Child porn victim seeks restitution after years of exploitation, shame

2010-05-27T00:15:00Z Child porn victim seeks restitution after years of exploitation, shameCLAIR JOHNSON Of The Gazette Staff The Billings Gazette
May 27, 2010 12:15 am  • 

Vicky was 10 years old when her father began raping and sodomizing her. He sexually abused his daughter for two years, and he videotaped the abuse and distributed the images on the Internet.

The movies and photographs of Vicky (a pseudonym) are considered to be among the most widely circulated images of child pornography, said Carol Hepburn, a Seattle attorney representing Vicky in numerous child pornography cases across the country.

Images of Vicky have been identified by the National Center For Missing and Exploited Children in about 8,000 cases, she said.

“Some of these images were ones that he specifically made in order to share with other online pedophiles,” Hepburn said of Vicky’s father, who divorced Vicky’s mother when Vicky was a toddler. Some images were the result of people “placing orders, if you will,” she said. “He scripted what he was doing to her. It’s horrendous.”

Now a woman in her early 20s, Vicky is fighting back. In more than 80 federal court cases, including six in Montana, she is seeking restitution from those convicted of receiving or possessing images of her. Three of the Montana cases are in the Billings district.

Restitution is an emerging issue in federal child porn cases as victims are identified and are starting to submit claims. Judges across the country are grappling with how much restitution, if any, to order from those convicted of possessing or receiving the material but not creating it. 

The first federal law addressing child pornography was passed in 1978 and prohibited the making and commercial distribution of obscene material involving children under age 16. In 1988, it became illegal to use a computer to depict or advertise child porn.

Over the years, a series of statutes and court rulings have refined and tightened child porn laws, making it a crime to knowingly possess, manufacture, distribute or receive the material. The penalties for conviction can be stiff. Receiving child porn carries a minimum mandatory five years to 20 years in prison and a maximum $250,000 fine.

Restitution in sexual exploitation cases has its roots in two 1994 laws addressing violent crime and violence against women. Those laws were the first to make restitution mandatory in sexual exploitation cases and certain other crimes.

Historically, courts ordered restitution for those convicted of sexually abusing a victim or producing child porn. But the mandatory restitution law applies to all crimes involving the sexual exploitation of children, including distributing, receiving or possessing child porn.

In February 2009, a federal judge in Connecticut said he would order $200,000 restitution from a man convicted of possessing and distributing the material. The case was settled for $130,000. Since then, numerous claims for restitution have been filed by victims in child porn cases. Restitution has ranged as high as $3.2 million, which was ordered in a Florida case under appeal.

Assistant U.S. Attorney Marcia Hurd said in court records that Vicky is among the first to make such restitution claims. 

“Vicky and other child victims like her continue to suffer separate and distinct injuries from the consumers of child pornography who acquire her images,’’ Hurd said.  While production may be immediately harmful to the child involved, the distribution of images exacerbates the harm by being an invasion of privacy and by providing the market that led to the creation of the images in the first place, she said.

The question is how to quantify the harm caused to Vicky in a restitution order, Hurd said.

Defense attorneys say the restitution law is being misapplied.

Assistant federal defender Mark Werner of Billings said the restitution issue needs to be settled. So far, no circuit court has ruled on the matter. 

The mandatory-restitution law says that the defendant shall pay restitution for any offense to the victim. It defines “victim’’ as “the individual harmed as the result of a commission of a crime.”

The law further says restitution includes costs incurred by the victim for medical services, including physical or psychological care; physical or occupational therapy; transportation; lost income; attorney fees; and “any other losses suffered by the victim as a proximate result of the offense.”

Werner is appealing to the 9th U.S. Circuit Court of Appeals the sentence and restitution recently ordered for Billings resident Keith Edward Baroun, 35, who admitted receiving child porn on his computer. 

Chief U.S. District Judge Richard Cebull sentenced Baroun to 13 years and nine months in prison and ordered $3,000 restitution to Vicky. Cebull held Baroun responsible for 2,700 images, including 36 videos. Three of the videos were of Vicky.

Hepburn filed a restitution claim seeking $231,891 for Vicky, mostly for counseling.

Werner argued against restitution in a sentencing memo, saying that the “proximate cause” language requires a victim’s losses be tied to a defendant’s specific conduct. Vicky’s attorney, he said, is “making the same restitution claim in cases across the country, without regard to the actual culpability of the individual defendant involved. This is unfair and attempts to distort the restitution process.”

