Cybercrime Civil Recovery – Part 2: Victims of Child Pornography

There are cybercriminals everywhere. They target the elderly, businesspeople, families and family businesses, small and large corporations, non-profits, governments, but perhaps the most pernicious form of cybercrime is Child Pornography. Its victims are among the youngest and most vulnerable members of society, subjected to sexual assault for the entertainment of adults who enjoy watching the rape of a child. It is a serious violation of federal law that carries with it extremely harsh punishments. The imposition of harsh prison sentences, however, does little to benefit the victim. A victim of this cybercrime may, however, be able to recover damages for the injuries suffered.

Not every victim of pornography, however, is a child, and in many instances, adult victims of pornography may be able to recover for violations of their privacy.

Child Pornography as a Cybercrime.

 Cybercrime refers to any criminal activity wherein a computer is used in the perpetration of a crime. Child pornography is a form of sexual abuse, often referred to as “sexual abuse imagery of children”, and involves any visual depiction of a child (under the age of eighteen) being subjected to any type of sexual activity or being shown in a sexually explicit manner. These images are usually created digitally and shared via the internet. As a result, the child experiences not only the initial sexual assault but also the injury of having those images shared thousands or tens of thousands of times on the internet. These images are then shared by pedophiles via peer-to-peer networks and VPN (virtual private networks). They can remain online for years or even decades.

Many people believe that child pornography is produced overseas by anonymous predators and that it is something that does not happen in North America. While it is true that vast quantities of child pornography are produced in Eastern Europe, Southeast Asia, and other locations with weak law enforcement, the same material is also made in the United States. In fact, there are remote administration tools (RATs) that allow a perpetrator to gain control of a victim’s computer, including a webcam, and film a victim in his or her own bedroom without the victim’s knowledge. This can happen anywhere to anyone.[1]

[1] It is also important to understand that a predator may be able to connect via social media with his or her victim and then use information gleaned from the victim’s social media posts to befriend and “groom” a victim thereby enticing the victim to create videos of himself or herself. Child pornography can be produced anywhere. This same information is used by human traffickers to target and groom victims.

Of course, any unauthorized intrusion into another person’s computer will likely violate the Computer Fraud and Abuse Act; however, if a pedophile is not deterred by the substantial prison sentences imposed in child pornography cases, they are not likely to be deterred by the CFAA.

Civil Recovery for Sexual Abuse.

As a young prosecutor thirty years ago, I prosecuted at least twenty-five child sexual abuse cases that went to trial. Although I obtained convictions in every single case, they were often difficult cases to pursue. The law in those days afforded little protection to victims, and juries would often find a child victim not to be credible. Civil cases on behalf of victims were rare, and substantial verdicts against perpetrators were even more rare. The dynamic seemed to change in the 1990s with the Catholic priest abuse scandals. The first major settlement I remember was a settlement by the Archdiocese of Boston that, in 2003, paid $85 million to settle child sex abuse cases.

These cases are far more common and far more successful. Now, a civil plaintiff can proceed anonymously without revealing his or her name in any court filings. The cases are still emotionally draining for the victim and the victim’s family, but at least the victim can recover for his or her injuries.

Masha’s Law.

Around 2006, Matthew Mancuso, a divorced father from Pennsylvania, decided he wanted to adopt a five-year-old Caucasian girl. Through an adoption agency in New Jersey, he came into contact with Masha Allen, a young girl living in an orphanage in the Russian Federation. Masha had already lived a horrible life up to that point. She was placed in the orphanage after her mother had stabbed her, trying to kill her. While at the orphanage, Masha hoped that she would be adopted by a normal family so that she could lead a normal life.

Mancuso, however, had no desire to give Masha a normal life. After “choosing” her from a video the adoption agency had on file, he applied to adopt her. After waiting for months, he was finally able to travel to Russia to meet her. While he was in Russia, he met her at the orphanage several times, he brought Masha back to the United States where her life was anything but normal. As it turned out, Mancuso was a pornographer who treated Masha as his personal sex slave. He took hundreds of pornographic photos of Masha and then posted them on the internet, sharing them with other pedophiles.

