ChildLaw Blogtag:www.childlaw.us,2010-04-13://72010-07-29T03:34:55ZCommentary, insight and analysis on children's law, policy and current issues.Movable Type Pro 5.01Facebook "Facts"tag:www.childlaw.us,2010://7.4312010-07-29T03:21:49Z2010-07-29T03:34:55ZA Long Island judge has dismissed a $6 million defamation action filed by a teenager against four former classmates who set up a Facebook page on which they joked that the teen used heroin and contracted AIDS by having sex with animals in Africa. The judge ruled that no reasonable person could believe that the allegedly defamatory statements were facts....James R. Marshhttp://www.marshlaw.us
The judge ruled that no reasonable person could believe that the allegedly defamatory statements were facts.
"A reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil."
"Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other."
The judge also dismissed a negligent-supervision claim against the teenagers' parents, saying that a computer does not constitute, as required by New York case law, a "dangerous instrument." "To declare a computer a dangerous instrument in the hands of teenagers in an age of ubiquitous computer ownership would create an exception that would engulf the rule against parental liability," the judge concluded.
The plaintiff in Finkel v. Dauber sought $3 million for the damage to her reputation and character and another $3 million in punitive damages.
In June 2009, a Manhattan judge granted Facebook's motion for summary judgment on the basis of the Communications Decency Act of 1996 which provides immunity to service providers for "information originating with a third-party user."
In dismissing the case, the judge found that "while the posts display an utter lack of taste and propriety, they do not constitute statements of fact. The entire context and tone of the posts constitute evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact."
This case illustrates the continuing difficulty in applying even long-established legal principles to cyberspace where hyperbole and conjecture are contagious. According to this court, the more sensational the statement, the more protection the poster will enjoy. In a world where almost anything is possible, and most of it is posted online, individuals seemingly enjoy less and less protection from even the most outrageous and sensationalistic statements.]]>
Constitution Cannot Keep Special Ed Students in Schooltag:www.childlaw.us,2010://7.4302010-07-29T00:07:07Z2010-07-29T00:38:52ZIn a recent little noticed unpublished First Circuit decision, former USSC Justice Souter held that "whatever the scope of a school’s responsibility towards its students . . . there is no apparent constitutional obligation to impose physical restraint upon teenagers not at immediate risk of harm to themselves or others." This case was brought by mothers of teenagers who were...James R. Marshhttp://www.marshlaw.us
This case was brought by mothers of teenagers who were not physically restrained by school officials from leaving their schools during instructional hours. The mothers brought action under state law as well as 42 U.S.C. § 1983 and § 1988 seeking monetary and injunctive relief for violating Fourteenth Amendment due process, the mothers’ right to preserve family integrity and the children’s right to enjoy freedom from abuse and neglect.
The school system explained their policy of permissiveness by referring to a state education regulation limiting use of lawful physical restraint to instances in which children’s unfettered behavior would raise a risk of “assault or imminent, serious, physical harm” to themselves or others; absent such danger, the prevention of truancy would not be worth the burden of defending the liability claims that would doubtless eventuate.
The magistrate judge hearing the case below recognized that the schools’ refusal to confine children to school premises during school hours effectively converted the state’s compulsory attendance law into the children’s option to wander off into trouble that the parents could not effectively prevent. He suggested that the mothers consider the possibility of relief from the general regulation through Individual Educational Plans for their children as special education students.
The mothers argued that inadequate supervision in schools infringes their rights to maintain the integrity of their families under Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), cases that held it to be beyond the power of states to limit a parent’s choice to provide foreign language instruction in elementary schools or to resort to private education. The Court found, however, that these cases recognized a parent’s liberty to be free from state interference with certain education choices, not a right to require state or local government to run public schools in a way a parent might think they ought to be administered. Any actionable interference with family integrity must be “directly aimed at the parent-child relationship.” Manarite v. Springfield, 957 F.2d 953, 960 (1st Cir. 1992).
Judge Souter further found that the Supreme Court’s discussion in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200 (1989), is on point: “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." According to Souter:
The situation of the children in this case is not even close to facts that would thus raise a state obligation. There is neither restraint of the child (that indeed is the very complaint), nor any practice or circumstance rendering the child unable to care for himself, nor failure to provide basic human needs of food, clothing, shelter, medical care or reasonable safety. As the Supreme Court later observed in Vernonia School District 47J v. Acton, 515 U.S. 646, 655 (1995), “we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional ‘duty to protect’” (citing DeShaney, 489 U.S. at 200).
This decision did not consider any rights parents might have under the Individuals with Disabilities Education Act [IDEA] or other state or federal regulation. Clearly, the court might have found that a policy and practice of allowing special education students to leave with impunity might effectively deny them a free appropriate public education [FAPE]. Beyond this, however, there is no Constitutional duty for schools to keep children in the classroom, nor is there any apparent duty to insure their safety or well-being (or even notice to the parents or police) once they leave school grounds.
The case is Saez v. City of Springfield.]]>
Kansas Passes State "Masha's Law"tag:www.childlaw.us,2010://7.4292010-07-22T22:11:29Z2010-07-22T22:28:35ZAlmost 5 years ago, the Marsh Law Firm was instrumental in enhancing the federal civil legal rights of children who are victims of child pornography. Borrowing from intellectual property law, our firm helped draft, introduce and pass—in just seven months—a comprehensive update to a long-forgotten federal law which gives victims the right to sue anyone who produces, distributes or possess...James R. Marshhttp://www.marshlaw.us
In 2008, Florida passed a state version of Masha's Law. Now Kansas has joined the effort by passing a state law which is modeled on the federal law we helped write.
The bill provides a recovery for actual damages of at least $150,000. In order to bring a civil action against a producer, promoter, or intentional possessor of child pornography the plaintiff must prove that while he or she was under the age of 18, he or she was the victim of an offense that resulted in a conviction, that offense was used in the production of child pornography, and the victim suffered personal or psychological injury as a result.
Civil action may be pursued through private counsel or by the Attorney General at the victim’s request. The bill also creates a three year statute of limitations.]]>
Improving the Legal Representation of Childrentag:www.childlaw.us,2010://7.4282010-07-19T18:07:22Z2010-07-19T18:30:35ZIn October 2009, the U.S. Children’s Bureau named University of Michigan Law School the National Quality Improvement Center on the Representation of Children in the Child Welfare System (QIC-ChildRep). The QIC-ChildRep, is a five-year, $5 million dollar project to gather, develop and communicate knowledge on child representation, promote consensus on the role of the child’s legal representative, and provide one...James R. Marshhttp://www.marshlaw.us
The QIC-ChildRep, is a five-year, $5 million dollar project to gather, develop and communicate knowledge on child representation, promote consensus on the role of the child’s legal representative, and provide one of the first empirically-based analyses of how legal representation for the child might best be delivered.
The Center, which is run by the legendary child advocate Don Duquette, has a great website and promises to answer the following questions:
What should be the duties and responsibilities of the child’s representative in civil child protection proceedings?
Who should represent the child in such proceedings? A lawyer? A CASA? A social worker? A team?
What does the child representative do that makes a difference in a child’s life?
How can effective representation for the child be accomplished? That is, what organizational structure best delivers legal services for a child?
By what criteria is effective child representation to be measured?
How should the child's representative accommodate the child's wishes in setting the goals of the advocacy?
This is a serious initiative which is long overdue and which will significantly advance the representation of children in the child welfare system. I look forward to the results.
