Does Viewing Evidence of a Crime Injure the Victim?

February 24, 2009

Always on the lookout for questionable claims, regardless of the source, I found an interesting BBC story about a British man who was found with child porn, including one or more sexually explicit photographs of an underage girl. Apparently he did not take the photos, and he has been instructed to pay restitution to one of the victims. So far so good, but the reason for the restitution seems odd. The piece states, in part (http://news.bbc.co.uk/2/hi/americas/7907053.stm).

A British man living in the US has been told by a judge to pay $200,000 to a woman for possessing an indecent image of her as a child. The judge said it was the first such criminal case in which someone found possessing illegal images had to pay restitution, despite not creating them. Images of the victim as a child were found amid the collection. He was sentence to 78 months in prison….

  Ernie Allen, president of the National Center for Missing and Exploited Children, said he hoped the decision would serve to act as a deterrent. "We think this is a terrific precedent," Mr Allen said. "The photos stay out there forever. Every time they are downloaded, every time they are distributed, the victim in that image is re-victimized."  

I understand Mr. Allen’s outrage at this poor woman’s ordeal, though I’m not sure I understand his logic. Regardless of how you feel about this case or about victim restitution in general, do you think that what Mr. Allen said is true? Is it accurate to say that every time a photograph of the victim is downloaded or viewed, the subject of that photograph is victimized again? Does that mean that any time someone views an image of someone injuring someone else, the injured person is harmed anew? Can the mere act of viewing an image harm the person in that image?

Does that mean that news stations should not air videotape or photographs of crimes because doing so will harm the victims of those crimes? Was Rodney King re-victimized each of the thousands of times the videotape of his beating by Los Angeles police officers was broadcast on the air? If you go to YouTube right now and watch a video of his abuse, are you somehow injuring or re-victimizing Mr. King by simply viewing his assault? Is it possible to be victimized by something you have no knowledge of?

Does Allen’s comment trivialize the injury and pain of victims by suggesting that there is little or no difference between a person actually being assaulted and an anonymous person seeing a depiction of that assault?

What do you think?

 

Comments:

#1 Damon (Guest) on Tuesday February 24, 2009 at 10:53pm

The comments were made about the viewing of child pornography—in child pornography cases, the act of viewing is the assault which is sought to be deterred or punished by criminalizing distribution and possession of such pictures. Multiple people can be arrested for possessing the same child porn at different times, so the “re-victimization” idea is perfectly fine, I think. Any re-showing of the pictures would be a new crime, and logically, in not actually, every crime should have a victim. The airing of footage of a physical battery, however, would not be a re-battering of the original victim. It might be an infliction of emotional distress on the viewer (who may be the original victim), but that’s another story.

#2 Ben Radford on Wednesday February 25, 2009 at 11:30am

Damon: I think we’re talking about two different things. I agree that the purpose of the fine is as a deterrent, but the question I was focusing on is the logical basis for Allen’s claim that “every time [the photos] are distributed, the victim in that image is re-victimized.”

I agree with you that “the airing of footage of a physical battery would not be a re-battering of the original victim,” so why would the viewing/downloading of a photograph of another type of abuse (or, at the least, exploitation—the story is not clear) be a re-victimization?

#3 darlene (Guest) on Wednesday February 25, 2009 at 2:08pm

“Is it accurate to say that every time a photograph of the victim is downloaded or viewed, the subject of that photograph is victimized again?”

I have to say yes…and here is why:

Child pornography has two elements, the initial crime of taking the images, and the second crime of buying/downloading/owning the image.

It does not follow that every victim of every crime is victimized by showing images, because the image is not usually the actual crime. In the King example used, the images taken were not part of the crime itself, although it was used as evidence that a crime took place. In child pornography, however, the crime IS THE IMAGE. There may be additional crimes, such as molestation or rape or abuse, but the actual image is also the crime.

And those who buy or otherwise obtain those images are participants in that crime. So every time that image is downloaded, a crime is being committed. And the crime is being committed against the child that was abused by having their picture taken in the first place.

I also had to think about this, and I realized that the reason owning or viewing child pornography is illegal is because there is a sense that it is an abuse of the child—otherwise it might be illegal to take the picture, but not illegal to own it.

In order for it to be illegal to own, the child must be victimized by the fact of the image existing. And if the victim is the child, when does the child stop being a victim? After the first download? The 100th? the 1000th?

So it must follow that, for child pornography to be illegal to even own, then the child must be victimized every time an image is viewed or downloaded.

