The Peril of Paroline: How the Supreme Court Made It More Difficult for Victims of Child Pornography

"[E]xtremism in the defense of liberty is no vice. And . . . moderation in the pursuit of justice is no virtue."-Barry Goldwater1I. INTRODUCTIONIn 1996, Congress passed the Mandatory Restitution Provision as a way to help those who have suffered enormous losses as child pornography victims.2 "Andy"3 is one of those victims. FBI Special Agent Jeff Ross had received a file on a young boy who was being repeatedly sexually abused by an adult male. The National Center for Missing and Exploited Children (NCMEC) sent him the file after determining that the abuse occurred in Utah from hearing a radio ad for a Utah car dealer and "see[ing] a Salt Lake City telephone directory in the background" of a video.4 Agent Ross had a break in the case and was able to learn the name of the victim, the city where he lived, and the name of the abuser-Antonio Cardenas.5For three of the five years Cardenas volunteered as a "big brother" to Andy, he had sexually abused Andy and documented the abuse with video and photos. The first video of him showed acts of sexual abuse on a blanket decorated with the Nickelodeon cartoon, SpongeBob Squarepants. The series of videos became known as the "SpongeBob" series in the underground child-porn community and is among the most widely distributed child pornography on the Internet.6 Cardenas repeatedly raped the child, acts that he deemed as "consensual sex" performed in the name of love. Cardenas believes that there is nothing criminal or inherently wrong with having sex with children. He thinks that laws should be changed to decriminalize this behavior.7At one point, Cardenas lost his job and decided to move back with his parents in Mexico. He wanted to profit as the "creator of SpongeBob" from his videos and contacted private child-porn traders "to get everything from anybody with nothing but my name."8 He knew he "had a very unique, special, tradable, beautiful kid series with which to climb up the pornography ladder," and would be able to "get access to things [he] always wanted to see but could never get hold of."9 In a short time span, he "felt like [he] was god, [he] was at the top of the game."10Antonio Cardenas was arrested January 10, 2010, and the story of Andy's abuse came to light.11 At Cardenas's sentencing, Andy's mother brought in two large boxes containing hundreds of brown envelopes, each a victim-notification statement regarding a case where a defendant was charged with possessing "SpongeBob" images. His mother poignantly observed, "Every one of those envelopes represents perverts looking at pictures of my son."12 At the time of sentencing, there were at least 500 defendants.13 Today, that number is rapidly approaching 1,000.14Andy's losses encompass psychological counseling and future lost income. Andy also seeks restitution for expenses for a forensic psychological exam and follow-up report and an econometric calculation of his actual losses as a necessary precursor to his restitution requests, as well as legal fees.15 Andy's case is precisely the situation Congress had in mind when it passed 18 U.S.C. § 2259, the Mandatory Restitution Provision, which applies to child pornography victims.In a report to Congress, the U.S. Department of Justice defined child pornography as "the possession, trade, advertising, and production of images that depict the sexual abuse of children."16 It is worth noting that the term child pornography has fallen out of favor among experts in the field because the "use of that term contributes to a fundamental misunderstanding of the crime-one that focuses on the possession or trading of a picture and leaves the impression that what is depicted in the photograph is pornography. Child pornography is unrelated to adult pornography; it clearly involves the criminal depiction and memorializing of the sexual assault of children and the criminal sharing, collecting, and marketing of the images."17There is a rising preference for calling these photographs indecent images of children, child exploitation materials, and child abuse images, which "is thought to more adequately capture the content of these images and the ways that they are used, and move us away from uncritical comparisons with adult pornography. …