]]>
Current Restitution Law is Failing Child Pornography Victimstag:www.childlaw.us,2010://7.4262010-07-07T22:59:51Z2010-07-16T22:37:40ZLegislators and courts have long recognized what common sense makes clear - children depicted in child abuse images[1] are harmed not only by the sexual abuse captured by the images, but also by the subsequent distribution, possession, and viewing of the images of their abuse.[2] Legislators and courts have similarly recognized the importance of awarding restitution to victims who are...James R. Marshhttp://www.marshlaw.us
[1] are harmed not only by the sexual abuse captured by the images, but also by the subsequent distribution, possession, and viewing of the images of their abuse.[2] Legislators and courts have similarly recognized the importance of awarding restitution to victims who are harmed by crime to help make them whole, and to aid in their recovery.[3] Thus, it seems a straightforward proposition that children depicted in child abuse images should be awarded restitution from their offenders, including those offenders who possess and view their abuse. In fact, this simple supposition seems to underpin the statute governing restitution in cases involving sexual exploitation.[4]
Despite the logic, justness, and legality of affording restitution to the victims in child abuse images, federal courts differ greatly in their approach to the restitution rights of these victims[5] in the context of possession cases. As discussed below, over the last year alone, courts have awarded these victims full restitution, partial restitution, di minimus restitution, or even no restitution at all. These differences in outcome can be attributed, at least in part, to varied legal interpretations of the governing restitution statute, 18 U.S.C. § 2259. This article provides a brief overview of the current state of the law, and suggests that a court-based or legislative solution is urgently needed to avoid further victimization of these victims.
]]>
Law Governing Restitution in Possession of Child Abuse Image Cases
Section 2259 of Title 18 of the United States Code governs restitution for offenses involving the sexual exploitation and other abuse of children. Section 2259 provides that a district court “shall order restitution for any offense under [the Sexual Exploitation and Other Abuse of Children Chapter of Title 18].”[6] Possession of material depicting the sexual exploitation of children is an offense under the chapter to which Section 2259 applies.[7] The use of the word “shall” makes awarding restitution to persons who meet the statute’s definition of “victim” mandatory under Section 2259.[8]
Children Depicted in Child Abuse Images are “Victims” for the Purposes of § 2259
Section 2259 employs a broad definition of victim, providing that a “victim” is an “individual harmed as a result of a commission of a crime under [the Sexual Exploitation and Other Abuse of Children Chapter of Title 18].”[9] This broad definition of “victim” stands in contrast to the narrower definition of “victim” contained in other federal restitution statutes. For instance, both the Victim Witness Protection Act[10] and the Mandatory Victim Restitution Act[11] define a “victim” to be a “person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered . . . .”[12] Since neither the word “directly” nor “proximately” appear in Section 2259, according to the statute’s plain language, any “harm” resulting from a qualifying offense is sufficient to create victim status.
Courts have clearly determined that an offender’s possession of child abuse images harms the children depicted therein. The United States Supreme Court first acknowledged such harm in 1982 in New York v. Ferber.[13] In Ferber, the Court upheld a New York
law that criminalized the promotion of child abuse images, finding that “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.”[14] The Court also found that the distribution of child abuse images is “intrinsically related to the sexual abuse of children” because, among other things, “the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.”[15] In reaching this conclusion, the Court noted:
Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography.[16]
In 1998, the Fifth Circuit Court of Appeals expanded upon the Ferber Court’s analysis to find that “the children depicted in child pornography may be considered to be the victims of the crime of receiving child pornography.”[17] The court then articulated three specific harms caused by possession of child abuse images:
First, the simple fact that the images have been disseminated perpetuates the abuse initiated by the producer of the materials. . . . The consumer who “merely” or “passively” receives or possesses child pornography directly contributes to the child’s continued victimization.
Second, the mere existence of the child pornography represents an invasion of the privacy of the child depicted. . . . The recipient of the child pornography obviously perpetuates the existence of the images received, and therefore the recipient may be considered to be invading the privacy of the children depicted, directly victimizing these children.
Third, the consumer of child pornography instigates the original production of child pornography by providing an economic motive for creating and distributing the materials. . . . The consumers of child pornography therefore victimize the children depicted in child pornography by enabling and supporting the continued production of child pornography, which entails continuous direct abuse and victimization of child subjects.[18]
More recently, as discussed below, many federal courts have expressly found that, for the purposes of Section 2259, the possession of child abuse images harms the children depicted therein.
Congress has also recognized the harm caused by possession of child abuse images in a variety of contexts. In the Child Pornography Prevention Act of 1996, Congress found that “where children are used in its production, child pornography permanently records the victim’s abuse, and its continued existence causes the child victims of sexual abuse continuing harm by haunting those children in future years.”[19] More recently, Congress addressed the harm of child pornography in the Adam Walsh Child Protection and Safety Act of 2006.[20] In the legislative history of the Adam Walsh Act, Congress found that “[t]he illegal production, transportation, distribution, receipt, advertising, and possession of child pornography . . . is harmful to the physiological, emotional, and mental health of the children depicted in child pornography and has a substantial and detrimental effect on society as a whole.”[21] Congress noted that “every instance of
viewing child pornography represents a renewed violation of the privacy of the victims and repetition of their abuse.”[22]
As discussed above, Section 2259 requires only that an individual be “harmed as a result of a commission of a [qualifying crime]” to qualify as a “victim,” and further provides that all qualifying victims are entitled to mandatory restitution where the crime of conviction is possession of material depicting the sexual exploitation of children. The findings by courts and Congress make clear that children depicted in child abuse images are harmed not only by the production of such images, but by the distribution and possession of such images. Thus, these victims are entitled to mandatory restitution from their offender(s), including those individuals who possess and view images of their abuse.
The Restitution Analysis in Recent Possession Cases
Since July 2009, over a dozen federal district courts have grappled with the specific question of restitution owed to victims depicted in child abuse images when the crime at issue is possession.[23] During this time, every court that reached the issue found that the victim depicted was harmed by the offender’s possession of the images depicting his or her abuse.[24]
Despite their consistency in finding the requisite harm to the victims, these courts have split on how much restitution to award to the victims depicted in the images. Only one court has awarded the full restitution requested,[25] while others have awarded partial restitution,[26]di minimus restitution,[27] or no restitution at all.[28] The difference in outcome seems to mainly
turn on the courts’ causation analyses - meaning what offer of proof the court deems necessary to establish a causal connection between the defendant’s specific offense and the victim’s harm.
The one court that awarded full restitution relied on “credible and persuasive” expert testimony that the child depicted in the images was harmed by the possession and distribution of her images.[29] With this finding of harm, the court held that the child was a “victim” under Section 2259, and was, pursuant to the statute, entitled to recover in restitution the full amount of her losses.[30] The court then turned to the calculation of the victim’s full amount of loss, and gave credence to the evidence put forth by the government and the victim’s attorney regarding lost wages and benefits, as well as future counseling costs, and held the defendant jointly and severally liable, for the full amount, with other defendants ordered to pay restitution to the victim, recognizing that some of these defendants had yet to be identified.[31] Notably, the court held that the fact that the victim did not have personal knowledge of this particular defendant’s activities at the time experts evaluated her and calculated her full loss did “not negate the harm that [she] suffered and continues to suffer as a result of this defendant’s possession of images depicting her sexual abuse as a child.”[32]
One court that awarded partial restitution relied on the victim’s impact statement as well expert testimony regarding harm, and held that each person who possesses and uses the images of the victim exacerbates the harm that the original production and distribution caused, and that, despite the fact that hundreds or thousands
may possess the same images, the defendant’s conduct “remains a substantial cause of that harm.”[33] In analyzing the victim’s claim of loss, the
court determined that the evidence presented to demonstrate loss improperly conflated the harm that the victim suffered from the possession of the images with the harm that she suffered as a result of the abuse depicted in the
images.[34] The court therefore analyzed each of the victim’s requests in order to decipher which loss could be shown to be causally related to a possession offense. Using this analysis, the court refused to order restitution for loss of income or benefits, holding that the government failed to meet its burden to show a causal connection between such loss and defendant’s possession.[35] With regard to counseling costs, however, the court held that the harm from production, distribution, and possession “are closely related for purposes of counseling and cannot be separate[d] to allocate costs between them as it appears that [the victim] will require counseling for both.”[36] Relying on the language of Section 2259 that requires an award for the full amount of damages, the court held the defendant liable for what it determined to be the full amount of future counseling costs.[37]
The courts that have awarded di minimus restitution have determined that although restitution is mandatory in all possession cases under Section 2259, the definition of “victim” in the statute requires some showing of a casual connection between the defendant’s possession and specific losses before restitution can be awarded. For these courts, “Section 2259 leaves the court in a legal quandary: The court must award restitution and the government must show the harm caused by [defendant], but it is difficult to determine the amount of harm caused by [defendant].”[38] To resolve this “difficult determination,” these courts looked to 18 U.S.C. § 2255, which provides that the minimum amount recoverable in an action for personal injuries caused by the sexual exploitation of children is $150,000.[39] Based on this figure, and, through a discount calculation (the basis of which is less than clear), each came to a di minimus restitution award.<[40]
The courts that have declined to award restitution have rejected the government’s argument that Section 2259 does not require it to establish by a preponderance of the evidence that a specific loss was proximately caused by an individual defendant’s specific offense.[41] Based upon this reading of the law of causation, these courts have determined that, despite substantial victim impact statements and expert reports detailing “tragic harms” to the victim, the government and victim failed to prove by a preponderance of the evidence that any specific portion of the victim’s harm was proximately caused by the
defendant’s specific possession or viewing of the images at issue, as opposed to the initial abuse or other acts of receipt and distribution.[42] Unlike the di minimus courts, these courts have not turned to the civil statute for guidance to calculate a minimum amount of harm, and instead have refused to award any restitution.
