Eric Posner on Paroline v. United States

The Puzzle of Paying Amy
Eric Posner
Slate.com
April 25, 2014

When she was 17, Amy (not her real name) learned that thousands of people had downloaded images from the Web of sexual abuse she suffered at the hands of her uncle when she was 8 and 9. He’d taken pictures and put them online. The Violence Against Women Act provides for restitution for child pornography victims, so Amy sought payment from the people convicted of possessing her images. She proved that she had lost almost $3.4 million in therapy expenses and future income as a result of the abuse and the viewing of the images, but because of the collective nature of the wrongdoing that caused her harm, she could not prove how much of the loss could be attributed to any specific defendant. Doyle Randall Paroline was convicted of possessing two images of Amy.This week’s puzzle for the Supreme Court: How much should he have to pay her?

Zero, three of the conservative justices argued in dissent Wednesday. All $3.4 million, argued Justice Sonia Sotomayor, also in dissent. Something, held the majority, in an opinion written by Justice Anthony Kennedy. The conservatives got the law right, Sotomayor got the morality right, and Kennedy—characteristically trying to have it both ways—created a muddle.

Amy argued that she suffered emotional trauma from the knowledge that images of her were on the Web, that an unknown number of people were looking at them, and that she might meet any of them at any time. But to win restitution in the full amount from Paroline, she (or technically the government, in its role as prosecutor) was required to prove “the amount of the loss” she sustained as “a result of” Paroline’s offense. That’s the key phrase, and by looking at two images of Amy, Paroline simply did not cause $3.4 million in damages.

Faculty: 
Eric Posner