In the wake of the Supreme Court’s recent thumbs-down ruling on restitution for child pornography victims (Paroline v. U.S), the challenge of how to raise the stakes for child sexual exploitation is back in Congress’ hands again.
“The statute as written allows no recovery,” wrote Chief Justice Roberts in his dissent, “and we ought to say so, and give Congress a chance to fix it.”
But for Congress, “fixing” the flawed law means more than simply ensuring a small group of plaintiffs is compensated successfully. We need a three-part solution that benefits allvictims and makes predators pay the cost of protecting children in the future.
First, a Narrow Restitution Fix
These efforts, according to Marsh, are “strictly limited to Section 2259 fixes,” or the technical problems in the current law that led the court to rule that possessors of child pornography could not held responsible for more than a tiny fraction of the victim’s damages.
This is certainly the place to start. If anyone deserves the right to go into a courtroom and demand restitution at sentencing, victims of child pornography—a human rights crime that is re-inflicted every hour of every day—deserve it, and they need a law that works.
The problem with Congress simply going back and rewriting the existing statute is that the old restitution approach was not a viable route for the vast majority of victims. Plaintiffs’ attorneys report that fewer than a dozen victims have attempted to seek restitution under the law in recent years, despite the fact that tens (if not hundreds) of thousands of Americans have been victimized by child pornographers and their "customers."
Victims such as Amy have shown incredible courage and tenacity in endlessly pursuing justice through the courts. But as the small number of plaintiffs shows, if we really want all victims to be financially compensated, we must make the process simple and straightforward. No attorney should be needed to shepherd the victim through a painful and bureaucratic public process.
Second, A Victim Compensation Fund
The second prong of attack is for the federal government (as well as individual states) to step in and collect on behalf of all identified victims.
The National Association to Protect Children (PROTECT) advanced this idea as early as 2006. Child protection legal specialist and PROTECT national advisory board member, Andrew Vachss called for the federal government, “which has both the resources and the mandate,” to get serious about going after assets on behalf victims, known and unknown.
“The goal is to benefit child pornography victims, penalize the profiteers, and add assets to the agencies charged with enforcing the law.” These three primary objectives should be central to any legislative solution.
The best way to do this is through a special assessment, or criminal fine, levied against all child pornography offenders upon conviction. Justice Sotomayor, in her Paroline dissent, suggests the “statutorily imposed $150,000 minimum civil remedy.”
Revenues raised through this assessment should go two places: to yesterday’s survivors, through a victim compensation fund, and to today’s victims, by funding law enforcement to interdict ongoing atrocities against them.
The obvious Congressional choice for administration of a victim compensation fund is the Office for Victims of Crime (OVC), within the Department of Justice. Law enforcement funding should flow to state, local and federal agencies through both the Justice Department and U.S. Homeland Security.
For victims, applying for compensation should not be characterized by undue red tape.Senator John Cornyn and Rep. Ted Poe have advanced the idea of a process for the Secretary of Health and Human Services to officially recognize victims of “human trafficking” based upon a preponderance of the evidence. A similar approach for victims of child exploitation would allow them to make their case just once to an appropriate law enforcement entity that has access to child abuse material and case information.
We should remember that increasing law enforcement funding is the only way to expand this new funding stream to help survivors—and prevent the creation of morevictims. Fewer than two percent of child pornography trafficking leads are ever investigated, due to sheer lack of resources. More dollars mean more predators out of our communities and more children protected from harm.
Third, Strengthen Asset Forfeiture
Congress should also look closely at asset forfeiture as part of a comprehensive solution. In our effort to make the predators pay, assets should not be left on the table.
There is too much anecdotal evidence to ignore which suggests prosecutors see dollar signs when it comes to drug cases, but ignore such opportunities in child pornography cases. Conversations with federal prosecutors and asset forfeiture lawyers make it painfully clear many don’t even believe there’s much to go after. Some caricature child pornography offenders as losers who live in their parents’ basement, despite knowing full well that this crime transcends all socioeconomic boundaries
Congress will need to look very closely at the mechanisms in place—and still needed—out in the field for identifying and seizing assets in child sexual exploitation cases. Any resources dedicated to asset forfeiture will more than pay for themselves, so lawmakers should be bold in putting new people and offices in place.
The Congressional Research Service should be asked to conduct an in-depth study of asset forfeiture in child exploitation cases, examining what is being derived now from child exploitations cases vs. other types; whether prosecutors are as active in child pornography case seizures as they could be, and if not, why not; what types of financial disclosures and research would result in more assets being identified; and whether the internal process for law enforcement end-users to apply for and receive liquidated assets in a timely and efficient manner can be improved.
Once those liquidated assets are in the Treasury, there are also statutory changes that would cost nothing and make it much easier for law enforcement to acquire and use them in a timely and efficient way. Funds should be available for reoccurring salary costs and available until expended.
Let’s Get it Right This Time
The fight over interpretation of current law has been long and costly, for victims and for taxpayers. Turning a child into a sexual commodity is a human rights violation, and its perpetrators are equally represented in every socioeconomic class. It is long past the time to make the criminals pay.
Grier Weeks is Executive Director of the National Association to Protect Children (PROTECT). He has worked on child sexual exploitation policy and legislation at the state and federal level since 2006.