So which court(s) are correctly analyzing the restitution issue? A key canon of statutory interpretation dictates that when interpreting a statute one must look to the language of the statute itself.[43] Therefore, to determine whether causation is sufficiently established by a showing that the individual is a victim who is depicted in the images such that he or she meets the definition of “victim” under Section 2259, and what showing of causation is required for a victim to recover restitution from any particular defendant requires an analysis of the language of Section 2259.
Causation Under Section 2259
Section 2259 mandates restitution for “the full amount of the victim’s losses as determined by the
court.”[44] Under the statute, the term “full amount of
the victim’s losses” includes any costs incurred by the victim for:
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys’ fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.[45]
As the plain language makes clear, five of the six categories of losses recognized in Section 2259 do not contain a proximate cause requirement. Only the sixth “catchall” category of losses contains such a requirement.
Another common canon of statutory construction provides that, where Congress includes particular language in one section of a statute but omits it in another section of the same law, the omission is presumed intentional.[46] The presumptively intentional omission of “proximate result” in the first five of the subsections suggests that Congress did not want burden victims of child abuse images with a requirement that they show a proximate cause for these losses.
As discussed above, Section 2259 employs a broad definition of victim, providing that a “victim” is
an “individual harmed as a result of a commission of a crime under [the Sexual Exploitation and Other Abuse of Children Chapter of Title 18].”[47] As also discussed above, courts and Congress have made clear findings that children depicted in child abuse images are harmed when someone possesses the images of their abuse. Thus, relying on the plain language of the statute, and court and Congressional findings, sufficient causal connection for categories of loss (A)-(E) is established upon a finding that the individual asserting victim status is, in fact, the person depicted in the image that is possessed.
Courts that have ordered di minimus restitution or no restitution require - contrary to the plain language of Section 2259, congressional intent, and good public policy - a causal connection of proximate cause for all six categories of claims. While this is not an ideal approach, victims in child abuse image possession cases are likely to meet such a requirement. Under general tort law,[48] the outcome of an act need only be foreseeable to establish that the act is the proximate cause of that outcome. "[W]hat is required to be foreseeable is only the general character or general type of the event or harm and not its precise nature, details, or above all manner of occurrence."[49] Thus, the applicable test “is whether the defendant reasonably should have anticipated any injury” resulting from his conduct.[50] As noted above, courts and Congress have determined that every possessor of child abuse images harms the victim depicted in the images, and that possession of the images is, in fact, causally connected to the original creation and the distribution of these images. Thus, it is entirely foreseeable that each defendant who possesses the images harms the victim.[51]
Conclusion
It is well-recognized that children depicted in child abuse images suffer life-long harm from the sexual abuse captured in the images, as well as by the distribution, possession, and viewing of the images their abuse. It is also well-established that victims of these crimes should receive restitution for their harm. As discussed above, over the last year alone, courts have awarded a wide range of restitution these victims - full, partial, di minimus, or even no restitution at all. These varied outcomes turn on the evidence that courts require regarding the relationship of the harm endured by the victim and the actions of a particular defendant.
A proper reading of Section 2259, together with prior court and Congressional findings on the harms that stem from possession, mandates that this causal relationship is sufficiently established as soon as a victim meets the statute’s definition of “victim.” Despite this, some courts are requiring that before a victim recover restitution they must endure a new harm - learning the details of each possessing offender’s conduct so that they can meet a burden of demonstrated harm from specific conduct of each defendant’s possession. Many of these victims have started on their path of recovery and have submitted to courts substantial evidence of harm and the costs they have, and will incur, from this harm. To require these victims to learn details of each possession will cause them new and increased harm, and flies in the face of public policy and congressional intent. The better approach is to recognize that the harm suffered by these victims is complex and life-long.
Given the intertwining and interrelatedness of production, distribution, and possession, artificially segregating the harms from each of aspect the victim’s abuse is improper. Instead courts should recognize that that the harm from production, distribution, and possession “are closely related” and “cannot be separate[d] to allocate costs between them,”[52] and require all defendants to be jointly and severally liable for the full amount of the victim’s losses. If courts will not or cannot reach this outcome, the law must be clarified to ensure that these victims are afforded restitution for the full amount of their losses without requiring them to endure further victimization at the hands of the criminal justice system.
This article originally appeared in NCVLI News, 12th Edition (2010).
It was written by Meg Garvin, MA, JD and is reproduced here with permission.
[1] “Child pornography” is a term often used to describe an image that depicts a child being sexually abused. While the term is commonly accepted, its use dilutes the reality of what the image depicts, and the immense harm it causes the child depicted. Consequently, throughout this article the term “child abuse image” will be used instead of “child pornography” whenever possible.
[2]See, e.g., Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 501, 120 Stat. 587, 624 (2006) (“Every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse.”); New York v. Ferber, 458 U.S. 747, 759 (1982) (finding that the distribution of child abuse images is
“intrinsically related to the sexual abuse of children” because, inter alia,
“the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation”); United States v. Norris, 159 F.3d 926, 929-30 (5th Cir. 1998) (noting that the receipt of child abuse images harms the children depicted in the images because the crime (1) “perpetuates the abuse initiated by the producer of the material”; (2) “represents an invasion of the privacy of the child depicted”; and (3) “instigates the original production of child pornography by providing an economic motive for creating and distributing the materials”).
[3]See S. Rep. No. 104-179, at 12 (1996), as reprinted in 1996 U.S.C.C.A.N. 924, 925 (noting that the purpose of the Mandatory Victims Restitution Act, (MVRA), 18 U.S.C. § 3663A(b)(2)(C) was “to ensure that the loss to crime victims is recognized, and that they receive the restitution that they are due” because “[i]t is [ ] necessary to ensure that the offender realizes the damage caused by the offense and pays the debt owed to the victim as well as to society”); Hughey v. United States, 495 U.S. 411, 416 (1990) (stating that “ the ordinary meaning of ‘restitution’ is restoring someone to a position he occupied before a particular event”); United States v. Boccagna, 450 F.3d 107, 115 (2d Cir. 2006) (“[I]t can fairly be said that the primary and overreaching purpose of the MVRA is to make victims of crime whole, to fully compensate these victims for their losses and to restore these victims to their original well-being.”) (quotation marks and citations omitted).
[4]See 18 U.S.C. § 2259(a) (mandating full restitution for children who are the victims of sexual exploitation and other abuse).
[5] This article addresses only the issue of awarding restitution to those victims in child abuse images who have been identified, not the larger issue of how to help those thousands or tens of thousands of children whose identities are unknown. The National Center for Missing and Exploited Children is the organization that maintains the national identification database for these children, and is diligently working to identify more and more of the victims in the materials containing child abuse images that defendants possess.
