Rapporteur contributes to Supreme Court case

The Dutch National Rapporteur on Trafficking in Human Beings and Sexual Violence against Children has been asked to contribute to a case currently pending at the Supreme Court of the United States. The case revolves around the question whether victims of child pornography have a right to restoration from offenders convicted of possession of the abuse images. To inform and assist the Supreme Court in the process of making this important decision, the Rapporteur has filed an amicus curiae brief at the request of the victim’s counsel.

Amicus curiae

The Dutch Rapporteur published the First Report on Child Pornography in 2011, which led to significant changes in Dutch policy. Furthermore, the report resulted in a request for the Rapporteur to get involved with this case at the highest judicial organ of the United States. At the request of the attorney of the victim, she has filed an amicus curiae (‘friend of the court’) brief, in which she pleads for the right to adequate compensation for victims of child pornography. In the Dutch legal system there is nothing comparable to the phenomenon amicus curiae, but American judges are, similar to some international tribunals, often informed by independent third parties on specific issues which are relevant to the settlement of a certain dispute.

Paroline v. United States: the legal issue

Paroline has been convicted of possession of child pornography in 2009 and held liable for the damage of the victim on that ground. Therefore he filed a Petition for a Writ of Certiorari at the Supreme Court against this decision by the United States Court of Appeals for the Fifth Circuit, seated in New Orleans. This is the appellate court for federal cases in the Fifth Circuit; the states Texas, Mississippi and Louisiana.

The particular legal question that the Supreme Court will answer, is whether the Fifth Circuit applied a correct interpretation of the provision 18 U.S.C. § 2259(b)(3). This section prescribes which types of damages could be included in an award of compensation after a conviction for one of the crimes included in 18 U.S.C. Chapter 110: ‘Sexual Exploitation and Other Abuse of Children’. The provision describes several particular types of damages in (A) to (E), followed by a catchall provision (F) that includes: ‘any other losses suffered by the victim as a proximate result of the offense.’  Paroline states that thereby a proximate cause requirement is given, also for the types of damage described in (A) to (E). The Fifth Circuit agreed with the victim by applying an a contrario reading, holding that proximate cause is only required for (F) and therefore not for (A) to (E).

Applying a proximate cause requirement to all types of damages would have the practical consequence that victims cannot be awarded compensation from persons convicted of possession of child pornography.

Opinion of the Rapporteur

In her amicus curiae brief the Rapporteur argues that the Supreme Court should leave the decision of the Fifth Circuit in place. First of all this allows for an interpretation of American law that is consistent with obligations resting upon the United States in accordance with international law. An analysis of the treaties and other international instruments relating to child pornography, creates an image of an evolving international legal norm supporting adequate restoration for victims. Particularly the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography to the UN Convention on the Rights of the Child, specifically article 9(4) of the Protocol, clearly prescribes such a right to compensation.

Furthermore it is essential for the law to evolve in the light of a changing society. Since the digital revolution it is no longer realistic to permanently destroy child sexual abuse images. Pictures and images on the Internet will never be completely removed. Victims are aware of this dreadful side effect of modern technologies. The knowledge that this material, depicting how they were sexually abused, will circulate on the web for the rest of their lives, causes additional psychological damage that can hardly be overestimated. Besides prolonging the initial sexual abuse on the internet this way, victims are often afraid to be recognized by persons who may have viewed the material online. Even victim assistance professionals experience feelings of helplessness when they are confronted with this type of indefinite victimization. Therefore it is justifiable that whoever is convicted of possession of child pornography, is held (jointly and severally) liable for this psychological damage to the victim.

Dutch law

There are not too many known precedents, because victims are not regularly identified in cases of mere possession of child pornography. However, in the Netherlands this type of liability was found by the Court of Appeals in Amsterdam in the infamous case of Robert M., in which his husband Richard van O. was convicted of possession of child pornography. In this case the identities of the victims were known, because they could be linked to the material through the producer M. Therefore joint and several liability of M. and van O. was found for the damage caused by possession, while only M. was convicted of the physical sexual abuse.

Although this is the only precedent in the Netherlands so far, Dutch judges often formulate their judgments in ways which affirm the causal relationship between possession of child pornography and damage to the victims. Most recent convictions for possession include considerations that recognize the partial responsibility of possessors for the maintenance of this extremely harmful worldwide industry. Besides thereby increasing the chance that future sexual abuse of new victims may occur, this exacerbates the suffering of individual victims as well. This way Dutch case law increasingly acknowledges how possession of child pornography cannot be perceived as a victimless crime. With her amicus curiae brief, the Rapporteur tries to convey this position to the highest judicial body in the United States.

Other friends of the court

There are other amici who have made contributions to this important case for victims of child pornography. Among them a large number of organizations advocating children’s rights, such as the National Center for Missing and Exploited Children, American Professional Society on the Abuse of Children, National Association to Protect Children, Women’s and Children’s Advocacy Project, Justice for Children and ECPAT International. Moreover, the Attorneys General of thirty-four out of fifty states have filed a joint brief supporting the victim and seven U.S. Senators have done the same.

The Special Representative of the United Nations Secretary General on Violence against Children, Marta Santos Pais, endorses the mentioned arguments and has therefore included a small paragraph to the amicus curiae brief of the Rapporteur to express her agreement with its contents. Whether the Supreme Court incorporates the position of the Rapporteur into its considerations will become clear next year. The oral arguments are scheduled for January in Washington D.C., and will be attended by the Rapporteur. Later in 2014 the judgment of the Supreme Court is expected.