Big Porn Inc: Exposing the Harms of the Global Pornography Industry
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Those who download child pornography often know exactly what harm they are doing. For example, a young US college student arraigned on child pornography charges who saw Masha on TV and realized that he had seen her pictures online, said, “It made me feel like an evil monster – as if I had helped in hurting her” (Koch, 2006). The young man was right; he had helped to hurt her.
The possibility of gaining justice for those hurt by child pornography has been explored in the United States in other ways as well. A section of the US Code enacted in 1994 provides for Mandatory Restitution in cases involving certain crimes, including child pornography and sexual exploitation (18 USC § 2259). Under this statute, US federal courts have a duty to order defendants to pay “the full amount of the victim’s losses” following successful criminal prosecutions, including those for possession of child pornography.
The case of Amy (a pseudonym) involved a little girl sexually assaulted by her uncle who then uploaded images of the abuse. Amy tells her story in the next chapter of this book. The man was arrested and convicted, but the images (known as the ‘Misty Series’) continue to circulate on the Internet. The ‘Misty Series’ of images was viewed by at least 8,800 Internet users in 2009 alone; unfortunately, this figure is likely to be only a fraction of the total number of viewers. Amy first became aware of the circulation of her images when she received victim notifications from the US government, as mandated by the Crime Victims Rights Act. Amy’s lawyer, James Marsh, is asking that each person found guilty of possessing even a single image of Amy’s abuse pay restitution until her total claim of over US$3.4 million is paid. This amount includes her losses, costs for future psychological care, future lost income, and attorney’s fees (see Schwartz, 2010).
James Marsh contends that each person found guilty of Amy’s violation through pornography should be ordered to pay the full amount of restitution, under the legal doctrine of ‘joint and several liability’.4 This approach entails that a victim would stop collecting restitution once the full amount of damages claimed is paid; those held responsible for the acts could then sue others who are found culpable so as to recoup any over-payments of their proportionate contribution. Amy’s court filings have been emailed to US Attorneys in over 500 child pornography cases, many of whom have filed restitution claims for Amy.
For example, in February 2009, in the state of Connecticut, the US District Court Judge Warren W. Eginton indicated that Alan Hesketh should pay a total of US$200,000 to Amy. Hesketh was a British citizen and a vice-president and global patent director of the pharmaceutical firm Pfizer (Hesketh, 2009). Hesketh was held responsible even though he had played no direct part in the originating production or initial uploading of Amy’s images; he had traded the images while posing online as a 28-year-old woman named ‘Suzybibaby’. Amy received US$130,000 in a settlement reached with Hesketh (see also Rothman, 2011, pp. 349–350), the first time the possession of child pornography images involved payment of restitution to the victim.
Later in 2009, in 2 separate Florida cases (Freeman, 2009, and Staples, 2009), men convicted on child pornography charges were ordered to pay almost US$3.3 million and US$3.7 million respectively to Amy (also see Rothman 2011, p. 335). The former case involved an international network of child pornography which was uncovered in part through the efforts of Australian police (Department of Justice, 2009). By mid-2010, Amy had received about US$236,100 from 10 defendants (Edwards, 2010).
Amy’s claims have met some setbacks however. For example, in a Texas court in 2009, a Request for Restitution of around US$3.4 million was made from a man called Doyle Paroline who had pleaded guilty to child pornography charges. The Request was denied with the judge finding that the argument had not been successfully made for the ‘proximate causation’ of injury resulting from possession of Amy’s images by Paroline, as distinct from other viewers of her pictures (Paroline, 2009, and In re Amy, 2009; see also Rothman 2011, p. 335, pp. 351–353). In March 2011, however, that decision was overturned by the Texas Court of Appeals, and the case was sent back for Amy’s damages to be determined on the basis that Paroline could be held financially responsible for injury to Amy (In re Amy Unknown, 2011).
Through the efforts of Amy and her lawyers, a valuable body of case law and argumentation has been built up. Even temporary setbacks like the 2009 Paroline decision have in turn provided opportunities to clarify different aspects of the law on restitution. In that sense, the courage and perseverance of Amy and her defenders provide a basis on which other countries might work out and implement similar approaches to civil justice for victims of child pornography.
Another group of attorneys in the United States has begun to open up further opportunities for claiming civil damages for the victims of child pornography. For example, in 2010 the firm of Jeff Anderson & Associates filed suit in a Minnesota District Court on behalf of a man who was 9 years old when images of his sexual abuse were originally produced. The defendants in the case include Gregg Alan Larsen, a schoolteacher and foster care provider, and 100 unnamed ‘downloaders’ who received and/or viewed the boy’s images (Forliti, 2010). Larsen was sentenced in November, 2010, for producing and possessing child pornography. Four civil claims have been filed against Larsen on behalf of children who were in his care.5
The approaches in search of justice for child pornography victims mentioned in this chapter differ in important ways. But the striking common feature of all these approaches is that the viewers and possessors, and not merely the original producers, of abuse materials can be held accountable in financial as well as penal terms for the damage that their actions do. Importantly also, such claims for damages and restitution shift the financial burden of the crimes onto convicted criminals, and away from the victims of crime and away from the public more broadly. In that sense, what can be seen here is the emergence of a ‘civil rights’ approach to child pornography, capable of being used in other countries to address the global trade in abuse.