[8]SeeNat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661-62 (2007) (“As used in statutes . . . this word [shall] is generally
imperative or mandatory.”) (citations omitted).
[23]See, e.g., United States v. Scheidt, 1:07-CR-00293, 2010 WL 144837 (E.D. Cal. Jan 11, 2010); United States v. Ferenci, No. 1:08-CR-0414, 2009 WL 2579102 (E.D. Cal. Aug. 19, 2009); United States v. Monk, No. 1:08-CR-0365, 2009 WL 2567831 (E.D. Cal. Aug. 18, 2009); United States v. Renga, No. 1:08-CR-0270, 2009 WL 2579103 (E.D. Cal. Aug. 19, 2009); United States v. Zane, No. 1:08-CR-0369, 2009 WL 2567832 (E.D. Cal. Aug. 18, 2009); United States v. Simon, No. CR-08-0907, 2009 WL 2424673 (N.D. Cal. Aug. 7, 2009); United States v. Staples, No. 09-14017, 2009 WL 2827204 (S.D. Fla. Sept. 2, 2009); United States v. Van Brackle, No. 2:08-CR-042, 2009 WL 4928050 (N.D. Ga. Dec. 17, 2009); United States v. Berk, No. 08-CR-212, 2009 WL 3451085 (D. Me. Oct. 26, 2009); United States v. Aumais, No. 08-CR-711 (N.D.N.Y. Jan. 13, 2010); United States v. Brunner, No. 5:08cr16, 2010 WL 148433 (W.D.N.C. Jan. 12, 2010); United States v. Hicks, No. 1:09-CR-150, 2009 WL 4110260 (E.D. Va. Nov. 24, 2009); United States v. Paroline, No. 6:08-CR-61, 2009 WL 4572786 (E.D. Tex. Dec. 7, 2009). The only federal circuit court of appeals to address this precise issue resolved the matter on standard of review grounds rather than engaging the merits of the arguments. See In re Amy, 591 F.2d 792 (5th Cir. 2009).
[24]e.g., Scheidt, 2010 WL 144837, at *4; Ferenci, 2009 WL 2579102, at *4; Monk, 2009 WL 2567831, at *4; Renga, 2009 WL 2579103, at *4; Zane, 2009 WL 2567832, at *4; Staples, 2009 WL 2827204, at *3; Van Brackle, 2009 WL 4928050, at *3; Berk, 2009 WL 3451085, at *7; Aumais, No. 08-CR-711, at 13; Brunner, 2010 WL 148433, at *2; Hicks, 2009 WL 4110260, at *3; Paroline, 2009 WL 4572786, at *4. But see Simon, 2009 WL 2424673, at * 6 (stating in dicta that the government had failed to meets its burden to show a causal connection between defendant's possession of child abuse images and harm to the victim).
[40]See, e.g., Scheidt, 2010 WL 144837, at *5 ("The court finds that $3,000 should be awarded as restitution in favor of [the victim]. This amount is two percent of the $150,000 amount reflected in Section 2255. Given the high amount of the deemed damages in Section 2255, the court finds an amount less than $3,000 inconsistent with Congress's findings on the harm to children victims of child pornography. At the same time, the court finds $3,000 is a level of restitution that the court is confident is somewhat less than the actual harm this particular defendant caused each victim, resolving any due process concerns."); Ferenci, 2009 WL 2579102, at *5 (same); Monk, 2009 WL 2567831, at *5 (same); Renga, 2009 WL 2579103, at *5 (same) ; Zane, 2009 WL 2567832, at *5 (same); Hicks, 2009 WL 4110260, at *6 ("In the end, the Court finds that the amount of $3,000, the amount identified as the correct restitution figure in several of the previously-decided [cases involving the same victim of the child abuse images], plus attorney's fees, is appropriate. The Court believes that at least fifty defendants will be successfully prosecuted for unlawfully possessing or receiving the [series of abuse images of the victim], given the numbers prosecuted to date. If restitution orders of $3,000 per case result, [the victim] will be compensated in full. Like the Eastern District of California, this Court is confident that the amount of harm [defendant] actually inflicted upon [the victim] exceeds the amount awarded, and thus [defendant] has little to protest in the way of due process or otherwise.").
[41]See, e.g., Van Brackle, 2009 WL 4928050, at *4; Berk, 2009 WL 3451085, at *5.
[42]See, e.g., Van Brackle, 2009 WL 4928050, at *5; Berk, 2009 WL 3451085, at *8.
[43]Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1985).
[48] There are a variety of causation analyses that can be used, each of which applies to particular circumstances. This article is using the causation analysis from tort to exemplify how even under this analysis the courts are going astray.
[49]See Prosser and Keeton on the Law of Torts § 43, at 299 (5th ed. 1984) 4 Harper, James and Gray on Torts § 20.5(6), at 203 (3d ed. 2007) ("Foreseeability does not mean that the precise hazard or the exact consequences that were encountered should have been foreseen.").
[50]Elliot v. Turner Const. Co., 381 F.3d 995, 1006 (10th Cir. 2004) (emphasis in original).
[51] Notably, the victims in each of the cases that have issued from district courts since July 2009 discussed above did not rest on these presumptions, but presented considerable expert testimony and evidence of their losses, as well as victim impact statements recounting the harm. For instance, one victim submitted an impact statement that states, in part: "It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it. It's like I'm being abused over and over again."
]]>
Investigation Confirms Wikipedia-Pedophile Connectiontag:www.childlaw.us,2010://7.4242010-06-25T17:27:18Z2010-06-25T17:44:45ZAccording to a FOXNews.com exclusive investigation, inspired in part by this blog's April 20th post Wikipedophilia: Wikipedia has become home base for a loose worldwide network of pedophiles who are campaigning to spin the popular online encyclopedia in their favor and are trying to lure more people into their world, an investigation by FoxNews.com confirms. Chat room posts show a...James R. Marshhttp://www.marshlaw.us
Wikipedophilia:
Wikipedia has become home base for a loose worldwide network of pedophiles who are campaigning to spin the popular online encyclopedia in their favor and are trying to lure more people into their world, an investigation by FoxNews.com confirms.
Chat room posts show a clear effort by pedophiles to use Wikipedia, which can be accessed unfiltered in public schools across the country, to further their agenda. Message board posts often include links to specific Wikipedia articles that the participants say need to be edited to "normalize" pedophile behavior in the public eye and to recruit more pedophiles into their community.
“Pedophiles have campaigned to push their point of view that 'pedophilia is OK and doesn’t hurt children' on Wikipedia,” says Xavier Von Erck, director of the online pedophile watchdog organization Perverted Justice Foundation and Wikisposure.com, its offshoot project devoted to tracking pedophiles and pedophile activism on Wikipedia. “This has been a problem since Wikipedia started.
A series of FOXNews.com exposés last month resulted in a shakeup at the top levels of Wikipedia as administrators tried to deal with the growing controversy surrounding pornographic images that appear on the online encyclopedia and its associated websites.
After much pressure from within the Wikipedia community, co-founder Jimmy Wales was forced to relinquish his top-level control over the encyclopedia's content, as well as all of its parent company's projects.
According to FOXNews.com, though he remains the chairman emeritus of the Wikimedia Foundation, Wales is no longer able to delete files, remove administrators, assign projects or edit any content. Essentially he has gone from having free reign over the content and people involved in the websites to having the same capabilities of a low-level administrator.
Insider sources and publicly available internal listserve discussions revealed that Wikimedia editors rebelled against Wales' attempts to remove pornographic images from the nonprofit's websites. Those images were the subject of heated discussion within the community since their existence was revealed by FoxNews.com on April 27.
Hundreds of listserve discussions among Wikimedia board members, administrators and editors reveal the eruption of a heated and chaotic debate over whether to delete the images, which legal analysts say may violate pornography and obscenity laws.
On May 7, FoxNews.com reported exclusively that Wales had personally deleted many of the images from Wikimedia's servers, and that he'd ordered that thousands more be purged. Now many of those images have been restored to their original web pages.
