On Parsing the Cost of the Harm - and Its Cause

There are, in this world, people who do unspeakable things to others.  Some of their victims are children.   And some of them - Well, thereby hangs a tale.

Someone rapes a child, films it, and puts the film out in the ether where others can see it.

That's a whole bunch of crimes.  Maybe the baddie is found, convicted, and punished.  But the child is (and no one possessing even a hint of a sound mind can fairly disagree) likely damaged.  And then there's the follow up.  That film out there in the ether where others can see it actually gets seen. Repeatedly.  Over and over.  And the child, later an adult, learns that those films (or still pictures, that really makes no difference) are being masturbated over by (almost exclusively) men who get their jollies seeing little whoever getting raped.

And the child or now adult feels that with every viewing there's another violation.  Which is (and really it's hard to deny this) damaging again.

I mean, we're not just talking hurt feelings and being overly sensitive here.  This is real stuff.

Enter Congress which, in its infinite wisdom, enacted the Mandatory Restitution for Sexual Exploitation of Children Act to see that those who get off on seeing that kid raped are criminals and should be punished.  And, in particular, that they should pay for the harm that's caused to the child when she learns that they're jerking off to the visuals of her rape.  And so there's this law that says they have to pay her damages.

Calculating damages that aren't just out of pocket expenses is a tricky business, actually it's largely a matter of picking a number out of thin air, but put that aside and do the math for "Amy unknown" who's rape is the subject of what's known as the "Misty" series.  The figure they've come up with is 3.4 million.  Amy's claim is that every time she learns of another person who looks at her being raped, it brings it all back. So she wants every one of those people to pay 3.4 million.  And there's this law.

Of course, one guy has watched Amy being raped dozens, maybe hundreds of times. While Doyle Paroline of Tyler, Texas (it gets personal eventually - Amy isn't the only real person in this story) only a couple.  But they both, maybe, get hit with the 3.4 million.  Which doesn't exactly seem right to Paroline who's stuck paying for damage that other guy caused Amy.

And that's the case that went to the Supreme Court which yesterday explained how much Paroline should pay.

And the court, in its wisdom, concluded . . . .  Here's where it gets tricky.

Sotomayor, and she alone, said that he should be stuck with the whole 3.4 million.  If he thinks that's more than his share, he can hire a lawyer and track down the other baddies and try to get some money back from them.

Roberts (with Scalia and Thomas along for the ride) said that Paroline can't be forced to pay more than their share, that is, for the portion of her 3.4 million in damages that he personally actually caused. And since it's impossible to calculate that amount (which nobody really disputes), and since criminal punishment isn't supposed to be just pull-it-out-of-your-ass (though of course that's what it often is, though as Scott Greenfield points out this morning taking off from a post by Judge Kopf yesterday, the alternative of rigid sentencing guidelines is just as bad if not worse).  So, since we can't come up with an answer, the answer must be nothing.  Which isn't particularly satisfying to Amy but is the only logical and coherent view.

Logical and coherent not being hallmarks of the law (despite its pretensions), the Court's actual decision was that Paroline ought to pay exactly for the percentage of the 3.4 million in damages he personally caused Amy when she learned that he jerked off to her rape (3.4 million that was determined to be the amount of her damages before he ever got involved) and even though there's no way to figure out how much that is, or even to make a good guess, judges are to reach deep into their asses and decide with rigor and logic and . . . 

Well fuck.  Justice Kennedy, on behalf of himself Breyer, Ginsburg, Kagan, and Alito declared that they're supposed to make it up.  Which is, in essence, splitting the difference even if it's wholly stupid.

The case is Paroline v. United States (which I've written about before) and you can read the opinions here. 

But wait, 'cause this isn't just a lesson in how the Supremes do whatever they do.  And it's not just a report on one of the two criminal cases the court decided yesterday.  (The other was a terrible decision reversing a grant of habeas corpus relief from the 6th Circuit, White v. Woodall.)  Because there's a question you may have been wondering about:

How is it that Amy knew Paroline had her stuff on his computer?

I mean, he's got to pay the percentage of 3.4 million that he caused not just by having his fun while she got raped.  That percentage would be zero if she didn't know he was doing it. And she knew because (I'm going boldface and bigger font and centering here)

Congress required that she be told.

Yep.  That's the law.  The government is required to let her know whenever they find out that her rape is on someone's computer.  And as she says, whenever she learns, she feels violated again.  And wants her money so that she can be, in the twisted language of the law, "made whole."

And, of course, if she wasn't told . . . .  We're not supposed to go there.

And amid the years of squabbling about how much Doyle Paroline should be out of pocket, it's an issue nobody talks about.