OTLA Trial Lawyer Winter 2022

30 Trial Lawyer • Winter 2022 Image Offenses Continued from p 29 authority figures. For young women, being in a public setting and encountering strangers on a daily basis can precipitate panic attacks. These circumstances can impact a client’s earnings. Lost income is a significant component of a restitution request. The federal restitution statute includes compensation for both past and future income loss.2 The compensable losses can reach seven figures. SCOTUS has made clear that each criminal defendant should pay an apportioned amount of those total losses based on a nonexclusive list of factors. Paroline v. United States, 572 US 434 (2014). Paroline arose from the denial of restitution by the Eastern District of Texas. Amy, the victim in that case, utilized a mandamus process to move the issue to the Fifth Circuit. The panel decision to reverse was upheld in the circuit’s en banc opinion. Defendant Doyle Paroline then filed a petition for certiorari to the Supreme Court. At the time, our team of attorneys represented several survivors in cases in multiple circuits with pending petitions for certiorari. Paroline had the most developed record of the group and was selected by SCOTUS. It became the first case in the nation in which a crime victim had independent status as a party to the action. Willamette law students, under the direction of retired Chief Justice De Muniz and Prof. Warren Binford, contributed to one of fourteen amicus briefs supporting the victim’s position. The Paroline opinion changed the landscape of restitution awards. Awards prior to Paroline ran the gamut from zero to seven figures. Post-Paroline restitution was awarded in almost every case where it was requested, though the amounts were more moderate. Many awards were disappointingly small. Our clients were among those whose advocacy led Congress to amend section 2259 setting a floor of $3,000 per victim. The federal criminal code includes a private civil right of action against those who violate various predicate criminal statutes. Possession, distribution and receipt of child sex abuse material are among the crimes included. 18 USC 2255. A conviction is not required but is helpful. Conviction of a similar state criminal statute may also suffice as evidence of the predicate offense, at least in the Western District of Washington. Aurora v. Sheeley, USDCWDWA 16-cv1358 RSM. The statute provides for liquidated damages of $150,000 per victim or actual damages, should the plaintiff elect that option. However, these are uninsured losses, so this level of recovery is not a certain floor in each case. While 18 USC 2255 appears straightforward, a defendant who chooses to take the “millions for defense, but not a penny for tribute” route can exhaustively litigate. There are few reported District Court cases and fewer appellate decisions. One case we brought for 15 plaintiffs recently settled in mediation. The path to settlement was a roller coaster ride. Amy et al v. Curtis, USDC NDCal. 19-cv-02184. One of the issues concerned depositions of plaintiffs regarding their sexual abuse. Plaintiffs argued, and the court agreed, election of statutory liquidated damages should preclude depositions, but it was one of many issues that would have been before the 9th Circuit had the case not resolved. Overcoming hurdles Relationships with CSAM survivors can be long term. My first client and I are still working together 13 years later. Many clients work hard in therapy, overcome huge hurdles and find their voices to speak their truth. One client, who found me through media articles at age 18, later got her first driver’s license and then her GED. Next, she quit her job as a waitress, which had triggered her symptoms. Just recently, she was admitted to nursing school. In our office we find joy in the accomplishments of each client. It is gratifying to see them benefit from their own personal growth and from restitution. The EARN IT Act (Eliminating Abusive and Rampant Neglect of Interactive Technologies) has been re-introduced in the Senate and passed unanimously out of the Senate Judiciary Committee on February 10, 2022. It nevertheless faces vigorous opposition from the tech industry. EARN IT aims to remove the Section 230 immunity contained in the Communications Decency Act for internet service providers who knowingly allow CSAM to persist on their platforms. The Act would open up another field of litigation on behalf of survivors of these crimes. Representing victims of CSAM crimes is an evolving area of the law with many opportunities for advocacy, and many rewards in helping survivors recover from horrific and ongoing abuse. Carol Hepburn specializes in representing survivors of child sex abuse image crimes. She started her practice in 1978 as a deputy prosecutor with the King County Prosecuting Attorney’s Office in Seattle, where she handled sex abuse and fraud cases as well as general felonies. She is a sole practitioner in the firm Carol L. Hepburn, PS, 1319 N. 43rd St. Seattle, WA 98103. She can be reached at 206-957-7272 or carol@hepburnlaw.net. 1 The term “child sex abuse material” or CSAM acknowledges the content: crime scene images of the sexual torture of children. Use of the term “pornography” is less favored as it confuses these criminal images with the consensual pornography produced by adults. Much worse is the term “kiddy porn,” which deprecates the victims. The images of children crying while being raped and sodomized are images of torture, not pornography. 2 Most state restitution statutes are not specific to CSAM crimes but will include past income loss if it can be tied to the crime at issue. The Washington Court of Appeals has affirmed an apportioned restitution award for one of my clients under the general restitution statute in Washington. State v. Velezmoro, 384 P.3d 613 (Wn App 2016). The federal restitution statute also includes attorney fees and costs of documenting the client’s losses. State statutes typically do not.