BENEFITING: YOUNG ONE UNITED
This initiative by Young One’s United (“YOU”) is an effort to create a fund in Arizona and/or nationally to compensate victims of child pornography to be called “The Victims of Child Pornography Compensation Fund.” In addition, YOU would like to create as part of this initiative, or separately if needed, a defense fund to be called “The Victims of Child Pornography Defense Fund.” Hereinafter collectively referred to as “Funds,” they would ensure that victims of child pornography were actually compensated for their losses and/or ensure access to justice that may not otherwise exist. As the law stands right now, no funds similar to those YOU propose exist in order to compensate/defend victims of child pornography.
The Funds will be maintained by a public or private entity (same as other funds of these types) and be continually funded through restitution ordered by the court paid by criminal defendants found guilty at trial, or through a plea bargain, who download from the internet or are otherwise found in possession of images that constitute child pornography. Other sources of funding may also be utilized such as private and public donations.
In an article that appeared in the September 2012 issue of the ABA Journal called “Pricing Amy” by Lorelei Laird, it describes the plight of two victims of child pornography. The article describes their abuse at a very young age and now as adults how they still deal with the abuses of their respective abusers with every single notification they receive as required under the Crime Victims’ Rights Act (“CVRA”) (See Below for more information on this Act).
The article goes on to describe how the two victims, through their attorneys, have found a unique way to seek compensation under The Violence Against Women Act (“VAWA”) (See below for more information on this Act). VAWA requires the court to order restitution for “the full amount of the victim’s losses.” As explained in further detail below, some Circuit Courts have not ordered restitution to victims of child pornography under VAWA and other Circuits Courts have ordered restitution in the millions of dollars. In the cases where the Court has ordered millions in restitution to victims, a continuing problem becomes evident that is similar to other areas of law where restitution is ordered in large amounts. Specifically, when a particular defendant is found guilty of possessing images that constitute child pornography they are sent to jail eliminating the defendants ability to earn any income. Therefore, the probability that the victim will see any money at all is essentially none. The practical result is that no matter what Circuit Court the case is in, a Court that orders no restitution at all or another Court that orders restitution in the millions, the victim goes through the process again and again reopening old wounds without ever seeing any real compensation.
Ms. Laird goes on to describe the Supreme Court’s denial of certiorari in these cases for many reasons giving no hope to finding continuity among the Circuit Courts. However, the main reason cited is that this is fertile ground for legislation and not judicial precedent. Legislators have been hesitant thus far to address the issue and it is time to start bringing awareness to the importance of the issue to the Arizona Legislature and Congress as well as their constituents.
YOU will begin to bring about this awareness by talking with state and federal representatives while reaching out to victims willing to participate in order to educate the community of this continuing and growing problem. YOU’s ultimate goal is to establish a fund for child pornography victims so when their images are found in the possession of persons convicted of such possession, they may apply for compensation without going through a lengthy judicial process every time a victim receives a notice. This fund, or an additional fund, will also be used to put forth any defense necessary if the victim so chooses, or is required. Again, the Funds will contain all of the restitution imposed by the courts upon conviction of these defendants and contributions from private and public entities.
Who is Young One’s United?
YOU is a 501(c)3 organization located in Arizona, created in December of 2006 and incorporated in October of 2009. Its main purpose is child abuse prevention and awareness. Through initiatives like the one proposed here, educational programming, and community outreach, YOU uses a multifaceted approach to accomplish its mission. Additionally, YOU will occasionally partner with other like organizations in a unified effort to accomplish certain tasks or enhance community outreach.
YOU is made up of its seven (7) Board of Directors and Members. The current Board of Directors are:
Chairman: Timothy M. Collier
Vice Chairman: Bill Calhoon
Secretary: Leah Keeley
Treasurer: Justin Lepley
Board Member: Krystle Delgado*
Board Member: Christian Vasquez
Board Member: Bringham Fordham
*Krystle Delgado also serves as YOU’s Chief Executive Officer.
Any person can become a Member of YOU by volunteering his/her time and/or making a monetary donation. There are different levels of membership based on the amount of time a person volunteers or the amount of money a person may donate (for more information, please visit youngonesunited.com).
Under Arizona Law, “If a person is convicted of an offense, the court shall require the convicted person to make restitution to the person who is the victim of the crime or to the immediate family of the victim if the victim has died, in the full amount of the economic loss as determined by the court and in the manner as determined by the court or the court's designee pursuant to Chapter 8 of this title. Restitution ordered pursuant to this subsection shall be paid to the clerk of the court for disbursement to the victim and is a criminal penalty for the purposes of a federal bankruptcy involving the person convicted of an offense.” A.R.S. § 13-603(C). Furthermore, “Upon a defendant's conviction for an offense causing economic loss to any person, the court, in its sole discretion, may order that all or any portion of the fine imposed be allocated as restitution to be paid by the defendant to any person who suffered an economic loss caused by the defendant's conduct.” A.R.S. § 13-804(A).