I conclude by noting that such an approach, whatever its variations in form, is not without controversy. Some academic writers like Amy Adler have criticised the approach, asserting that a problem with cases involving claimants like Amy is that those convicted of possession of images seem to be penalised as much or even more than those who physically assault the child and originally produce the images. Adler notes, for example, “Not to excuse what the downloaders do and their complicity, but the actual abuser, the person who took the picture is worse. He actually harmed the child” (quoted in James, 2010; see more broadly Adler, 2001).
Adler draws attention to what she sees as a loss of perspective in such cases, with the possibility of people being prosecuted for possessing pictures of a child in a bathtub. James Marsh replies:
There’s a real disconnect on what the true nature of child porn is … 99.9999 percent of the material I deal with features pre-pubescent children being raped … the most graphic hardcore images you can imagine. People think downloading a picture of a baby in a bathtub is going to send them to prison. That’s not what we’re talking about (quoted in James, 2010).
Marsh noted that “[i]n one notorious set of images, the father used to put a studded collar around his 6-year-old and wrote on her in what looked like blood, ‘I am Daddy’s little girl, rape me.’ He locked her in a dog cage” (quoted in James, 2010).
In a child pornography case involving a student at my own university in Sydney, the materials at issue included “videos of a baby bound and sexually assaulted, a two year old girl subjected to anal intercourse, numerous images of young girls apparently heavily sedated being sexually assaulted and a girl under ten bound and subjected to an act of anal intercourse while crying with the pain” (Puhakka, 2009). On appeal, the student’s gaol term was reduced, in part because of his young age.
Among some academics like Amy Adler, there is not only a disconnect with the actual character of the material that is globally trafficked. There is also a disconnect with how child pornography does its
work of harm and injury. Each viewer who delights in such images participates in the abuse of the child in the image. Amy’s Victim Impact Statement, reprinted in the next chapter, emphasises this point: “Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them – at me – when I was just a little girl being abused for the camera.” And each viewer who gets off on that abuse should pay the price of making that little girl whole again.6
Bibliography
Adam Walsh Child Protection and Safety Act, Public Law 109–248, § 707,
Adler, Amy (2001) ‘The Perverse Law of Child Pornography’ Columbia Law Review 101 (2), pp. 209–273.
Akdeniz, Yaman (2008) Internet Child Pornography and the Law: National and International Responses. Ashgate Publishing, Aldershot.
Allen, Masha (3 May, 2006a) Testimony submitted to the [US Congress] House Energy and Commerce Committee Subcommittee on Oversight and Investigations, ‘Sexual Exploitation of Children over the Internet: What Parents, Kids and Congress Need to Know about Child Predators’,
Allen, Masha (2006b) Victim Impact Statement,
Amar, Akhil Reed and Daniel Widawsky (1992) ‘Child Abuse as Slavery: A Thirteenth Amendment Response to DeShaney’, Harvard Law Review 105, pp. 1359–1385.
Crime Victims Rights Act [US],
Department of Justice [US] (9 July, 2009) Press Release ‘Man Ordered to Pay Restitution to Victim in International Child Exploitation Case’,
Edwards, Amy L. (29 June, 2010) ‘Prosecutors Pursue Restitution for Child-exploitation Victims’. Orlando Sentinel,
[Falso] Letter Brief, Plaintiff’s Application to Proceed under a Pseudonym, re An Individual Known to the Defendant as 08MIST096.jpg and 08MIST067.jpg v Falso 2009 WL 4807537 (NDNY).
Forliti, Amy (26 May, 2010) ‘Minn. Lawyer Aims to Track, Sue Child Porn Users’,
[Freeman] US v Freeman No 3:08CR22-002/LAC (ND Fla. 9 July, 2009).
[Hesketh] US v Hesketh No 3:08-CR-00165-WWE (D.Conn. 23 February, 2009).
[ICMEC] International Center for Missing & Exploited Children (2010) Child Pornography: Model Legislation & Global Review, 6th Edition,
In re Amy 2009 WL 4928376 (CA5 (Tex)),
In re Amy Unknown, No 09-41238 (5th Cir, 22 March, 2011),
James, Susan Donaldson (8 February, 2010) ‘ “Misty Series” Haunts Girl Long After Rape’,
Koch, Wendy (2006) ‘Kids Can Be Victims or Violators’, USA Today, 17 October, 2006, p. A13.