Eventually, he was arrested and sentenced to a fifteen-year federal prison sentence. The images posted online and shared hundreds of times, however, continued to injure Masha long after her “father” was sent to prison. In recognition of the plight of victims like Masha, Congress enacted Masha’s Law, 18 U.S.C. 2255. Masha’s Law is a federal statute that grants a victim of child pornography the right to sue for damages in federal court.

Under Masha’s Law, a victim of child pornography can sue anyone who violates a federal pornography statute by making, storing, sharing, or viewing images of the victim. The statute establishes a minimum recovery of $150,000 in damages for a violation of the statute. The victim may also recover punitive damages and attorney’s fees. Significantly, these damages are in addition to any restitution awarded by a court in a criminal case. Thus, even if a victim is awarded $200,000 in criminal restitution, he or she can still recover at least $150,000 in a civil judgment. Significantly higher damages can be obtained in some cases.

Sexting and “Revenge Porn”.

Closely related to child pornography are the relatively recent phenomenon of sexting and “revenge porn”. Sexting involves taking intimate photos, usually selfies, and then sending those photographs to other people—usually to an intimate partner.[2] While it may seem like a good idea at the time, sexting can have significant adverse consequences, such as when the person receiving the photo decides to send it to other people or post it online. This is a form of sexual abuse, and it can have dire consequences for the person who decides to share these intimate images.

[2] In high schools throughout the United States, there have been hundreds of cases, each involving multiple victims and perpetrators. Usually, the high school student who receives an image from his girlfriend and then decides to share it with the rest of the football team does not understand the irreparable damage he does to the victim or the criminal and civil penalties he faces. Even in cases where a perpetrator is able to avoid life-altering criminal consequences, he may still face large civil judgments.

For starters, if the person who sends the intimate images is a minor, the images constitute child pornography and the person who receives and keeps the images is guilty of possessing child pornography. This can lead to severe criminal sanctions, as set forth above. If doesn’t matter if the victim voluntary posed for and sent the images because a minor can never consent to her or his sexual abuse. Anyone who keeps these images, or, even worse, distributes them, becomes liable for substantial civil damages.

“Revenge porn” may begin with sexting, or an intimate partner taking photos of his or her partner in a compromising position. When these photos are taken, however, the intent is that they remain personal and private. Unfortunately, relationships do not always last, and sometimes, when the relationship ends, the partner who did not end the relationship may then take the intimate photos and share them online. This is commonly referred to as “revenge porn” because the person publishing the images seeks to harm his or her partner as a form of revenge for the breakup.

Most states have laws criminalizing revenge porn (usually as a form of invasion of privacy). Most states also allow a victim of revenge porn to sue the perpetrator. In Pennsylvania, for example, 42 Pa. C. S. 8316.1, allows a victim of revenge porn to recover a minimum of $500 in damages and up to three times the value of the humiliation, as determined by the court. The law also allows for the recovery of attorney’s fees and costs.  In one recent case, a Texas jury returned a verdict of $1.2 billion in favor of a revenge porn victim.

Victims Located Outside the United States.

As has already been noted, child pornography is frequently produced outside the United States and then viewed and shared inside the United States. These child victims are often unknown to U.S. law enforcement even as images of their violent assault are shared over and over again on the internet. If the victim can be identified (as sometimes happens in federal criminal prosecutions) then it may be possible to sue the adult in the United States that viewed and shared the victim’s images.

Child pornography should also be viewed as a form of human trafficking, and just as federal law grants victims of sex trafficking the right to recover damages for their injuries, it also grants a victim of child pornography the right to recover under Masha’s law.

Conclusion.

If you or someone you know has been the victim of child pornography or some other form of pornography, please contact us. We may be able to help.