“After the court determines the amount of restitution, the court or a staff member designated by the court, including a probation officer, shall specify the manner in which the restitution is to be paid. In deciding the manner in which the restitution is to be paid, the court or a staff member designated by the court, including a probation officer, shall make reasonable efforts to contact any victim who has requested notice pursuant to sections 13-4415 and 13-4417, shall take into account the views of the victim and shall consider the economic circumstances of the defendant. In considering the economic circumstances of the defendant, the court shall consider all of the defendant's assets and income, including workers' compensation and social security benefits. The court shall make all reasonable efforts to ensure that all persons entitled to restitution pursuant to a court order promptly receive full restitution. The court may enter any reasonable order necessary to accomplish this. If a victim has received reimbursement for the victim's economic loss from an insurance company, a crime victim compensation program funded pursuant to section 41-2407 or any other entity, the court shall order the defendant to pay the restitution to that entity. If a victim has received only partial reimbursement for the victim's economic loss, the court shall order the defendant to pay restitution first to the victim and then to the entity that partially reimbursed the victim. If a probation, parole or community supervision officer has reason to believe that court ordered restitution is not being made, the officer shall report to the court supervising the probationer or the board of executive clemency that the defendant has failed to make restitution in a timely manner and the court or the board of executive clemency may revoke the defendant's probation, parole or community supervision. A.R.S. § 13-804(E).
Arizona Criminal Justice Commission
This Commission is a statutorily created body that exists, among other things, to allocated money to existing funds. See, A.R.S. § 2401 et. al. Once the Victims of Child Pornography Fund/Victims of Child Pornography Defense Fund is created, this commission would allocate the necessary funds to be distributed by a private or public entity to victims of child pornography.
This may include monies collected through fines, fees and surcharges but under A.R.S. § 12-116.07, “In addition to any other assessment or restitution, if a person is convicted of or adjudicated delinquent for a dangerous crime against children as defined in section 13-705 or sexual assault, the court shall order the person to pay an assessment of five hundred dollars. The assessment shall not be waived and is not subject to a surcharge.” This would include child pornography victims.
The good news is Arizona law already provides the framework for distributing restitution, fines and surcharges to the Funds. Therefore, once the Funds are created they could be funded immediately through this process.
The Crime Victims’ Rights Act of 2004 is codified in 18 U.S.C. § 3771. Specifically, § 3771(a)(2) provides victims with the right to “reasonable, accurate, and timely notice of any public court proceeding…” Additionally, CVRA in § 3771(a)(6) provides the victim with the right to “full and timely restitution as provided in law.” Under CVRA the federal government must notify victims anytime a person is arrested by federal authorities for possessing that victim’s image(s) which qualify as child pornography under the law. Some victims have received in excess of 1,000 notices.
One important point that needs clarification under CVRA is whether victims of child pornography have the option to not receive these notices. Some victims of child pornography would choose not to receive notices as required under the law to save themselves from the emotional trauma as a result from having to relive their horrible experience with every notice.
The Violence Against Women Act of 1994 (amended in 2011and renewed in 2012) is codified in scattered sections of 18, 26, and 42 of the U.S.C. Specifically, 18 U.S.C. § 2559 mandates that “in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under this chapter.” Under 18 U.S.C. § 2264, in a VAWA case, the Court must order restitution after conviction to reimburse the victim for the full amount of losses. Losses include costs for medical and psychological care, physical therapy, transportation, temporary housing, child care, lost income, attorney’s fees, costs incurred in obtaining a civil protection order, and any other losses suffered by the victim as a result of the offense. As mentioned earlier, the Circuit Courts are split on whether to award loses in these cases. The specific language in VAWA, “as a result of the offense,” is where the controversy lies. The main question is whether downloading an image a sufficient nexus to the losses incurred by the victim. The decisions coming out of the different Circuit Courts have ranged from the Court ruling that a person downloading an image is not the proximate result of the victims losses (in other words there is not a sufficient nexus between the victim and a defendant who only downloads an image) to the Court ordering the full amount of losses, sometimes in the millions of dollars, claimed by the victim. The practical result in most cases, regardless of the Circuit Courts interpretation of VAWA, is the victim receives nothing due to no restitution being ordered, or in cases where restitution is ordered the insolvency of the convicted person because he/she is going to jail.
