Child pornography production, distribution, and possession are condemned in American law. This includes long prison terms under federal law for those who commit child pornography crimes; the loss of liberty and reputation can be profound.
But criminal penalties are not the only grave consequences of possessing child pornography. Anyone who possesses child pornography is also exposed to civil suits for money damages—and a federal law makes those suits especially expensive.
Criminal vs. Civil Restitution
When someone is convicted of crime, the court can order them to pay restitution to the victim. This is part of sentencing; criminal restitution is usually ordered along with time in custody or on probation. Criminal restitution is typically limited to easily-quantifiable costs. For example, a defendant can be ordered to pay counseling costs or medical bills. Losses that are difficult to quantify, such as “pain and suffering,” usually cannot be recovered through criminal restitution.
Losses that are difficult to quantify can instead be recovered through a civil lawsuit. Even a defendant who has fully paid their criminal restitution can face a lawsuit to recover the victim’s losses not included in that restitution. (The victim cannot, though, recover damages for losses already reimbursed through criminal restitution. Double recovery is not allowed. Payments made in restitution will be credited against any damages the victim obtains in a civil suit.)
Types of Civil Damages
The distinction between losses that can be recovered through criminal restitution and those that cannot roughly parallels the distinction in tort law between special and general damages. Both special damages and general damages may be recovered in a civil suit. Special damages are easily discernible costs, such as medical bills or lost wages. General damages are less easily discernible. They include categories like “pain and suffering” or “emotional damage,” injuries to which the jury assigns whatever amount it deems fair. Both types of damages must be proven in court, by the victim, who is the plaintiff in such a civil suit.
Generally, a crime victim who sues the criminal offender must prove the amount of their damages. This can mean persuading a jury to put a large value on something like pain and suffering that people generally do not value in dollars and cents.
Special Federal Statute
This is not a problem, though, for children who have been photographed, filmed, or video-recorded in child pornography. Due to a special federal statute, any such child (or adult who used to be such a child) is presumed to have been damaged in the amount of at least $150,000. No proof of the victim’s actual damages is required. (But the victim is permitted to offer proof that their damages exceed $150,000 and to seek that larger amount.)
Most persons found in possession of child pornography are found in possession of a lot of it. That’s because downloading from the internet is quite easy. In fact, a person who chooses to download some pornography may find that they have unintentionally downloaded much more than they meant to.
This has consequences for both the length of a criminal sentence and the amount of a civil damages award. The special federal statute allows each child depicted to be awarded at least $150,000. So if one has possessed images of ten children, for example, one is on the hook for at least $1.5 million.
How a Civil Suit Can Start and How to React
The National Center for Missing and Exploited Children has created a repository of child pornography images that are in wide circulation. When child pornography is seized from a person, the images seized can be compared with those in the repository, and the Child Pornography Victim Assistance Office can notify the persons depicted in the seized images. Thus do those children, or former children, learn that they have someone to sue for damages.
There is no requirement that the person who possessed the images be prosecuted criminally, but most damages suits are filed after a conviction is obtained, since the conviction usually spares the victim the need to prove that their image was possessed by the person.
If someone knows they are liable for a civil suit because they possessed child pornography, it is tempting to try to transfer or hide their assets to keep them safe from judgment. This is a bad idea, as any transfer to protect an asset from a judgment creditor can be declared fraudulent and reversed. This is so even if no suit has yet been filed at the time of the transfer.
But that doesn’t mean there aren’t ways to minimize the financial risk. Certain property is exempt from judgment creditors, and there are ways to avoid adding to non-exempt property. And of course, the defendant needs an attorney to explore their potential legal defenses and compromises.
Experienced Defense Attorneys
At the Marshall Defense Firm, we have defended many persons against damages claims under the special federal statute. We have experience in resolving these difficult cases to our clients’ satisfaction.
If you or a loved one is facing any allegations of sexual misconduct, the Marshall Defense Firm would like to help. We provide a respectful and compassionate defense, alongside firm and unwavering advocacy. Contact us at 206.826.1400 or firstname.lastname@example.org for an appointment.