How Traditional Criminal Restitution Principles
and Section 2259
Undermine Cleaning Up the
Toxic Waste of Child Pornography Possession
Mary Margaret Giannini
Section 2259 of Title 18 of the United States Code allows courts to award victims of child pornography possession monetary relief from those convicted of possessing images of the victim’s sexual abuse. The statute is grounded in traditional criminal restitution principles that guide that a defendant pay for a victim’s losses which are the result of the specific acts he committed. However, courts have increasingly struggled with applying this construct to the harms and losses suffered by child pornography possession victims. Courts’ restitution awards have been inconsistent, varied, and often non-existent, leading may courts to call upon Congress to revisit the statute and craft a more appropriate remedy for these victims. This article engages in an in depth diagnosis of why courts have become so frustrated with section 2259. It asserts that when Congress passed the statute, it did not fully consider the nature of the harm suffered by victims of child pornography possession. The harms suffered by these victims are ongoing and caused by an ever growing body of independently acting defendants, leaving the victims in a constant state of disaster response, rather than mere disaster recovery. The victims’ continued and compounding harms, coupled with the infinitely growing number of potential defendants who cause those harms, are mismatched for the more static nature of the criminal restitution framework which is better suited to address a completed harm by a finite and identifiable number of defendants. Through a thorough examination of the law undergirding criminal restitution, as well as examining a number of the key child pornography possession restitution cases in depth, this article brings into full light how these harms are not best addressed by section 2259. By clearly articulating the problems courts have with the statute, this article highlights the issues Congress must take into account as it seeks to craft a more appropriate remedy for victims. In particular, the article suggests that in somewhat similar fashion to how Congress has addressed multiple defendant liability for cleaning up environmentally contaminated properties, Congress treat child pornography possession akin to a strict liability crime for which a set legislative remedy is provided to victims.
- Child pornography,
Available at: http://works.bepress.com/marymargaret_giannini/2/