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The National Law Journal - Sixth Circuit: Child porn restitution orders must be based on individual culpability - March 1, 2013
Paul Cassell, a criminal law professor at the University of Utah S.J. Quinney College of Law, who filed a brief for amicus Vicky and participated in oral argument, said he's aware of three pending petitions for certiorari to the U.S. Supreme Court on this issue.
"We think that Congress commanded that each defendant is jointly and severally liable for the full amount of their losses as the Fifth Circuit en banc has recently ruled," Cassell wrote.
The Salt Lake Tribune - Utahn joins new restitution push for child porn victims - February 1, 2013
In a relatively new tactic in Utah, Vicky is asking the court to order Dunn to pay her restitution for the years of therapy she has needed and lost income from the months and years she was unable to work.
Among those leading that charge is Paul Cassell, a former federal judge and now a professor at the University of Utah law school who is donating his time on Vicky’s case.
Cassell is joined in the legal proceedings by Carol Hepburn, Vicky’s attorney, and James Marsh, a children’s rights lawyer in New York.
The Boston Globe - Victims of child pornography seek restitution from men who downloaded and traded horrific images - December 27, 2012
New York attorney James R. Marsh, a pioneer in the restitution effort, said more victims do not seek damages because they are afraid and embarrassed.
His client, identified in court documents as Amy, was molested repeatedly by her uncle from the age of 4. Images of those attacks have been located on the computers of more than 1,600 defendants.
Marsh seeks $3.4 million in lost wages, medical costs, and other damages on behalf of his client. He said he has prevailed in more than 170 rulings totaling about half that amount since 2008.
Amy, in her 20s and living in rural Pennsylvania, declined to talk to the Globe.
In court papers, she said it is difficult for her to concentrate, study, or keep a job.
“I live in constant fear that someone will see my pictures and recognize me, and that I will be humiliated all over again,” she said in a victim impact statement.
“It’s hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my abuser, and is getting some kind of sick enjoyment for it.”
The Dallas Morning News - Texas court case raises question of whether child-porn viewers should pay restitution to rape victim - November 14, 2012
In the last four years, Cassell and co-counsel James R. Marsh of New York have filed hundreds of requests for restitution on Amy's behalf, always asking for about $3.3 million from each viewer, primarily for "future psychological care and future lost income."
With the money she's already collected, she bought a house, has saved money for her son's education and undergoes therapy several times a week, said her attorney, James Marsh.
She even attended oral arguments at the 5th Circuit several months ago, an experience Marsh said she finds "empowering."
The BLT: The Blog of LegalTimes - In Child Pornography Case, Court Struggles Over How to Compensate Victim - November 7, 2012
In an interview, one of Amy's attorneys, James Marsh of The Marsh Law Firm, said that he submitted a memorandum dated October 10 asking for the full restitution amount of $3.37 million. As an alternative, Marsh requested a minimum restitution amount of $150,000 in accordance with a law that provides relief to victims of child pornography. Marsh said he was unsure if Kessler failed to receive the memorandum from Assistant U.S. Attorney David Kent. Overall, Marsh said that he was "a little bit perplexed" by Kessler's memorandum order. "The victim is entitled to the full amount of her losses," Marsh said.
American Bar Association Journal – Pricing Amy: Should Those Who Download Child Pornography Pay the Victims? – September 1, 2012Amy and her lawyer are, however, fighting back. Her battle is part of a series of cases—now wending their way through the federal courts—trying to help the victims of child pornography by seeking financial restitution, not from the perpetrator but from the untold number of people who subsequently download their pornographic images.
Amy could be considered the leader in this legal trend. Her pictures are among the most widely traded in the underground world of online child pornography.
Under the Crime Victims' Rights Act, the government must notify Amy and other child pornography victims anytime anyone is arrested by federal authorities for possessing their images. Her attorney, James Marsh of New York City, says his office has received at least 1,500 required notices of federal prosecutions for possession of those images. "The day after we were retained in 2008, we had someone open up all these notices she received in the calendar years 2006 and 2007," Marsh says. "It took two days just to open the envelopes."
Using the restitution provisions of the Violence Against Women Act, Marsh has begun utilizing the courts to request financial restitution from those convicted of possessing images of Amy's child sexual abuse.
The novel and controversial requests don't seek to hold possessors responsible for the original exploitation of Amy. Rather, they seek restitution under VAWA, as authorized by the Crime Victims' Rights Act, for harm done to Amy each time someone downloads her uncle's pornographic images of her.
Detroit Free Press - Restitution sought to care for kids whose moms used them to make porn - April 2, 2012
Prosecutors and lawyers nationwide have successfully sought restitution orders in child pornography cases under a provision in the 1994 Violence Against Women Act, which allows for such restitution. The law, however, has taken years to catch on.
"For about 20 years, it sat there basically unused, mostly because victims of child pornography only recently became aware that they were victims," said New York attorney James Marsh, founder of the Children's Law Center in Washington.
Marsh said restitution in child pornography cases has been a growing trend in recent years, although he didn't have numbers. His law firm, for example, has collected more than $2 million in restitution from 100-plus defendants in child pornography cases.
The New York Times - Court Rejects Restitution for Victim in Porn Case - September 8, 2011
A victim of child pornography seeking restitution should not receive court-ordered payments from those who possessed the images but had no hand in creating them, a federal appeals panel ruled Thursday. The young woman, referred to in court papers as Amy, was known as "Misty" in pornographic images created by her uncle. The uncle was convicted and imprisoned on child pornography charges, but the images continue to be widely circulated and downloaded.