Marsh, James (2007) Statement Regarding Masha Allen and Peter Sotos: Show Adult,
[McDaniel] US v Ricky Lee McDaniel No 09-15038 (11th Cir, 28 January, 2011),
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, adopted 25 May, 2000, UN Doc A/RES/54/263 (2000), 2171 UNTS 227 (entered into force 18 January, 2002),
[Paroline] US v Paroline 2009 WL 4572786 (ED Tex),
Pringle, Helen (2011) ‘Cartoon Wars: The Interpretation of Drawn Images’, paper presented to International Conference of the Indian Association for the Study of Australia (Eastern Region), Kolkata.
[Puhakka] Puhakka v R [2009] NSWCCA 290,
Rothman, Jennifer (2011) ‘Getting What They Are Owed: Restitution Fees for Victims of Child Pornography’ Cardozo Journal of Law and Gender 17 (2), pp. 333–357.
Schwartz, John (2 February, 2010) ‘Child Pornography, and an Issue of Restitution’, New York Times
[Staples] US v Staples 2009 WL 2827204 (SD Fla. 2 September, 2009).
US Congress (2006) Sexual Exploitation of Children over the Internet: Follow-Up Issues to the Masha Allen Adoption, Hearing before the Subcommittee on Oversight and Investigations of the Committee on Energy and Commerce, House of Representatives, 109th Congress, Serial No 109–145
[USC] US Code
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1 For example, cartoons and digitally altered material, and manuals of child abuse, do not necessarily involve the direct abuse of children in their production (see Pringle, 2011).
2 I would like to thank James Marsh of the Marsh Law Firm PLLC for his generosity in providing me with materials as well as invaluable suggestions and comments for this chapter. I would also like to commend his grace and courage, and that of the children, young and old, whom he supports and defends.
3 James Marsh kindly provided me with a copy of chapters from this book.
4 The responsibility in this context of Internet service providers (ISP) for material hosted is as yet unclear. See on this question more broadly, Akdeniz (2008, Part Three).
5 I would like to thank Patrick Noaker of the firm of Jeff Anderson & Associates for his helpful comments (personal communication, March, 2011).
6 I am persuaded by the argument of Amar and Widawsky (1992) that we should treat child abuse as slavery; the implications of that argument for child abuse materials is a topic for further exploration.
Amy
The Victimisation of Children by Pornography: Victim Impact Statement of Amy
Introductory note by Helen Pringle
In this Statement, Amy (a pseudonym) tells her story. Amy was a victim of sexual abuse by her uncle. He later uploaded images of the abuse, picturing a little child being forced to perform sexual acts with an adult man, including oral and anal penetration, and masturbation. Amy’s images became known as the ‘Misty Series’, which have been globally trafficked since the late 1990s. Amy’s uncle was convicted of sexual abuse and sentenced to a prison term. She is now seeking restitution for the further victimisation by those who trade in the images of her abuse on the Internet. This Statement was written in 2008, and has been put forward in Amy’s claims for Restitution in US courts since then. It is reprinted here with kind permission of James Marsh, Esq. of the Marsh Law Firm PLLC, Amy’s counsel.
Amy’s Victim Impact Statement
I am a 19-year-old girl and I am a victim of child sex abuse and child pornography. I am still discovering all the ways that the abuse and exploitation I suffer has hurt me, has set my life on the wrong course, and destroyed the normal childhood, teenage years, and early adulthood that everyone deserves.
My uncle started to abuse me when I was only 4 years old. He used what I now know are the common ways that abusers get their victims ready for abuse and keep the
m silent: he told me that I was special, that he loved me, and that we had our own ‘special secrets’. Since he lived close to our house, my mother and father didn’t suspect anything when I walked over there to spend time with him.
At first he showed me pornographic movies and then he started doing things to me. I remember that he put his finger in my vagina and that it hurt a lot. I remember that he tried to have sex with me and that it hurt even more. I remember telling him that it hurt. I remember that much of the time I was with him I did not have clothes on and that sometimes he made me dress up in lingerie. And I remember the pictures.
After the abuse he would take me to buy my favorite snack which was beef jerky. Even now when I eat beef jerky I get feelings of panic, guilt, and humiliation. It’s like I can never get away from what happened to me.
At the time I was confused and knew it was wrong and that I didn’t like it, but I also thought it was wrong for me to tell anything bad about my uncle who said he loved me and bought me things I liked. He even let me ride on his motorcycle. Now I will never ride on a motorcycle again. The memories are too upsetting.
There is a lot I don’t remember, but now I can’t forget because the disgusting images of what he did to me are still out there on the Internet. For a long time I practiced putting the terrible memories away in my mind. Thinking about it is still really painful. Sometimes I just go into staring spells when I am caught thinking about what happened and not paying any attention to my surroundings.
Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them – at me – when I was just a little girl being abused for the camera. I did not choose to be there, but now I am there forever in pictures that people are using to do sick things. I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop my uncle.