What follows was found at the Pittsburgh Post-Gazette online
here.
'Amy' seeks restitution from viewers of sex abuse
Sunday, April 11, 2010
By Paula Reed Ward, Pittsburgh Post-Gazette
As of last week, the woman known as "Amy" in every federal district court across the country had received almost 1,000 notices that she had been identified as the victim of a crime.
They are a thousand separate reminders of the horrific sexual abuse she suffered at the hands of her uncle -- who also photographed the acts -- when she was just 8 and 9 years old.
And those are likely just a drop in the bucket for what Amy will experience in her lifetime.
Pornographic images taken of her and distributed on the Internet in what is now called "The Misty Series" continue to circulate 12 years later.
Now, at age 20, she has filed requests in nearly 400 criminal cases asking that she receive restitution from any defendant convicted of viewing those pictures.
Last April, her attorney, James R. Marsh of New York, filed the first request in Connecticut. He filed a similar claim in Pittsburgh in February in the case against Kelly Hardy of New Castle.
Mr. Hardy pleaded guilty in October to receipt, possession and distribution of child pornography.
Because of the large number of images found in his home -- there is no official count, prosecutors said, because it would have been impractical to try to catalog the many thousands he had -- Mr. Hardy is likely to be sentenced to 30 years to life in prison. He also could be held accountable for the $3.2 million sought by Amy.
U.S. District Judge Nora Barry Fischer has not yet ruled on the issue in Pittsburgh.
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The idea of restitution is to make crime victims whole. But in Amy's cases, the question is whether the act of simply "possessing," or looking, at the illegal, pornographic images in which she appeared is directly responsible for the harm she has suffered and will continue to suffer in the future.
Mr. Marsh -- and most federal prosecutors --agree that it is.
But defense attorneys across the country argue that the "proximate cause," of harm to Amy and other victims of child pornography occurred at the time of the actual sexual abuse.
Though the issue has been litigated in several district courts -- with hugely disparate results -- it has not been decided by any appeals court.
Until that happens, individual district judges have no binding legal guidance on which to base their opinions.
In California, Virginia and Alabama, for example, district courts have fully denied restitution requests by Amy.
In the District of Connecticut, a federal judge ordered a man guilty of possession of child pornography to pay $500 in restitution.
But in the Northern District of Florida, a judge awarded Amy the full amount of her request: $3.2 million to cover lost wages and the costs for lifetime counseling, as well as expert and attorney's fees.
That case, along with another, is on appeal to the 11th U.S. Circuit Court of Appeals.
"It's about good law in the area," Mr. Marsh said. "We're taking a cautious approach."
As part of his argument in favor of restitution, Mr. Marsh says his client continues to be victimized simply because her images are available for viewing online.
Analysts for the National Center for Missing and Exploited Children, as of July, had encountered photographs of Amy in more than 3,227 evidence reviews in child pornography investigations.
"Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again," Amy wrote in her victim impact statement.
"It hurts me to know someone is looking at them -- at me -- when I was just a little girl being abused for the camera. I did not choose to be there, but now I am there forever in pictures that people are using to do sick things."
But the federal public defender, W. Penn Hackney, who is representing Mr. Hardy in the local case, wrote in a court brief that "conflating the actual abuse and initial production of child pornography with receipt and distribution ... makes little sense in terms of basic conceptions of morality and blameworthiness."
Further, he argues, Amy filed her initial request for damages in Connecticut even before Mr. Hardy was charged. Therefore, he said, Amy had already suffered that harm, and his client should not be held responsible.
When investigators searched Mr. Hardy's home in April 2009, they found 14 desktop computers, three laptop computers, 60 hard drives, more than 4,000 compact discs and digital versatile discs, more than 3,000 floppy disks, 8 thumb drives and 36 zip disks.
In addition, they found 33 pairs of young girls' underwear, which Mr. Hardy told officers he had taken from the homes of friends and acquaintances.
Jonathan Turley, a law professor at George Washington University, believes requiring restitution for possession is the wrong way to go -- but not because of the moral question. For him, it's a pragmatic one.
"Most of my objection to this new trend is that it could create a serious and negative impact on the legal system as we expand restitution to an unprecedented scope," Mr. Turley said.
Restitution demands would increase infinitely. In all federal district courts in Fiscal Year 2009, according to the Department of Justice, 1,448 defendants were charged with possession, receipt or distribution of child pornography.
"Defendants download hundreds or thousands of images with a single click of a mouse," Mr. Turley said. "Literally, one click brings a library of images."
That, he said, means that potential punishment for defendants in child pornography cases could radically increase.
Such defendants already face lengthy prison terms, and increasing the number of people who pay restitution would be a "logistical nightmare for courts," Mr. Turley said.
"There's no question that reproducing these images produces harm," he said. "[But] under this definition, victims could literally sue millions of people forever."
But in an October letter to the Administrative Office of the U.S. Courts, Assistant Attorney General Lanny A. Breuer said such a consideration isn't relevant.
"We urge you not to let these practical and administrative challenges drive a policy position that directly or indirectly suggests that possession of child pornography is a victimless crime," Mr. Breuer wrote.
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Analyzing Amy's case shows that can't be true.
According to a psychological report, Amy continues to suffer post-traumatic stress symptoms, including unconscious avoidance, anxiety, anger and a lack of self-confidence. Amy, who lives in central Pennsylvania, also reports having difficulty with trust and feelings of love.
Though she enrolled in college, she ended up dropping out after watching a video in a psychology class about child abuse.
She repeatedly talks about physically withdrawing -- by staring into space and completely losing track of her surrounding.
She self-medicated with alcohol for much of her adolescence, and though she tries to maintain sobriety, she is not in treatment for it.
Dr. Mary Carrasco, an expert in child sexual abuse and the director of A Child's Place at Mercy, said the response to such abuse can vary widely.
"Some kids are just totally devastated," she said. "They don't know who's looked at it. They can't hold their heads up."
Among their feelings, Dr. Carrasco said, are self-blame and guilt for not being able to stop the abuse.
Amy has expressed both of those emotions.
However, Mr. Marsh added, by filing for restitution in these cases, his client is beginning to feel empowered.
"Through the restitution, she feels she's going from a victim to someone who's taking control of her life."
Amy now has a 6-month-old baby, and has expressed an interest in taking online college classes.
Still, she doesn't make much in the way of long-term plans.
"Most of her life is spent coping day to day," Mr. Marsh said.
Amy thought she might have been a schoolteacher. Part of her restitution claim is for lost wages she might have earned from that position.
While she has filed more than 400 restitution claims, Amy has received court orders in only about 20 districts. So far, she has collected money from about a half-dozen defendants, raising $266,000.
Among those who have been made to pay are a former law enforcement officer and a man who worked in a lumber yard, Mr. Marsh said.
Under the requests for restitution, once Amy receives the entire $3.2 million she is asking for, she would no longer file any new claims. For his part, Mr. Marsh is only being paid an average of about $3,500 per claim filed.
It's not a windfall, Mr. Marsh said. For Amy, who has no health insurance and is living on public assistance, restitution will be simply a means of compensating her for her inability to work at a full-time, professional job because of the harm done to her, he said.
"You have millionaires going to prison, and taxpayers funding their treatment. And then you have the victims with zero," Mr. Marsh said. "The social costs here are huge on both sides of the equation, and this is really just a way of equalizing the treatment of victims in the criminal justice system."
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