Since then, Amy's lawyers have entered pleas in hundreds of child pornography possession cases around the country seeking payment for their client's lost wages and counseling through federal criminal restitution statutes, asking for more than $3 million in each case. They have submitted nearly 700 of these pleas, and have recovered $345,000 so far.The Second Circuit decision may be the toughest of several recent rulings in cases involving Amy; a decision out of the 11th Circuit upheld the restitution award, while others have denied payment.
Paul G. Cassell, a former federal judge and Utah law professor who has joined Amy's legal team for appellate argument, said that with federal circuits divided, "we are hoping the Supreme Court will step in to resolve the issue and enforce the law as we think it was written — and not impose this impossible burden on crime victims to trace out to each and every defendant what exact percentage of the law was attributable to them."
The Times Leader - Battle against 'net child porn sees new front - May 15, 2011
Hepburn and James Marsh, a New York attorney who represents a victim in another popular child pornography collection, known as the "Misty" series, have filed dozens of requests for restitution against child pornography defendants nationwide, including several defendants who were prosecuted in the Middle District of Pennsylvania.
In December, U.S. District Judge John Jones ruled that the victim in the "Misty" series, who was sexually abused by an uncle at age 8, was entitled to restitution from Michael Brown of Lebanon County. In March, U.S. District Judge Christopher Connor also ordered Ronald Barkley of Harrisburg to pay damages to the "Misty" victim.
Federal judges in other states have split on the issue. The "Misty" victim has sought restitution in 22 cases nationwide, according to court papers filed by the U.S. Attorney's office in Brown's case. Of those, 15 have been granted and seven have been denied.
In both the "Vicky" and "Misty" cases, Hepburn and Marsh have sought damages for the emotional trauma, as well as the cost of past and future counseling and lost wages the women have suffered due to their difficulties in overcoming the trauma to establish a normal life. The amount of the awards has varied greatly, from nominal amounts to hundreds of thousands of dollars.
Fort Worth Star-Telegram - Use of restitution law on behalf of sex abuse victims raises philosophical questions - May 4, 2011
Aggressively seeking restitution from people who've only viewed child porn but haven't produced or distributed it is a tactic that Warren Richey, writing in The Christian Science Monitor, credited to Amy's lawyer, James Marsh of White Plains, N.Y.
The strategy has split the federal courts, so the litigation will end up at the U.S. Supreme Court.
The BLT: The Blog of LegalTimes - D.C. Circuit: Child Pornography Victim Owed More Restitution - April 19, 2011
A victim in a child pornography case who is seeking nearly $3.3 million in restitution from the man caught with an image of her will get a second chance to try to convince a federal trial judge in Washington to award more than the $5,000 in compensation that was initially ordered.
The U.S. Court of Appeals for the D.C. Circuit today vacated the trial judge's "nominal" $5,000 restitution award and sent the case back to the U.S. District Court for the District of Columbia for further proceedings.
Cassell, a lawyer for the victim, said this afternoon that the D.C. Circuit decision widens the divide among federal appellate courts over issues concerning the rights of crime victims. Among other things, Cassell said the decision places an "impossible burden" on crime victims and federal trial judges to sort out the cause of a victim's harm.
Washington Post - Appeals court ruling in Texas case could ease path for child porn victims to get restitution - March 25, 2011
HOUSTON — Victims of child pornography around the country could have an easier time getting restitution from those convicted of possessing such images, according to a federal appeals court ruling this week in a Texas case.
But legal experts say the issue now may have to be decided by the U.S. Supreme Court because courts throughout the United States are split on how to award such compensation.
The 5th U.S. Circuit Court of Appeals on Tuesday ruled that federal restitution law doesn't generally require victims to specifically detail how an individual defendant has harmed them in order to receive restitution.
"It's a big deal," Jeff Bellin, a law professor at Southern Methodist University in Dallas, said of the 5th Circuit's ruling. "This is clearly the most significant victory that proponents of this type of interpretation (of restitution law) have had in the courts so far."
If victims like Amy had to specifically detail all the losses they have suffered as a result of individuals like Paroline, "they would basically get nothing," said Paul Cassell, one of Amy's attorneys.
Cassell, who also is a law professor at the University of Utah, said individuals like Paroline harm victims simply by viewing images of them.
"It's psychiatric death by a thousand cuts because she is being harmed over and over again by these faceless, nameless criminals who are looking at these images over and over again," Cassell said.
Cassell said about a third of the $3.4 million Amy is asking for, which is paying for lifetime counseling costs and lost income, has already been recovered from other claims around the country.
National Law Journal - Porn victims demanding restitution - February 7, 2011
The attorneys for the victim in the Washington case, solo practitioner James Marsh of White Plains, N.Y., and Paul Cassell, a former federal judge who teaches at the University of Utah S.J. Quinney College of Law, are pressing forward with an appeal in Washington challenging Kessler's restitution order issued last month. The lawyers filed two appeals on Jan. 25 in the D.C. Circuit — one a direct challenge of Kessler's order and the other asking the appeals court to order the trial judge to award the full amount of restitution.
Calling the case's legal issues complex and novel, judges Douglas Ginsburg, Judith Rogers and Thomas Griffith agreed to expedite the litigation. The court is scheduled to hear the closely watched dispute on Feb. 7. "The D.C. Circuit has the opportunity here to really frame the law and issue a precedent-setting ruling on how much restitution victims like Amy should get," Cassell said. "The law is clear that district judges have to award restitution. There's been a real split of opinion on whether victims like Amy should get the whole figure."
Cassell said it's unlikely Monzel has the means to cut a check for the full amount of restitution. But, Cassell said, when Monzel is released from custody in a decade and enters the work force, every dollar he pays to the victim will add up.
"This isn't really about the money," Cassell said. "This is about the principle of protecting the rights of crime victims."