ChildLaw Blog posts on Wikipedia]]>
Masha Allen's Long-Running Lawsuit Dismissedtag:www.childlaw.us,2010://7.4232010-06-22T22:45:57Z2010-06-23T00:02:12ZAlmost two years after a federal lawsuit was filed to secure the civil legal justice demanded by Congress in 2006, Masha Allen's federal lawsuit was dismissed today--incredibly--for "failure to properly plead a basis for federal jurisdiction." Despite the trenchant involvement of a reconstructed legal team consisting of much-sought after guardian ad litem Cambria County bankruptcy attorney Timothy J. Sloan (who...James R. Marshhttp://www.marshlaw.us
Despite the trenchant involvement of a reconstructed legal team consisting of much-sought after guardian ad litem Cambria County bankruptcy attorney Timothy J. Sloan (who replaced Masha's former mother Faith Allen as lead plaintiff), Georgia attorneys David S. Bills (who blogs anonymously about Masha's case at poundpuplegacy.org), William Q. Bird and Darren Summerville (who were originally hired by Faith Allen who reportedly now lives in Georgia), and Pennsylvania First Amendment attorney Thomas Vecchio (who replaced renowned Philadelphia attorney Robert N. Hunn who withdrew under protest last year), Masha "did not oppose (and consents to) dismissal [of the lawsuit] without prejudice on ground of lack of subject matter jurisdiction."
Masha, who turns 18 in August, vowed to fight on by "pursuing the claim outlined in the Amended Complaint in an alternative forum." No word yet on where her case is headed, if anywhere.
Despite the involvement of no less than 27 attorneys in the last 7 years, justice remains elusive for one of the most notorious victims of child trafficking in recent history.
Order to Show Cause Letter Consenting to Dismissal]]>
Sexting Student Sues Schooltag:www.childlaw.us,2010://7.4192010-05-20T23:01:25Z2010-05-20T23:14:50ZThe ACLU filed a federal lawsuit today against Pennsylvania school district for searching a student's confiscated cell phone without probable cause and punishing her for storing semi-nude pictures of herself on the device. The school subsequently turned her phone over to George Skumanick Jr., at the time the Wyoming County district attorney, who threatened to file felony child pornography charges...James R. Marshhttp://www.marshlaw.us
The Third Circuit recently threw out the prosecutor's case.
"Students do not lose their privacy rights at the schoolhouse door," said Witold Walczak, the ACLU of Pennsylvania's Legal Director and one the student's lawyers. "School administrators have no more right to look through personal photographs stored on a student's cell phone then they have the right to rummage through her purse, read her diary and mail, or view her family photo album."
In January 2009, a teacher confiscated the cell phone of N.N., a 17-year-old senior, for using a cell phone on school grounds in violation of school policy. Later that morning, Principal Gregory Ellsworth informed N.N. that he had found "explicit" photos stored on her cell phone, which he turned over to law enforcement. He then gave her a three day out-of-school suspension, which she served. According to the student handbook, the first offense for misuse of a cell phone is a ninety-minute Saturday detention and the confiscation of the phone for the rest of the day.
The photographs, which were not visible on the screen and required multiple steps to locate, were taken on the device's built-in camera and were never circulated to other students. N.N. appeared fully covered in most of the photographs, although several showed her naked breasts and one indistinct image showed her standing upright while fully naked. The photographs were intended to be seen only by N.N.'s long-time boyfriend and herself.
"I was absolutely horrified and humiliated to learn that school officials, men in DA's office and police had seen naked pictures of me," said N.N., who graduated in 2009. "Those pictures were extremely private and not meant for anyone else's eyes. What they did is the equivalent of spying on me through my bedroom window."
A few days later, N.N. and her mother received a letter from then-District Attorney George Skumanick threatening felony child pornography charges if she did not complete a five-week re-education course on violence and victimization offered by the DA's office and the Victim's Resource Center. According to the suit, N.N. reluctantly agreed to take the course rather than face prosecution.
"Ironically N.N. was forced to take a class about victimization by the very people who were victimizing her," said Jacob C. Cohn of Cozen O'Connor, one of N.N.'s lawyers.
The lawsuit, filed in the U.S. District Court for the Middle District of Pennsylvania, charges that the search of the cell phone and the punishment for the content of the photographs violated N.N.'s rights under the First and Fourth Amendments to the U.S. Constitution and the Pennsylvania constitution. It seeks to have all electronic and hard copies of the photographs destroyed.]]>
International Adoption Law Update: L.M.B. v. E.R.J.tag:www.childlaw.us,2010://7.4172010-05-10T23:51:48Z2010-05-11T00:33:46ZThis unusual international adoption case, which was recently decided by New York's highest court, has far-reaching implications for current and future best-practices as well as important policy implications. In L.M.B. v. E.R.J., 2010 NY Slip Op 1345; 14 N.Y.3d 100 (February 16, 2010), the New York Court of Appeals was called upon to untangle a New York adoption by ERJ...James R. Marshhttp://www.marshlaw.us
L.M.B. v. E.R.J., 2010 NY Slip Op 1345; 14 N.Y.3d 100 (February 16, 2010), the New York Court of Appeals was called upon to untangle a New York adoption by ERJ (mother) and a Cambodian adoption by LMB (father). Each adoptive parent, who were never married to one another, claimed to be the child's only legal parent.
The child, Doe, was found abandoned in Cambodia and brought to New York by ERJ for medical treatment. Subsequently ERJ and her boyfriend, LMB, decided that they would both adopt Doe. Both ERJ and LMB erroneously believed that Cambodian children could not be adopted in the United States. It was decided that LMB (who because he had been born in Trinidad and could reclaim Trinidadian citizenship) would adopt Doe in Trinidad and Tobago. Once that adoption was finalized, ERJ would adopt Doe in New York.
As part of this plan, Cambodia issued a “document” to LMB in June 2004 which, according to the translation submitted by LMB, was entitled “ADOPTION CERTIFICATE” and stated that LMB “is allowed to adopt” Doe. The Trinidadian adoption plan never materialized. ERJ then decided she could adopt Doe in New York. LMB asked Cambodia to “relinquish” the permission he was given to adopt Doe and ERJ obtained a “certificate” like the one which was originally given to LMB.
In January 2006, ERJ filed a petition to adopt Doe in New York but did not give LMB notice of the adoption.This adoption was granted in June 2006. In August 2006, LMB discovered this adoption and moved to vacate. In the meantime the Cambodian government issued documents affirming ERJ's right to adopt and nullifying LMB's.
The lower court declared the New York adoption invalid because the 2004 Cambodian action was actually an adoption of Doe by LMB, not just permission to adopt. Based on the facts and expert testimony, the court agreed with LMB that he was Doe's father and that his parental rights had never been relinquished or extinguished. Therefore, ERJ could not adopt Doe in New York without notice to and consent from LMB.
On appeal, ERJ argued that New York should not give comity to the Cambodian adoption and claimed that LMB was not Doe's father under New York law. The Court of Appeals explained that foreign adoptions are generally recognized unless there are truly compelling reasons not to, like cases in which “enforcement . . . is shocking to the prevailing moral sense.” Because there were no compelling reasons not to recognize his Cambodian adoption of Doe, LMB's adoption would be recognized by New York.
Interestingly, the Court of Appeals raised an argument ERJ failed to make. In 2004, Doe and LMB were living in New York, not Cambodia, and Doe had very little, if any, prospect of ever returning to Cambodia. Thus, in 2004 New York had as much legal interest in who should adopt Doe as Cambodia. ERJ's fatal error was ignoring the premise that Cambodia's position on the status of it own citizen was at least entitled to some recognition in New York.
Once the Cambodian adoption was given effect however, LMB's subsequent surrender of his parental rights was governed by New York, not Cambodian law. Since LBM's surrender of his parental rights was improper under New York law, it was declared void. The Court held that “when New York parents have acquired, by virtue of a foreign country adoption, parental rights that are recognized in New York, those rights can no longer depend on the vagaries of a foreign country's law”.