One item worth noting, in the mid 1980’s the Child Abuse Victim’s Rights Act was passed by Congress giving Children a civil claim in sexual abuse cases. Many states have also enacted specific laws to lengthen the statute of limitations lasting sometimes years after the victim reaches the age of majority. Regardless, victims of child pornography still have to possess resources to afford the ensuing litigation. In addition, this Act only gave victims a pathway to recovery through civil action. With that said, victims of child pornography that qualify under this Act, but cannot afford the cost of litigation, would be candidates for the Victims of Child Pornography Defense Fund.
Fine-tuning what already exists.
Arizona law already provides the framework to deliver moneys to the Funds. Where YOU believes the starting point is, would be to create legislation at the state level that provides notice to victims of child pornography similar to CVRA. This legislation would be available to both male and female victims with an option for the victim to not receive any notices whatsoever. Once the legislation is in place, victims would be able to apply for compensation and/or defense from the Funds upon the receipt of these notices.
Once this legislation was in place the Funds would be created and the Court could begin ordering restitution and/or fines and surcharges designated for the Funds. Victims then would be able to apply for compensation/defense from the Funds (see below for more information on distribution of the Funds).
At the federal level the CVRA and VAWA are used to provide some compensation to female victims of child pornography. YOU proposes separate legislation, or possible amendment to the CVRA, specific to these offenses that would provide compensation as well as an opportunity to defend for both male and female victims of child pornography.
Similar to the Arizona process, the Funds would be created once the new or amended legislation is in place. Victims then would be able to apply for compensation/defense from Funds (see below for more information on distribution of the Funds).
The language in VAWA is arguably gender neutral and the Supreme Court has looked at such language in other Acts, such as the Civil Rights Act of 1964, to allow both males and females to claim under the law. This would nullify the need to create gender neutral legislation if true. However, the problem is remedied more simply by enacting new legislation or amending existing legislation. Creating new legislation is simpler because otherwise: (1) a case would have to reach the Supreme Court where the claimant under VAWA is male and asserts its protections and; (2) the Court would have to rule in favor of the male claimant. Currently, there are no cases of this sort in the pipeline to reach the Supreme Court to YOU’s knowledge. Meaning it could be years, if ever, that such a case is heard by the Supreme Court. Creating new gender neutral legislation in this area will eliminate any ambiguity in the law as it stands today without having to wait for judicial interpretation of whether the protections under VAWA are gender neutral.
How would the Funds be distributed to victims?
Distribution of the Funds may be a part of the legislation created at the state and federal level. However, some additional guidelines would need to be instituted such as amounts to be distributed and the application process in general by the entity that controls the Funds. An organization, or government/public appointee would likely be in charge of assessing applicants and distribution to victims of child pornography. In addition, some sort of oversight would also be instituted. There is plenty of room here for discussion to make sure the process serves the purpose of getting compensation and/or money to defend the victims’ rights to the victims in a timely manner, for the correct purposes, and done in the fairest way possible.
Once the structure and guidelines are set, awards would be distributed directly to the victims. Victims who choose to take advantage of the Funds would apply and be considered based on certain criteria set forth in the legislation or additional guidelines set by the distributor.
This area would be developed more once this proposal is accepted and moves forward to the legislative drafting process. Finding a good model that has been used in the past can prove to be useful. In addition to many current victims compensation and victim defense funds already in existence for other purposes, the 9/11 Fund or Katrina Fund may serve as good models.
Why are The Victims of Child Pornography Compensation Fund and The Victims of Child Pornography Defense Fund proposed by YOU so important?
1. Even if the defendant in a given case is ordered to pay restitution ordered by some courts now, the victims may not have the resources to initiate the litigation.
2. Child pornography victims will begin receiving compensation for their losses. As stated above, the restitution ordered by some courts is never paid because the defendant is insolvent (i.e. sent to jail with no income) or no restitution is ordered. Creating the Funds would allow these victims to simply apply to receive compensation. Compensation they would actually receive.
3. Part of the process is creating gender neutral legislation so that all victims of child pornography have an opportunity to be compensated and/or defended.
4. Many victims will not want to relive these incidents. Creating legislation giving victims the choice whether to receive notices is essential to their recovery.
5. The process of creating the Funds will eliminate the current ambiguities in the current law.
6. Compensation will be received much quicker than civil litigation and/or restitution ordered through a criminal trial.
7. Victims would not have to avail themselves to the courts and these defendants causing less trauma and/or embarrassment.
8. A streamlined process will create more efficiency in the court system resulting in less time in lengthy hearing and/or trials.
9. Meeting this specific legal need communicates to victims of child pornography that the system works and cares about them.
10. Receiving compensation from the Funds promotes healing which will result in an improved quality of life for victims of child pornography instead of reliving each horrible experience through a lengthy adjudicative process.