Wednesday, January 22, 2014
Today I had the singular experience of attending oral argument at the Supreme Court. The case was Paroline v. United States. For those unfamiliar with this matter, Paroline addresses the ability of a child pornography victim ("Amy") to obtain restitution from a child pornography possessor consistent with 18 U.S.C. 2259. As was demonstrated by the oral argument, the case has both complex legal issues (outlined here in a brief article co-authored by myself and the trial attorney for Amy, James Marsh) as well as important emotional and justice issues. Although the case poses many important legal questions worthy of discussion, for purposes of MOJ, I will focus on some reflections most relevant to Catholic legal thinking.
When one's legal scholarship focuses on the exploitation of vulnerable people, particularly women and children, the days when one feels positive about the direction of law and policy are, frankly, few and far between. Our new MOJ contributor, Cecelia Klingele recently discussed her observation that those convicted of crime are among those "unseen" in our society. I would add to that list of unseen – and often unheard in courts of law- crime victims. As I point out to my students, the word "victim" does not appear in the Constitution; she is afforded no real procedural protections; no one speaks exclusively for her; and often she is involved in the litigation through no action of her own, at times being further victimized by the process. Indeed Paroline demonstrates this quite poignantly as it is a case wherein the United States – the entity which prosecuted defendant Paroline - has taken a position at odds with (although not completely opposed to) Amy's effort to receive restitution.
However, I felt today represented a good day for victims – a day in which Pope Francis' call for us to "care for the vulnerable of the earth" was heard a little more clearly (Evangelii Gaudium, para. 209). This is not so much because of any expected outcome of the case. Indeed, I do not know where the Justices will come out on the very difficult questions at issue. Rather, two aspects of the day offer some hope that we are closer to the Pope's vision of "restoring the dignity of human life" to all people. (Evangelii Gaudium, para. 75)
The first sign of encouragement was the procedural handling of the case. This case began with one civil attorney answering the call to assist "Amy." Amy is a victim of horrible abuse whose assaults have been circulated extensively in child pornography networks. One attorney, James Marsh, took up her cause several years ago and has worked tirelessly to assist Amy in moving forward with her life. He, Paul Cassell (who argued the case before the Court), Carol Hepburn (who has represented several other victims) are examples for us all on how we as attorneys can utilize our skills to truly help the most vulnerable among us.
Secondly, I saw some hope from the other side of the bench. I previously attended the argument for another child pornography case, United States v. Williams. During that argument I was rather dismayed by some of the questions from the Justices that seemed to indicate that they, like many in the legal community and media, did not understand the victimization associated with being a victim of child pornography. This victimization is unique in that, unlike many other crimes, child pornography is a "crime of perpetuity." That is to say that a victim of child pornography never ceases being victimized. As long as the images exist, she lives with the knowledge that others are observing her assault for their own pleasure and entertainment. She must wonder whether every person she meets, every job interviewer, every neighbor, every teacher has viewed her image. It is a crime like no other. For the Williams case, the Justices did not seem to fully understand that concept. Today, all the Justices' questions reflected a clearer understanding of that reality. I was glad to see that the harm suffered by these men and women is being understood at a greater level.
While this may seem a minor point, as pornography becomes more mainstream in our society, and judges increasingly are affording child pornography offenders lesser sentences, one can begin to question if we will ever reverse the trend of turning our children into commodities. Today reminded me that there is hope, however incremental, that we are moving closer to valuing "the life and dignity of all human persons."