09/04/2014 09:06 am ET Updated Nov 04, 2014

Nude Celebs and Child Pornography in the Supreme Court

A recent decision by the United States Supreme Court makes it highly unlikely that celebrity victims in the leaked photos scandal can recover meaningful damages from anyone.

On April 23, 2014, the Supreme Court issued its decision in Paroline v. United States which involved compensation for victims of child pornography. Unlike the celebrity victims, the victims in Paroline were young children who were involuntarily raped, sodomized, masturbated, and sexually exploited while being filmed and videoed. The victims in Paroline did not have a choice and never wanted the images of their childhood sexual abuse and exploitation shared with anyone.

The injuries, however, are similar. As the American Professional Society on the Abuse of Children declared last year:

Some children express great concern that other offenders will use the images of their abuse for their own gratification. While some children worry whether friends, peers, parents or others will find the pornography. [Harms] may include shame, embarrassment, fear of being identified, vulnerability from having their abuse filmed, fear that adults are viewing and being sexual with themselves or other children, and the realization that the image of their abuse will last forever on the Internet.

Despite the fact that child pornography is illegal, outlawed, and enjoys no First Amendment protection, the Supreme Court created a compensation scheme which, according to the dissent, offers "piecemeal restitution" and "trivial restitution orders." In other words, the federal restitution law "effectively precluded restitution in most cases involving possession or distribution of child pornography."

Paroline involved criminal cases in which defendants have pleaded guilty to distributing, trafficking, possessing, sharing, and collecting illegal images and videos of child pornography—a far worse offense than viewing legal adult nude images, the majority of which are not even pornographic.

Compensation for these crimes occurs at sentencing which employs a preponderance of the evidence standard just like civil cases. Celebrity victims pursing even the so-called "leaker"—the initial distributor—can expect a difficult if not impossible remedy in the courts which has been made more difficult by the Supreme Court's unworkable Paroline decision.

According to the Court's majority, compensation for "leaked" child pornography is determined as follows:

  • a court should order compensation in an amount that comports with the defendant's relative role in the causal process that underlies the victim’s general losses
  • the amount should not be severe
  • the amount should not be token or nominal
  • the award should be reasonable and circumscribed
  • the award should recognize the indisputable role of the defendant in the causal process underlying the victim’s losses and suited to the relative size of that causal role
  • trivial compensation orders are prohibited
  • the victim should someday collect compensation for all her losses
  • compensation should represent an application of law, not a decision-maker’s caprice

Lower courts must "use discretion and sound judgment" without resorting to a "precise mathematical inquiry," adopting "rough guideposts" for "determining an amount that fits the offense."

In the few months since Paroline was issued, lower courts have struggled to apply this convoluted standard. In a recent child pornography case, one judge declared:

As noted by the dissent, "experience shows that the amount in any particular case will be quite small…. This means that Amy will be stuck litigating for years to come." Such piecemeal results hardly remedy the "continuing and grievous harm" caused by the repeated exploitation of child pornography victims.

United States v. Galan, 6:11-CR-60148-AA, 2014 WL 3474901 (D. Or. July 11, 2014).

Another recent decision illustrates the growing frustration within the federal courts:

Nevertheless, even with the factors provided by the U.S. Supreme Court, this Court has struggled in determining the proper level of restitution…. In this Court’s opinion, while some of the Paroline factors are determinable with some precision, a number of other factors are virtually unknown and unknowable…. For example, how is a district judge to make a "reliable estimate of the broader number of offenses involved" when even the U.S. Supreme Court admits parenthetically that "most of whom will, of course, never be caught, or convicted?" It appears to this Court that some of the factors the Supreme Court suggests be considered are at best difficult, and at worst impossible to calculate in this case as in most similar cases.

United States v. Crisostomi, CR 12-166-M, 2014 WL 3510215 (D.R.I. July 16, 2014)

While the outrage, hand-wringing, guilt, violation, shaming, and blame over the celebrity nude photos leak rages on, victims of illegal child pornography are left empty-handed by the criminals who exploit them daily. Unlike celebrities, however, child victims garner few headlines and even fewer public relations and branding handlers. At least now they are in good company with high profile superstars who are experiencing the same violation, embarrassment, and humiliation that they endlessly suffer.

Congress needs to fix the law for child pornography victims and carefully consider measures to strengthen Internet privacy for everyone. For now justice remains elusive.