[The court gave no weight to ERJ's “act of state” argument and rejected her “best interest of the child” argument by pointing out that the child's best interest do not “automatically” validate an “otherwise illegal adoption” and the father's rights cannot be ignored because a court thinks the child should be adopted by someone else.]
This opinion bears close reading reading because the issues are sure to appear again in different factual and legal situations. The most important principle to remember is that once a foreign adoption is finalized, the law of the state where the child resides controls all future legal decision-making about that child. Adoptive parents will not be allowed to return to the country where the adoption was originally finalized to make any changes concerning the child's custody, guardianship or legal parents. What the Court did not decide is what would happen if the original foreign decree was illegal, invalid or procured by fraud or corruption. That issue will have to wait for another day which will surely come soon.
Guest analysis by Harvey Schweitzer, Esq.
Mr. Schweitzer is a lawyer whose practice in Washington D.C. and Maryland focuses on legal matters pertaining to children and the provision of services to children including foster care, child abuse and neglect, adoption,custody and mandatory reporting. He is the co-author of Foster Care Law: A Primer. Contact him at harvey@schweitzerlaw.net or go to www.schweitzerlaw.net]]>
Wikipedia's Porn Promoting Purgatorytag:www.childlaw.us,2010://7.4162010-05-07T19:54:26Z2010-05-07T20:06:40ZSometimes one thing leads to another and then another and then ultimately purgatory. That's exactly where Wikipedia is finding itself after a tip on ChildLaw blog led to this FoxNews.com story which led to action by Congress and now this. According to FoxNews.com: The parent company of the online encyclopedia Wikipedia is rapidly purging thousands of explicit pornographic images from...James R. Marshhttp://www.marshlaw.us
ChildLaw blog led to this FoxNews.com story which led to action by Congress and now this.
According to FoxNews.com:
The parent company of the online encyclopedia Wikipedia is rapidly purging thousands of explicit pornographic images from its websites as it prepares to announce a new policy regarding sexually explicit content in response to reporting by FoxNews.com.
The move came as FoxNews.com was in the process of asking dozens of companies that have donated to Wikimedia Foundation -- the umbrella group behind Wikimedia Commons and its Wiki projects, including Wikipedia -- if they were aware of the extent of graphic and sexually explicit content on the sites.
Among the donors to Wikimedia Commons who were contacted by FoxNews.com were Google, Microsoft's Bing, Yahoo!, Open Society Institute, Ford Foundation, Best Buy, USA Networks and Craigslist Foundation.
These images were and in some cases still are easily accessible to anyone, including school children, many of whom receive unfiltered access to Wiki projects in schools across the country. A child doing homework research on the educational website could easily stumble upon pornographic photos — including close-ups of genitalia and people having sex and masturbating. There's even a “nude children” category.
Check out the entire late breaking story here at FoxNews.com!]]>
See no evil . . .tag:www.childlaw.us,2010://7.4152010-05-04T20:31:16Z2010-05-04T20:41:39ZA report issued yesterday by attorneys hired by the Lower Merion School District found that the collection of images stemmed not from an effort to spy on students but from "the district's failure to implement policies, procedures and recordkeeping requirements and the overzealous and questionable use of technology by IS personnel without any apparent regard for privacy considerations or sufficient...James R. Marshhttp://www.marshlaw.us
The report also criticized leaders and several members of the IS department as "not forthcoming with the Board, administrators and students about what TheftTrack could do and how they used it," citing incidents demonstrating "an unwillingness ... to let anyone outside of the IS Department know about TheftTrack's capabilities."
The report said the tracking system was intended to help recover stolen computers and the district used it successfully for that purpose. But it said the district also used the system for missing computers and for unknown purposes and left it activated for long periods in cases "in which there was no longer any possible legitimate reason" for capturing images.
The report faults administrators who had information about the program with not having appreciated the privacy concerns raised.
The most interesting part of the report confirms the allegation by student Blake Robbins and his family about alleged privacy violations over webcam images taken at home without their knowledge.
The report says Robbins turned in his laptop with a broken screen and was issued a loaner on Oct. 20, but school officials quickly moved to retrieve it due to outstanding insurance fees. So the tracking program was activated from Oct. 20 to Nov. 4 and captured 210 webcam photographs and 218 screen shots, the report said.
Although a technician confirmed on the first day of tracking that the laptop was "now currently online at home," another official in the same department instructed him to keep the tracking on and later told investigators he thought he needed authorization to terminate it, the report said.
On Oct. 30, the report said, a technician saw a computer screen shot that "included an online chat that concerned him." After consulting with a superior, he allowed school officials to look at the images.
Although the school principal said none of the images should be discussed with Robbins or his parents because they involved off-campus activities, Vice Principal Lindy Matsko decided about a week later it was "appropriate to discuss certain seemingly troubling images" with them, the report said.
In the civil lawsuit, Robbins said Matsko approached him and warned that school officials, based on webcam photos, suspected him of selling drugs. Robbins, 15, denies the drug allegation and said Matsko mistook Mike & Ike candies for illicit pills.
Robbins family attorney Mark Haltzman told reporters at the meeting that he and his clients were "thankful that we've been vindicated ... about all the misuse going on," but he added he was concerned that the full story had not yet been revealed.
The report notes Robbins "was not disciplined as a result of any images captured from his laptop."]]>
Congress Reacts to Wikipedia Firestormtag:www.childlaw.us,2010://7.4142010-04-29T19:12:14Z2010-04-29T19:37:44ZFoxNews.com was recently informed that the day after the Wikipedophilia post appeared on this blog, Sen. Sherrod Brown, D-Ohio, sent a copy of Wikipedia co-founder Larry Sanger's letter to the FBI. Rep. Steve Austria, R-Ohio, sent a copy of the same letter to the FBI on April 27. Perhaps this is the kind of bi-partisanship we've all been waiting for....James R. Marshhttp://www.marshlaw.us
Wikipedophilia post appeared on this blog, Sen. Sherrod Brown, D-Ohio, sent a copy of Wikipedia co-founder Larry Sanger's letter to the FBI. Rep. Steve Austria, R-Ohio, sent a copy of the same letter to the FBI on April 27. Perhaps this is the kind of bi-partisanship we've all been waiting for. Stay tuned for updates which are posted here on FoxNews.com.
An interesting side note: Wikipedia apparently got its start in the world of online pornography. According to an article on Wikipedia:
Bomis (pronounced /ˈbɒmɨs/ to rhyme with "promise") is a dot-com company founded in 1996. Its primary business is the sale of advertising on the Bomis.com search portal. It was founded by [the current head of Wikipedia] Jimmy Wales and Tim Shell, and provided support for the free encyclopedia projects Nupedia and Wikipedia.
On the Bomis.com site, Bomis creates and hosts web rings around search terms popular among male users. The rings are currently categorized broadly as "Babe", "Entertainment", "Sports", "Adult", "Science fiction", and "Other". The "Adult", "Babe", and "Entertainment" categories are the most frequently updated and the most popular. Revenue from search-related pages is generated from advertising and affiliate marketing.
Bomis ran a website called Bomis Premium at premium.bomis.com until 2005, offering customers access to premium, X-rated pornographic content.
Until mid-2005, Bomis also featured the Bomis Babe Report, a free blog, publishing news and reviews about celebrities, models, and the adult entertainment industry. The Babe Report prominently linked to Bomis Premium and frequently posted updates about new models joining Bomis. Bomis has also operated nekkid.info, a free repository of selected erotic photographs, and continues to host The Babe Engine, "a precision babe search engine", which indexes photos ranging from glamour photography to pornography.
Bomis is best known for having supported the creation of the free-content online encyclopedia projects Nupedia and Wikipedia. Bomis hosted Nupedia in 2000, and Larry Sanger was hired to manage and edit that project.
