act. All viewers of child pornography are aware that the materials they are viewing are the product of illegal acts and are therefore participating in the crime.
With regard to the question of the amount of the settlement, while $3 million sounds high, if the victim requires frequent hospitalization or residential treatment, it is quite possible that costs could exceed $1 million (inpatient psych treatment is in the range of $8,000 per day, I believe).
In terms of the theoretical 16-year-old who is “producing” porn through sexting, this type of case is so uncharacteristic of general prosecution for child pornography that I have to question the motives of the person who cited it. Many molesters claim (and perhaps even believe) that their child victims were complicit in the act. Victims of child pornography do not volunteer to be violated.
March 26, 2010, 1:45 amDr Nigel Leigh Oldfield says:
@Heather …
“Research shows that adults abused as children have higher rates of cancer and other diseases.”
There is no causal, evidential, link between ‘CSA’ and any resultant, claimed, dysfunction. There is manifold anecdotal/media/historical evidence it does not.
Do not misinform the public, by employing ‘science’ incorrectly.
“However, research has not distinguished between victims where the abuse was recorded or distributed and those for whom it was not, so that is an open question.”
Indeed, but since what I say is correct, there is no evidence that there is any antecedent, serious harm. There is manifold anecdotal/media evidence it does not.
“Perhaps possession of child pornography could be considered to be similar to receipt of stolen property”
Again, a fallacious analogy. It is equivalent to possession of or looking at an image in a newspaper, book or on a webpage (cf. news, documentaries, historical pieces etc), so the remainder of your argument fails. An image is not a person.
“requires frequent hospitalization or residential treatment”
The rare ‘medical’ treatment that is related to such claims does not mean that the alleged serious harm arises from the alleged antecedent. Again, since causality has not been proven or even evidenced, you cannot claim it as a justification.
“In terms of the theoretical 16-year-old who is “producing” porn through sexting, this type of case is so uncharacteristic of general prosecution for child pornography that I have to question the motives of the person who cited it.”
Do you believe this causes serious harm. If not, why not?
“Many molesters claim (and perhaps even believe) that their child victims were complicit in the act. ”
They ‘believe it’ because it is true in many, (if not most) cases. The literature, history and anecdotal/media evidence is quite clear on this. Just ask ‘Vicky’.
“Victims of child pornography do not volunteer to be violated.”
Emotive claptrap, as many do, have and will. In any case, a minor has no legal right to provide or withdraw informed consent, so it is a moot point. The adult accepts the responsibility, and is punished as such, if need be.
NLO
March 26, 2010, 2:17 pmHeather says:
When I speak of long-term adverse consequences, I am thinking specifically of the ACE (Adverse Childhood Events) study, a long-term epidemiological study cited on the CDC website. See http://www.cdc.gov/NCCDPHP/ACE/publications.htm. This evidence is far from anecdotal. With regard to children volunteering to participate in production of pornography, I cite the recent case of a Delaware pediatrician who created pornographic pictures of more than 100 children. There is no record that any of those children volunteered to be violated or recorded — indeed, they are shown as resisting and attempting to escape. If cooperation is as pervasive as you claim, why is it not evident in these videos? As you note, even if a child appears to submit, the child is legally unable to give consent — and minors are not able to give consent for a reason, which is presumably that they are unable to take responsibility for their actions.
March 26, 2010, 4:30 pmDr Nigel Leigh Oldfield says:
@Heather …
“When I speak of long-term adverse consequences, I am thinking specifically of the ACE (Adverse Childhood Events) study …”
I have folders of such papers, for and against and all in-between. I look forward to you providing one example which corrects my statement, as given i.e. that ‘CSA’ is causally ‘adverse’.
Not that ‘adversity’ is a ‘bad thing’ per se.
“this evidence is far from anecdotal.”
I never said *that* was.
“With regard to children volunteering to participate in production of pornography, I cite the recent case of a Delaware pediatrician who created pornographic pictures of more than 100 children. There is no record that any of those children volunteered to be violated or recorded — indeed, they are shown as resisting and attempting to escape. ”
One case, even if the details are correct … and? I can quote cases where the opposite is the case (hundreds). A small number of cases means nothing. Plus, what does one criminal case have to do with you trying to justify your position on serious harm?
“As you note, even if a child appears to submit, the child is legally unable to give consent —”
Nor withdraw, ***in law*** (in some places).
“and minors are not able to give consent for a reason, which is presumably that they are unable to take responsibility for their actions.”
That is moralistic dogma (which is fine, if it is recognised as such), minors give actual consent to many things, everyday, including sexual activity (not that it is required, ***in law***).
NLO
March 26, 2010, 4:49 pmDr Nigel Leigh Oldfield says:
@Heather …
You may find this piece interesting …
Abusing Not Only Children, but Also Science
http://www.nytimes.com/2010/01/26/health/26zuger.html
I do not offer it to support my case, or not, at this time.
WM
March 26, 2010, 5:22 pm