#4 nmtucson (Guest) on Wednesday February 25, 2009 at 2:39pm

I consider this a fairly complex issue. On one level, we recognize the responsibility of the individual to measure and manage their own reactions. So no, just because someone views an image of victimization, that does not automatically re-victimize the subject of the image. On another level, we recognize that humans are fallible and flawed, and we don’t always do a great job of managing our reactions. Rodney King in some ways did suffer revictimization with repeated showings of that film. I would bet he re-experienced the horror of it. I also suspect he personally felt the growing trivialization of his experience as the public perception of the event transformed from a news item about a person to a funny video about a depersonalized event.

For the subject of child pornography, the problem becomes even more complex. At least Rodney King understood some of the dynamic of the brutal attack on him. A child has no source of information about their treatment other than those who oversee them. When those people brutalize and mistreat them, they have no larger context in which to frame it. It just hurts, and doubly so when someone who they think loves them also hurts them. As the adult plaintiff in this case clearly showed, this kind of hurt can last a lifetime, and the victim often will not get to a point where they can deal with the hurt maturely. Knowing that someone else can view such an image of oneself might very well overset the most emotionally competent person, in my view. What it does to an adult damaged since childhood becomes a matter for all of us to consider. As a result, a ruling that might seem extreme on its face can be seen as reasonable in the defense of the emotionally defenseless, a kind, responsible and necessary act.

#5 Ben Radford on Wednesday February 25, 2009 at 3:41pm

Darlene—excellent comments and analysis. You are right, there is a difference between this case and Rodney King’s video beating, in that in this case, the image is not only evidence of a crime, but viewing it is a crime in and of itself.

I agree that viewing the image is a crime, but I’m not certain how the victim is “re-victimized” by that viewing. I’m not sure that the photo’s legality is necessarily linked to the victim’s re-injury. There are things that are illegal but don’t necessarily injure anyone (for example, arguably prostitution between consenting adults), and there are things that injure someone but are not necessarily illegal (for example, vicious gossip about a neighbor).

I guess it depends on the nature of “re-victimization.” Does it imply actual physical, emotional, or other harm to the depicted victim? Or is it a metaphorical harm?

#6 Ben Radford on Wednesday February 25, 2009 at 3:51pm

nmtucson: Interesting points. When you say, “Rodney King in some ways did suffer revictimization with repeated showings of that film. I would bet he re-experienced the horror of it,” it seems to suggest that it is King’s *knowledge* of the video being seen by others that re-victimizes him. That is, it is not the mere act of some stranger seeing the video clip of his beating that harms him, it is his knowledge that someone is seeing it.

If that is true, then the criterion for harm becomes the victim’s knowledge. Does that mean that if King didn’t know others saw the video, he would not be victimized again? Logically, that suggests that if the police (or whoever) told the victim in this case that all the images of her had been located and destroyed (whether that was true or not, as long as she *believed* it), she would not be re-victimized. Is that right?

#7 Damon (Guest) on Wednesday February 25, 2009 at 4:06pm

Ben—You asked for a possible logical basis for this special treatment of child porn: I would say that if we didn’t punish each viewing or act of possession in child porn cases, then only the person who took the original pictures or video could be prosecuted. And for most people that just doesn’t seem right, so we go after every individual viewer as a criminal. A crime requires a victim, therefore, every viewing is a victimization.

So it does seem like a bit of legal fiction, but this is a fiction that addresses a real moral revulsion at the idea that someone possessing child porn could go unpunished. I understand your hesitation, but the logic is very clear to me: if we don’t so this, then we are accepting that at some point a person no longer has a right to complain about someone enjoying the fruits of that person’s earlier exploitation. Couching it in terms of “re-victimization” may seem odd, but it isn’t illogical.

There is the possibility that, because of the attenuated nature if the alleged crime (repeat viewings of exploitative pictures), such a victim might not actually “feel” victimized upon each viewing (which I’m guessing is part of your hesitation with the idea), but we do not require that in criminal law, we’re only interested in the action and mental state of the criminal. I do not know what was required for restitution in this case, though. That nature and severity of the punishment was the unusual part of this case, not the fact that he was punished.

So I do not think Mr. Allen is trivializing anything, nor is he engaging in irrational metaphysics to arrive at his statement. There is a logical and defensible reason to arrive at his position. It does involve accepting at least one statement of abstract (?) moral value, but doesn’t all law?

#8 darlene (Guest) on Wednesday February 25, 2009 at 4:25pm

Ben, you said: “I agree that viewing the image is a crime, but I’m not certain how the victim is “re-victimized” by that viewing…
I guess it depends on the nature of “re-victimization.” Does it imply
actual physical, emotional, or other harm to the depicted victim? Or is it a metaphorical harm?”