For a while, Bomis provided web servers and bandwidth for these projects, paid Sanger in his role as project editor-in-chief (until he left the projects in 2002), and owned key items such as the associated domain names. However, as the costs of Wikipedia rose with its popularity, Bomis' revenues declined as result of the dot-com-crash, a general reluctance to display advertising on the site—together with a desire from the Wikipedia community to reflect the spirit of openness and neutrality central to Wikipedia—suggested an alternative ownership model.
The Wikimedia Foundation was formally announced on June 20, 2003. All intellectual property and domain name assets were transferred or donated over to the foundation because it was registered as a non-profit organization, but the server hardware was not transferred. Bomis CEO Tim Shell became the Vice Chair of the Board of Trustees. Larry Sanger had left the project by this time, but Jimmy Wales retains a role on the board of the Foundation, along with users elected from the Wikimedia community. In December 2006 Tim Shell was replaced by Jan-Bart de Vreede. The Foundation now funds the operation of Wikipedia (and its sister projects) primarily through donations from readers.
Read the full post about Bomis on Wikipedia here (as long as it lasts).]]>
Wikipedia Responds to FOXNews.com Storytag:www.childlaw.us,2010://7.4132010-04-28T19:01:12Z2010-04-28T19:38:25ZYesterday, FOXNews.com published this story online entitled "Wikipedia Distributing Child Porn, Co-Founder Tells FBI." Now both the Wikimedia Foundation and one subject of the exposé, Erik Möller, have responded. According to the Wikimedia blog: The story repeats serious falsehoods and offers information taken grossly out of context, resulting in what amounts to a deliberate misrepresentation of reality. The Wikimedia Foundation...James R. Marshhttp://www.marshlaw.us
this story online entitled "Wikipedia Distributing Child Porn, Co-Founder Tells FBI." Now both the Wikimedia Foundation and one subject of the exposé, Erik Möller, have responded.
The story repeats serious falsehoods and offers information taken grossly out of context, resulting in what amounts to a deliberate misrepresentation of reality.
The Wikimedia Foundation is appalled and angry that Erik’s employment with us has resulted in him becoming a target, and we believe that recklessly maligning him is indefensible
On the topic of allegedly illegal materials on Wikipedia and our projects: The Wikimedia Foundation obeys the law. In the weeks since Sanger’s published allegations, the Wikimedia Foundation has not been contacted by the FBI or any other law-enforcement agency with regard to allegedly illegal content on any Wikimedia projects.
Read the full post here. Wikipedia Deputy Director Erik Möller also responded to the FOXNews.com report on his blog:
Today, past defamatory allegations based on an anonymous smear letter which distorted and misrepresented early online comments and writings of mine, were resurrected by Fox News. I want to say definitively: I do not defend nor support acts of sexual violence against children and have never defended pedophilia in any way. Any claims to the contrary are false and a deliberate distortion of my views. Any repetition of those claims is, at best, reckless and irresponsible.
I’ve remained silent on these issues until now, so not to give credence and visibility to these falsehoods. But now, it seems obvious to me that the issue may be regularly revived, and therefore, I want to set the record straight. The experience of being defamed in this fashion has been highly traumatic and distressing to me.
. . . .
Two years ago, a Silicon Valley gossip blog operated by Gawker Media, called Valleywag, began a smear campaign against Wikipedia and the Wikimedia Foundation which runs it. Following attacks focused on the personal life of Wikipedia founder Jimmy Wales, in May 2008 the blog ran a series of posts by Owen Thomas which defamed me by calling me a “defender of pedophilia”, deriving its claims from articles and comments I wrote in 2000 and 2001, mixed with malicious fabrications and insinuations.
The defamatory claims which originated in that blog were repeated in a small number of other blogs without deeper reflection. They were not picked up by mainstream media at the time.
The defamation campaign by Gawker was deeply hurtful to me. At the time, I also met with an attorney specializing in defamation, who assessed the claims and confirmed his opinion that they constituted legal defamation, but who also made it clear that trying to have the posts taken down would be very expensive and time-consuming. It was also obvious that any legal action would serve to amplify the visibility of the original posts, and would drive traffic to Valleywag.
I had no reason to believe that Valleywag would engage in a responsible dialogue: quite the opposite. And I didn’t want to increase its public profile. Therefore, I decided then that it was best to ignore the claims, rather than responding to them. It may not have been the right decision, but at the time I believed it was the best among many bad options available to me.
. . . .
At this point, I believe it’s preferable to have a full response to these defamatory claims on the record, rather than letting them go unchallenged. If you write about this situation, I would ask you to provide a reference to this response where relevant, and to avoid linking directly to the defamatory claims in question, both to avoid perpetuating the libel, and to avoid further driving page views to its publishers.
I have no problem being called out for things that I believe. Even attacking me based on things I wrote in my late teens or early twenties without giving me a chance to weigh in is, while not fair play, forgivable. But defaming me based on deliberate, malicious misconstruction of old writings , attributing claims to me which I have never made, describing me as a person who would defend sexual violence against children - that is completely beyond the pale, it is shocking, and it is unforgivable.
Nature of the defamatory claims
The key defamatory claims originally made by Gawker include:
1. That I am a “defender of pedophilia”:
Pedophilia is a mental disorder which causes adults to be sexually attracted to children. Pedophiles who act upon these impulses commit abhorrent acts of sexual violence against children. I have not defended pedophilia in any of my writings.
2. That I have argued that “non-violent child pornography does no harm”:
I have never made such an argument. This claim is apparently based on the malicious insertion of the word “child” into a heading from an article which stated “non-violent pornography does no harm”, based on an interpretation of a German-to-English machine translation. Child sexual abuse is an abhorrent crime, and the depiction of child sexual abuse, and the trade in such depictions, are rightly criminalized.
3. That I “oversee editorial operations” at Wikipedia, or otherwise control its content:
Wikimedia’s projects are governed by volunteer communities. Individual Wikimedia Foundation staff members, including myself, do not control or direct editorial changes. I am not sure why Valleywag made that claim, which it presumably knows to be false. I can only assume its goal was to amplify excitement and outrage about the story, by implying that I was personally influencing Wikipedia’s articles on controversial topics.
Gawker Media made several other insinuations and defamatory claims in its posts which are so over-the-top that they are barely worth rebutting; one post attributed an edit to the Wikipedia article about child sexual abuse to me which was made well before my first edit to it, based on an incorrect reading of the edit history. That post was completely false.
My writings about sexuality
My writings about sexuality focus on the core topics of pleasure/affection, pornography, censorship, and children’s sexuality. Not a single article I published either as a journalist or as a blogger focuses on the topic of pedophilia. There’s a reason for that: I have never had any interest in the topic.
Indeed, in order to support the claim that I am a “defender of pedophilia”, the anonymous defamer had to dig deep into my writings. Nine years ago, at the age of 22, I wrote an article titled “Defending the Right to Pleasure“. The article has nothing to do with pedophilia; it doesn’t mention the issue. To find a snippet worth quoting, the defamer had to dig further into the comments section of the article, where I wrote a 3,000 word response addressing various comments.
Pulling from this long, carelessly written comment, the anonymous smear letter, followed by Gawker and later Fox News, quoted three sentences out of context: “What is my position on pedophilia, then? It’s really simple. If the child doesn’t want it [sexual contact], is neutral or ambigious [sic], it’s inappropriate.” It omitted the sentence immediately following: “This excludes most adult/child sexual contact, but only little child/child contact.”
If you read the entire piece, the context of the comment and the article are clear: They argue for a less zealous approach to policing consensual sexual relationships among young people of comparable age.
. . . .
I have consistently defended the right of children of comparable age to engage in consensual, harmless sexual interactions with each other - what’s commonly called “playing doctor”, and also safe sex among teens. I have never defended the “right” of pedophiles to abuse children; child sexual abuse is a crime, and there is no such right. Children also don’t have the ability to consent to sexual activity with pedophiles, and such activities are sexual violence against children by definition.
