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Judge Rules Child Porn Possessor Must Pay Victim

Download an underage image and the kid can sue you

Judge Rules Child Porn Possessor Must Pay Victim

BRIDGEPORT, Conn. - In a first-of-its-kind ruling, Senior U.S. District Judge Warren W. Eginton has ordered a corporate exec to pay $200,000 in damages to a teenager pictured in a sexually explicit image found on his computer.

The child porn user is former Pfizer Pharmaceuticals executive Alan Hesketh, a British citizen who was fired from his position after his arrest in March of 2008 on child porn charges. Hesketh is currently serving 78 months in prison for possession and distribution of approximately 2,000 child porn images.

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Before Judge Eginton's ruling, courts had only awarded damages to child porn victims from the producers of the images themselves; never before has a possessor of the material been forced to compensate one of the children depicted.

The woman, now 19, was awarded $150,000 for her medical and psychological expenses and another $45,500 in legal fees and expert witness costs - and she was only one of 24 children identified in Hesketh's kiddie porn collection.

The judge's ruling appears to be based on Secs. 206 and/or 212 of the 2006 Adam Walsh Child Protection and Safety Act, which increase penalties for child porn production and recognize more rights of child porn victims.

"If you look at Adam Walsh, you'll likely see some of these financial incentives for victims of child pornography," said First Amendment attorney Lawrence W. Walters. "If they keep this limited to the child porn context, people downloading child porn, they ought to pay. It's certainly a unique way to go about the effort of stamping out child pornography, and child pornography is obviously a scourge and something the government can and should spend its resources on trying to eliminate."

However, Walters warned that zealots may try to expand the compensation ruling beyond child porn.

"What I fear sometimes is the 'mission creep factor,' where some of these remedies seem to find their way into obscenity and forms of protected speech that we've seen in a few of these bills already in Florida," he said. "I'm thinking about the 'Victims of Pornography' legislation that we've seen, where anybody who's been involved in any material of an erotic nature and who can assert damages. It's not passed yet, and it's obviously all unconstitutional because we're dealing with protected speech here, and that's probably why it hasn't passed yet, but to the extent this catches on in the realm of child pornography, somebody's going to get the bright idea, well, let's do this in connection with adult obscenity and then regular pornography."

Some courts have convicted defendants of possessing child porn because of unintentionally cached images.

"The California state courts recently rendered a decision saying that unintentional possession of a cache image file is enough to show legal possession for purposes of violating the state law, whereas the Ninth Circuit found in the federal context that possession of a cache image unknowingly is not enough," Walters said. "There's been a  couple of decisions on cache images that came out the right way; you can't have a crime like this without some kind of element of mens rea, or 'guilty knowledge'. We have to be careful who is prosecuted for this thing and under what circumstances; we're seeing some people maybe getting swept in this that end up with child porn as a result of a virus, or surfing some other sites and there's temporary images on their computers."

But Walters ultimately sees this decision as a good one.

"To the extent that this is a narrow remedy that's provided only in child porn cases, I don't have a concern with it," he said. "In fact, it's a novel way to approach the problem and it allows for the victims to get some compensation that they maybe wouldn't obtain in the criminal justice system. It takes some of the resource pressure off of the government in pursuing these traders of child pornography, and allows individuals to engage in what's called the private attorney general action, where they're basically doing a law enforcement function for their own benefit for the purpose of stamping out a crime that a government has a legitimate reason to pursue."






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Mark Kernes

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