Cebull rejected Werner’s argument and ordered $3,000 restitution in his first ruling on the issue.

“It is certainly difficult, if not impossible, to determine the exact degree of victimization. However, this defendant and every person who possesses these images causes a real and cognizable harm to the victims,” Cebull said.

Cebull, following what some other judges have done, derived the $3,000 figure as 2 percent of a $150,000 maximum civil remedy for personal injuries in child sexual exploitation cases. Cebull said he was confident the amount was less than the actual harm Baroun caused Vicky and therefore resolved any “due-process concerns.”

Montana’s federal judges are split on the issue.  Senior U.S. District Judge Jack Shanstrom in Billings has ordered $3,000 restitution in two cases, with one of the cases under appeal by the defense and restitution having been paid in the other case. U.S. District Judge Sam Haddon in Great Falls also ordered $3,000 restitution in one case in which both parties agreed to the amount.

U.S. District Judge Don Molloy in Missoula has denied restitution in two cases, with the prosecution appealing in one of the cases.

In denying restitution in the case under appeal, Molloy ruled that the government had not met its burden to prove that the defendant, Robert James Lawton, caused Vicky’s losses. “While ‘Vicky’  has undoubtedly suffered great harm because of the abuse she suffered and the availability of these images on the Internet, there is not sufficient evidence to show that her losses were proximately caused by Lawton’s conduct,’’ he said.

Neither Vicky, nor any other victim, appeared at sentencing, Molloy said. And the government did not provide any evidence, other than documents already submitted by Vicky’s lawyer, to demonstrate that Lawton was responsible for losses sustained by Vicky, he said.

Werner said he doesn’t think defense attorneys are disputing that possession contributes to child porn trafficking. But that doesn’t answer the question of what specific damage the possession caused the victim, Werner said. The victim may have “a general anxiety” knowing images are out there, but that is “a long way’’ from addressing restitution requirements, he said.

Billings defense attorney Sandy Selvey has raised similar arguments in appealing a sentence and restitution order imposed on his client, Richard John Baxter. Shanstrom sentenced Baxter, 41, of Billings, in September to more than 17 years in prison and ordered $3,000 restitution for receipt of child porn, including images of Vicky.

Hepburn requested $150,247 restitution for Vicky.

Selvey argued that the government had to prove the amount of Vicky’s losses that are a “direct result’’ of Baxter possessing her images. “The losses described in Vicky’s victim impact statement and as alleged by the government are generalized and caused by her initial abuse as well as the general existence and dissemination of her pornographic images,’’ Selvey said in his appeal. “No effort has been made to show the portion of these losses specifically caused by Richard Baxter’s possession of images of Vicky. Mr. Baxter simply is not responsible for any loss to Vicky.’’

Vicky is seeking restitution because she needs a lot of therapy, Hepburn said.  

Vicky’s father was eventually tracked down overseas where he had fled, was prosecuted and is now serving a 50-year federal sentence, but the images are still out there, Hepburn said.

“It really is almost viral the way they can spread,’ she said.

Vicky has no control over who sees the intimate, humiliating and embarrassing images, Hepburn said.  “The anonymity of the crime is part of the damage for her,’ she said.

Vicky worked in a retail job but found she was having anxiety attacks when waiting on male customers. Vicky would wonder if the customer was looking at her longer than normal and wondered if he had seen the pictures, Hepburn said.

“It’s helpful for her to have this acknowledged that this has done her harm,” Hepburn said. “She’s really focused on trying to be normal. She is really about encouraging other victims, survivors to come forward.”

Restitution requests are new, Hepburn acknowledged.

“You have to remember, there are very few of these victims who have the strength to even come forward and even say, ‘I’m out here. This happened to me,’ ” she said.

People who download child porn are responsible for harming victims because without the demand, the material would not be produced or spread over the Internet, Hepburn said. Congress, court rulings and the Supreme Court have said these children are victims and possessing child porn images harms them, she said. “They can’t point the finger and say not me,’’ she said. “People still think of this as a victimless crime, which it is not.’’

Distribution of child porn is a “horrendous violation of privacy,’’ Hepburn said. “It’s just like looking in the window when the abuse was happening.’’

Hepburn and Werner both recognize there are a variety of views on the issue.

“I think there are some very thoughtful opinions out there that do award restitution,” Hepburn said. Some judges, she said, have “very honest differences of opinion.’’ 

“This is a really difficult issue.  Both sides can make reasonable arguments,” Werner said. “It may even go to the Supreme Court.”

Copyright 2014 The Billings Gazette. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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