U.S. Supreme Court justices appeared to struggle Wednesday as they considered how much defendants convicted of possessing images of child pornography should have to pay in restitution to victims.
Advocates for crime victims say the distribution of child pornography has exploded since the Internet made it much easier to exchange digital images.
The change in distribution model, which means the same image may have been viewed thousands of times, has created a problem for judges trying to assess how much restitution each defendant should pay.
Questions posed by the justices seemed to suggest they agreed that all defendants convicted of possessing a copy of the same image should owe something to the victim, but they appeared unsure how to determine how much each should pay.
The court's ruling wouldn't affect the total amount of money that victims can claim in restitution from multiple defendants, but it could mean some defendants end up paying less than others.
The case concerns efforts by a victim — identified only as "Amy" —to seek restitution from Doyle Paroline of Brownsboro, Texas, who was convicted of possessing child pornography that included two images of her. Amy's case is one of several in which victims are seeking restitution from multiple defendants who have obtained images online.
In Amy's suit, she is seeking $3.4 million in total from different defendants. The number is based in part on the lifetime cost of psychological counseling and lost earnings.
Court papers said more than 150 courts have awarded Amy restitution, but Paroline's is the only one before the Supreme Court. Amy so far has collected around $1.75 million, her lawyer, Paul Cassell, told the court Wednesday.
Cassell argued that Paroline is liable for the full amount of her injury, while Paroline says he should be liable only for his individual role.
Throughout the one-hour oral argument, the justices seemed eager to find middle ground that would allow defendants to pay the proportion of restitution that reflected their individual crime.
Several justices pointed out that, under Paroline's attorneys' analysis, defendants in cases involving images distributed online would pay little, if any, restitution.
"The woman has undergone serious psychological harm because of her knowledge that there are thousands of people out there viewing her rape," Justice Antonin Scalia told Paroline's lawyer, Stanley Schneider. "Why isn't your client at least responsible for some of that?"
But the justices also appeared troubled by the argument offered by Cassell, who said that Amy should be able to seek the $3.4 million from each defendant until she recovers it all and that it didn't matter if one paid more than another.
"You are not claiming — or are you? — that she's been victimized to the tune of $3.4 million as a result of this particular defendant's offense?" Justice Elena Kagan asked Cassell.
Amy was sexually abused by an uncle starting in 1997 when she was 8 years old. The uncle made images of the abuse that have been widely distributed on the Internet, which is where Paroline acquired them. Cassell told the court that an estimated 70,000 people had viewed the images.
A federal court initially denied Amy any restitution in Paroline's case, but an appeals court said restitution of the full amount of the loss was required.
A ruling by the Supreme Court is due by the end of June.
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