All my writings (including the above comment in context) are consistent with this view. One particularly pertinent article that I wrote about the topic of children’s sexuality is called “Gefaehrliche Doktorspiele” (”Dangerous doctor games”), which describes the results of several weeks of journalistic research I had done into the criminalization and pathologization of consensual child sexual activity. Many of my views on the topic are also well-reflected by Judith Levine’s excellent book “Harmful to Minors: The Perils of Protecting Children from Sex”.
Sexual violence against children, like all violence against children, is abhorrent. 9 years ago, as a 22-year-old student, I wrote about these topics with an eye to issues and questions that gave me pause - the implied consensus that children are asexual creatures, that sexuality is a switch that is flipped on with adulthood, that non-violent adult pornography is harmful to minors, etc. I didn’t believe those things then, and I don’t believe them now.
The difference between then and now is that those topics are no longer the focus of anything I write about or do. If I did write about them today, I would take greater care to reassure any reader that I, too, believe that sexual violence against children is a horrific crime inflicted upon the weakest members of society. I have always believed that, and any suggestion to the contrary is false.
Make sure to read Mr. Möller's full response here.]]>
Wikipedophiliatag:www.childlaw.us,2010://7.4112010-04-20T20:48:34Z2010-04-28T19:41:03ZI've been sitting on this story for quite some time waiting for something significant to make it relevant. Now that time has come. About two years ago, rumors started floating around about Wikipedia's involvement with child pornography and the pedophile agenda. First there was a row about this image on Wikipedia depicting child nudity. Then there was the long-standing allegation...James R. Marshhttp://www.marshlaw.us
a row about this image on Wikipedia depicting child nudity.
Pedophiles have long sought to use Wikipedia to justify and promote their agenda. They organize together in order to create Wikipedia accounts and then seek to use Wikipedia's all-inclusiveness to promote their point of view. When pointed out, Wikipedians themselves often don't believe that there is an organized campaign to subvert the user-edited encyclopedia in order to promote the pedophile agenda.
Well now these allegations have risen to a new level. Last week, Wikipedia co-founder Larry Sanger reported the site's parent organization to the Federal Bureau of Investigation, saying he believes the Wikimedia Commons "may be knowingly distributing child pornography."
The clearest instances I found (I did not want to look for long) are linked from [the pedophilia page] and [the lolicon page]. I don’t know if there is any more, but I wouldn’t be surprised if there is-the content on the various Wikimedia projects, including Wikipedia and Wikimedia Commons and various others, are truly vast.
You can see on [the history of the category page] that the page has existed for three years. Considering that Eric Möller, a high-level Wikipedia manager, is well known for his views in defense of pedophilia… surely the existence of this page must have come to the attention of those with the legal responsibility for the Wikimedia projects.
Erik Möller was recently elevated to Deputy Director of the Wikimedia Foundation which controls Wikipedia. In 2000, long before his Wikipedophilia days, Möller gave a speech in Nuremberg entitled “Kinder sind Pornos” which means “children are pornography.” Even in Google’s rough translation, the gist is clear enough: Möller argues that nonviolent child pornography does no harm.
Other sites have also discussed Möller's seeming fixation on child sexuality and child pornography. According to the blog Cyde Weys:
Erik Möller has a rather . . . deep interest in child sexuality, and some “interesting” positions on it to boot.
I’m not the first to pick up on this, either. Valleywag quotes Erik as saying “What is my position on pedophilia, then? It’s really simple. If the child doesn’t want it, is neutral or ambiguous, it’s inappropriate.” Obviously, that’s leaving something important unsaid — namely, are children really mature enough to decide if they do want sex; and if they say they do, does that make it appropriate?
But there are some other things that haven’t come to light yet. I’ll just list them off and let his words speak for themselves.
Erik created the Wikipedia article on Child Sexuality in 2003, and it was definitely not a stub article (Wikipedia’s parlance for short, introductory articles intended to be expanded upon by others).
He inserted the following text into the article on Human Sexual Behavior:
"It is generally acknowledged that children are capable of feeling sexual pleasure, even if they are not yet able to engage in sexual intercourse with each other, and/or are not yet biologically able to reproduce."
In the article on Homosexuality and Morality, he writes:
“A small minority believes that children are capable of consenting to homosexual acts with older men, but all major pro-homosexual groups have rejected that view.”
And he has a rather curious definition of pedophilia:
"Again, someone who sexually abuses a minor is not necessarily a pedophile (”exclusively” ”attracted” to ”preadolescents” — emphasis on every word), but may simply be acting out of opportunity. The title “pedophiles and pederasts” is redundant — pedophilia ”includes” pederasty. This does not in any way mitigate the definitional problems of this article."
Now that judicial opinions, newspapers and scholarly reports increasingly cite to Wikipedia, it doesn't take too much imagination to believe that individuals with agendas see Wikipedia as a perfect vehicle to promote their viewpoint. Anonymous editors and anonymous contributors with anonymous oversight, little or no authoritative peer review, and almost universal knee jerk acceptance make Wikipedia a powerful and dangerous place.
As we cede more and more control of our intelligence to the Googles and Wikipedias of the world, we need to remember that sophisticated invisible forces can easily manipulate our view of reality. Just who is editing and controlling Wikipedia? There's more than just the Lower Merion School District in your child's bedroom. Wikipedophilia might be the most dangerous threat of all.]]>
School Captured 56,000 Images from Student Laptopstag:www.childlaw.us,2010://7.4102010-04-20T17:07:32Z2010-04-20T17:45:40ZFinally the truth about Lower Merion's use of remote monitoring software on student laptops: On Monday, the District's lawyer admitted that the school system captured 56,000 images of students, although thankfully "none of the images appeared to be salacious or inappropriate." Back in February, the District's website declared that they only activated the software to locate lost, stolen or missing...James R. Marshhttp://www.marshlaw.us
remote monitoring software on student laptops: On Monday, the District's lawyer admitted that the school system captured 56,000 images of students, although thankfully "none of the images appeared to be salacious or inappropriate."
Back in February, the District's website declared that they only activated the software to locate lost, stolen or missing laptops: "The district has not used the tracking feature or webcam for any other purpose or in any other manner whatsoever," the Web site said.
Conclusion: there must be an awfully lot of missing laptops in the richest school district in Pennsylvania and one of the richest school districts in the country. Actually, maybe that's how everyone is getting so rich. They're fencing school laptops! This gives the story a whole new angle.
Let's see, there are 1500 students at Lower Marion High School, divided by 56,000 "investigatory images," means that each student stole about 37 computers. With MacBook Pros running about $1100 each, I'd say that each student in the LMSD received over $40,000 by fencing school computers. Parents with multiple students in high school could be making well into six figures with this scheme, easily offsetting school taxes, payments on luxury autos and mortgages.
And remember those parents who signed a petition demanding that all lawsuits against the school district be dropped? They definitely know they've got a good thing going. Why mess it up with a lawsuit which might lead to this scam leaking out?
Let the school peek at whatever they want to. As long as we can keep moving these "lost, stolen or missing" laptops on eBay, the District will be fully justified in capturing tens of thousands of images, the parents will get rich, and all the students at LMSD will keep their fancy cars, homes and vacations.
It's a win-win situation for everyone! Why give it away for free by sexting? Make the District work to "recover their lost, stolen or missing" laptops.
(These are high rez images too! Check out this image of Harriton High student Blake Robbins which his parents say was made surreptitiously by a school-issued laptop. No chance that the District will miss one mole on the crooks' nose with pix like these!)
Any kid that has a problem with this set up will get sent to Luzerne County where corrupt judges got cash bribes for sending juvenile delinquents to a private detention facility. From Masha Allen's adoption by a pedophile, to Luzerne County's cash for kids, to LMSD's pedo laptop recovery program - there's just something about Pennsylvania folks. My advice, keep your webcam's covered and your doors locked.
Any kid that has a problem with this set up will get sent to Luzerne County where corrupt judges got cash bribes for sending juvenile delinquents to a private detention facility. From Masha Allen's adoption by a pedophile, to Luzerne County's cash for kids, to LMSD's pedo laptop recovery program - there's just something about Pennsylvania folks. My advice, keep your webcam's covered and your doors locked.