Justice Is Fleeting in the Era of Digitized Rape

The internet’s main asset, its essence and reason for being, is the ability for anyone to share pretty much anything with a theoretically infinite audience. Any image that exists in one place, that is shared through a website or through P2P networks, can gain traction, becoming sought out and viewed over and over until no one can even quantify the human impressions, much less the positive or negative impact created from and by viewing that image. The darkest, most discouraging things exist on the Internet–things like child pornography and "revenge" porn–and these things also develop a life of their own, skipping from screen to screen, from hard drive to hard drive, permanent in the sense that the possibility of the image existing always exists.

There are no longer any negatives to seize and destroy, and anyone may have seen or may possess any image. The harm done to those unwillingly depicted in pornography, specifically child pornography, is so egregious and disturbing to society’s sense of justice that we struggle to offer them something for their pain and suffering.

At first, more and more stringent sentencing laws regarding possession and production of child pornography was society’s attempt at condemning these criminals and their actions. As a culture, we’ve so stigmatized sex offenders with high mandatory minimums and lifetime registries that most are unlikely to lead normal lives. This is at once a precautionary measure, but also as an acknowledgment of the victims’ suffering. We want to punish in accordance to the harm we feel has been done.

But this does little practical good for those personally affected by child pornography. Many studies have shown the correlation between childhood sexual abuse and difficulties in adulthood, such as addiction, abusive relationships, and an increased risk of suicide. But the consequences of child pornography are more diffuse and difficult to escape. How can society, or the legal system, ever counteract the suffering of victims of child pornography, whose images, once online, are virtually impossible to completely eradicate?

Courts have a limited tool set when it comes to punishment. Some courts have been attempting to monetize those consequences, in the form of financial restitution for individuals featured in child pornography, with the money coming not solely from the producers of the images, but from anyone who is found in possession of the images. In Emily Bazelon’s The New York Times Magazine cover story, "The Price of a Stolen Childhood", she relays the stories of two young women, both subjected to childhood sexual abuse who later learned that their abuse has been photographed and shared with other men on the internet.

Due to a provision in the Crime Victims' Rights Act, victims of sex crimes have a right to know certain information regarding suspects in cases involving them. One of the women profiled in the Times's story, Nicole, began receiving scores of letters from court systems alerting her that some suspect was on trial for possession of child pornography and at least one of her photos had been found. Nicole had become a sort of celebrity (for lack of a better term) in the online child pornography world; her images were highly coveted and shared more widely than most. Because of this, she began receiving letters by the dozen alerting her to more and more individuals who had been arrested and owned pornography featuring her.

Amy, the other woman profiled, had a similar story. After being forced into pornography by her uncle as a child, as a young adult she encountered symptoms similar to those many sex abuse survivors endure: trouble focusing, trouble in college, dissociation, and depression. But unlike a child sex abuse survivor who was not forced into pornography, Amy's abuse could not be truly put behind her. There was always another man arrested for possessing images of her abuse, always more letters arriving. It was this inescapable:

Marsh [Amy's lawyer] suggested that Amy see a forensic psychologist, Joyanna Silberg, who evaluated Amy and said she would need therapy throughout her life and could expect to work sporadically because of the likelihood of periodic setbacks. Silberg attributed these costs -- Amy's damages -- to her awareness of the ongoing downloading and viewing.

Marsh estimated that the cumulative lifetime impact of her abuse would total around $3.4 million. Amy's lawyer put together a lawsuit suing for restitution, not from the producer of the pornography, but from anyone possessing the images. When a former VP at Pfizer was arrested and found to possess four images of Amy, her lawyer successfully obtained $130,000 in restitution. Though unprecedented at the time, restitution of this kind has held up in appeals court, and both Nicole and Amy have received multiple settlements from men guilty of possessing their images. It seems possible that this type of financial liability could become commonplace for anyone found with child pornography.

It more formally relates the viewership of child pornography with the crime of abuse, but it also distinguishes between different types of damages. Amy's lawsuit wasn't based on damages from her abuse per se. She was entitled to restitution because her awareness of the ongoing viewing and the permanence of those images online diminished her mental health and quality of life. This is philosophically distinct from the idea that owners of child pornography are complicit in its creation because they create a demand. It is a way to describe a new phenomenon, one where the medium itself is injurious.

Another troubling occurrence sensationalized by Hunter Moore, his Village Voice cover story, and his seedy internet empire, the now defunct IsAnybodyUp, is the phenomenon of revenge pornography. IsAnybodyUp and the sites that mimic it provide a platform for asshole exes to post sexual photographs, along with names, addresses, social media profiles, etc., in order to shame their ex-partners online. Though the underlying injury differs significantly, these women (and a few men) weren’t sexually abused to obtain the pictures, and in fact the most common photos on these sites are self-portraits, the images were not usually created for public consumption. Seeking financial restitution for the damages incurred from this type of online pornography is also a new kind of legal battle. Just last week a class-action lawsuit was filed against Texxxan.com, a revenge porn site, and GoDaddy for hosting the site.

Given the current liability laws going after these entities is at best a stretch. GoDaddy is almost certainly protected under Section 230 of the Communications Decency Act of 1996. But it seems the case is at least symbolic, and perhaps the beginning of a new wave of legislation on internet publishing and established liability, paving the way for future restitution. Again in this case, the power of the internet to immortalize pornographic images harms the women and men who have been exposed without their consent, and we feel a moral opposition to the people who’ve posted them and the revenge porn enterprise in general, but what is that worth? The women in this lawsuit have not been abused, but they have not consented to appearing in pornography open for public consumption either. Again, it is the permanence of the images that is inherent in our understanding of the damage that has been done to them.

Our sense of fairness leads us to codify ways to punish the guilty and assist the victimized. America is nothing if not a litigious society obsessed with the righteousness of squarely placed blame. But the internet and the ways we communicate resist more simple formulas; the damages of any image ripple outwards, secretly multiplied in ways we can’t yet quantify. These innocent women – most especially those who were abused as children – certainly deserve something to compensate them for their horror; we’re just trying to figure out what it is and from whom.

@kellybourdet