Today on the Red X Podcast, Lance and Nicole speak with Erin Wallin, child support prosecutor in Tennessee and how child pornography victims could receive higher restitution through copyright law. In the news, Nicole tells how child pornographers are being beaten at their own game.
Mayor Lance Olive tells about his recent trip to the APPA Linemen Rodeo. Linemen are the community responders who repair the telephone poles. Each year they sponsor an event in which linemen compete in a variety of scenarios that will test their skills.
Erin and Nicole recount the story of the shark blimp toy that Erin and her husband Bart brought as a gift for Nicole’s kids. When Bart brought the shark outside, it quickly ascended and Bart ended up chasing it for miles. Lance suggests that when it finally did come down, it might have inspired the movie, Sharknado. On this episode’s icebreaker, Lance asks what Nicole and Erin like about science fiction. Nicole’s favorite sci-fi’s are dystopias like Hunger Games and Ender’s Game. Erin prefers Star Trek Voyager because of the epic battle against villains, whereas Lance’s favorite is Dr. Who. Erin remarks on how each person’s preference for science fiction reflects on their personality: Nicole is drawn to stories of justice for exploited children, Lance likes the tech and narrative development of Dr. Who and Erin (a prosecutor) enjoys the defeat of “bad guys”.
Nicole reports an article written by Steve Zalusky from the Daily Herald:
“Aurora police said Friday that a 32-year-old registered sex offender has been arrested on child pornography and other felony charges following a 2½ month investigation that began when Google notified police.
Harry Joslin, of the 200 block of East Galena Boulevard, is charged with a single count of possession of child pornography depicting a child under 13 while having a previous conviction for child pornography.
He also faces three counts of possession of child pornography depicting a child under 18, one count of violation of sex offender registration and one count of a sex offender communicating with believed minors online, according to police.
Police said the investigation began around Feb. 14, when Google told police that, based on his online activity, one of its users was in possession of child pornography.
Police executed several search warrants that revealed Joslin allegedly had child pornography online and on his cellphone and created and maintained email, Snapchat and Twitter accounts, all of which were absent from the Sex Offender Registration Form he filed with Aurora police.
They also found evidence indicating he was communicating online with persons he believed to be under 18.
Joslin is being held at the Kane County jail.”
Thorn is a nonprofit started by Demi Moore and Ashton Kutcher to help facilitate the arrest of perpetrators like Joslin. According to Thorn, 25 million pornographic images of children are reviewed by NCMEC (National Center for Missing and Exploited Children) each year. Thorn has helped build tech tools to help law enforcement prioritize their caseloads, reduce their response times and identify victims.
The Canadian Centre for Child Protection research revealed that in 78.30% of pornographic images were of children 12 years old or younger. Of those, 63.40% of those children were under 8. Eighty percent were girls; twenty percent boys. A quarter of the images were produced by a neighbor or family friend of the child, while 18% were from online enticement.
Erin says that these numbers are consistent with the cases she saw when she worked with the US Attorney’s Office in Chattanooga. She adds that the men who were charged with possession of child pornography are often middle-class, middle-aged, white men. Many times, Erin noted that the men seemed to be confused by the severity with which their crime was punished as they viewed their child pornography consumption as harmless to the child and did not connect their offense as feeding demand.
Erin Wallin says she went to law school about 10 years later than most. She drove 2 hours each way for 4 years to be able to attend part time while also raising 3 children. During her law school career, she served as an intern at the US Attorney’s Office in Chattanooga and had the opportunity to see child pornography cases play out in court. She says that restitution (the financial reimbursement for harm done to victims) is very difficult, if not impossible to get for child pornography cases. Although a child may be able to get restitution from the person who sexually abused the child, the law is not structured to support restitution coming from the consumers of child pornography.
Erin says that Congress desires harsh penalties for child pornography consumers, but legally it is difficult to determine proximate cause. Proximate cause is the determination of who is the person who bears responsibility for causing harm. How can you prove that a viewer of someone’s sexual abuse is causing harm? Erin uses the case of Paroline v. United States in which “Amy” was raped by an uncle. Her uncle was put in jail and “Amy” was able to receive the counseling she needed and was improving. However, her uncle had posted a video of her rape online and the video had gone viral. Knowing that her images were still being consumed and driving demand for child pornography was constantly re-traumatizing for “Amy”. And yet, because it is difficult to determine proximate cause for her re-traumatization, she could not seek restitution for the consumers of her videos.
NCMEC has identified 8,500 children that have been involved in child pornography victims. Of them, 15 have filed for restitution. Most are only rewarded about $400-500 restitution.
The way the statute reads now, you can’t prove proximate cause. Erin asks, why not give a copyright to the victims and therefore charge a perpetrator civilly for infringement? Under copyright law 1) attorney’s fees are paid for 2) the victim does not have to testify. Once there is a conviction for child pornography, attorneys could also prosecute an offender for infringement and grant the victim higher restitution. Congress would have to statutorily grant a copyright to the victims for the images. Then it would also be possible to also go after web masters and have them take the videos off the web.
This novel solution would not be without some controversy. Some would argue that granting a copyright to a victim of pornography is somehow giving him or her authorship of her own victimization. However, Erin says that you can’t destroy something you don’t own. Furthermore, in these cases lawyer fees would be covered which would incentivize prosecutions, cover victims’ financial needs, and reduce the number of child pornography videos circulating on the web.
These cases are in federal court and if they have made it to federal court, Erin says that the consumer probably has a large collection of child pornography. In the Amy and Vicky Actintroduced in 2017, Congress was trying to get restitution $25,000 per image. The Department of Justice thought it could be excessive fines thus coming up against the 8thamendment. But Erin notes that in copyright law, there were no 8thamendment challenges. And, she says that she has never seen a purchaser of sex from minors who did not get his start by first consuming child pornography. Reducing child pornography is also prevention of child trafficking.
This is a bipartisan issue and congress clearly wants to see greater justice for these victims. Call or write your congressperson and ask what can be done to apply intellectual property laws for greater restitution for victims of child pornography.
Lance says he learned that there is a civil angle for restitution. Right now it’s only $400-500 for victims. Nicole hadn’t considered before how ongoing the trauma would be for someone who didn’t know if they were interacting with someone who had consumed images of them being victimized.
Check back soon for a copy of Erin’s article proposing a path for greater restitution for child pornography victims once it is published.