I would argue that if the victim is hurt buy one viewing, then it follows that the victim is hurt by every viewing.

I think the real question is: just how is the victim injured in child pornography, anyway?

I think we all agree that there is an injury while the image is being taken, so let’s put that aside.

So, why is looking at a picture wrong? Is it just the “ick” factor? Do we make it wrong only as a deterrent to those who would take the picture in the first place?

One could compare it to theft, where owning something you know was stolen implicates you in the original crime. So even if it’s five degrees removed, the harm is still to the original owner. And something is certainly being taken from the child.

But I think it needs a special category. The harm to the child is in two parts: the original abuse during which the image is captured, and then the knowledge the victim lives with that someone else will be witnessing their abuse. No, not witnessing the abuse, savoring their abuse. So any viewing of that image is a continuation of the abuse, because it keeps the image alive in a way that perpetuates the image of a nonconsensual child as a sexual object.

Realistically, every time an individual’s image is found by the authorities, it reopens the ordeal for the abused child, even if they are now adults. And just knowing that people are out there enjoying photos of their abuse…yes, I think that constitutes emotional harm.

#9 Ben Radford on Wednesday February 25, 2009 at 4:27pm

Damon-  Point taken, but I’m not sure about this statement: “if we don’t do this, then we are accepting that at some point a person no longer has a right to complain about someone enjoying the fruits of that person’s earlier exploitation.”

As the story notes, this is the first time restitution in a case such as this has been ordered. Surely prior to last week (or whenever the ruling came down) the court system was not accepting that the victim has no right to complain about earlier exploitation… Everyone knows that such exploitation is wrong and illegal, so I’m not sure that without this restitution, people would suggest that the victim’s rights were not violated.

I don’t disagree with the criminal’s punishment, nor the victim getting restitution (though why only her, not the dozens or hundreds of others?). To me those are separate issues.

I’m just not clear why Mr. Allen of the NCMEC believes that the victim is “re-victimized” when someone downloads or looks at an image of the victim.

#10 Ben Radford on Wednesday February 25, 2009 at 4:41pm

Darlene- you wrote, “any viewing of that image is a continuation of the abuse, because it keeps the image alive in a way that perpetuates the image of a nonconsensual child as a sexual object.”

Okay, I see where you’re going with this, and I think there’s some truth there. But is the “continuation of abuse” for the victim as a person, or a generalized abuse (all abused kids everywhere?). The interpretation of the child as a sex object is of course abhorrent, but it occurs in the viewer’s mind—not in public. How would the child know when or if anyone was looking at or downloading the image?

“every time an individual’s image is found by the authorities, it reopens the ordeal for the abused child, even if they are now adults.”

So it’s the knowledge of other people seeing the image that harms the victim? What if the police or authorities don’t tell the victim? (And, really, why would they, as it would cause emotional pain?)

Viewing a person in a photo is of course not the same as the person in the photo knowing that they are being viewed. If the harm comes not from the viewing, but the *knowledge* of that viewing, then that’s a much trickier issue. Then it is not the actual downloading or viewing of the image that re-victimizes…


And just knowing that people are out there enjoying photos of their abuse…yes, I think that constitutes emotional harm.

#11 nmtucson (Guest) on Wednesday February 25, 2009 at 5:15pm

However, from a strictly practical point of view, each viewing also keeps the market alive for the image in question, and someone usually profits from each viewing. If the subject is the victim of the original making of the image, then they are also the victim of the re-selling of the image. Yes, the original subject of the image is not “actually” or “physically” harmed, but continued viewing of that image sustains the *climate* in which the original abuse occurred, making the next abuse more likely.

#12 Damon (Guest) on Wednesday February 25, 2009 at 6:22pm

Ben: My statement “if we don’t do this, then we are accepting that at some point a person no longer has a right to complain about someone enjoying the fruits of that person’s earlier exploitation,” is the logical corollary of the argument I laid out—I think. In technical terms, when someone can no longer be punished for something, they no longer have a legal duty to refrain from that act (looking at a particular photo) and then, necessarily, no one else has a legal claim (a right) against that person. So I was thinking in legal terms that just happened to look like normal English. sorry. 

As for the punishment, that’s just a different issue. You can use the “re-victimization” idea to get the guy convicted (and he was, I believe); the restitution has a whole other set of baggage along with it that isn’t (I think) of particular concern to us skeptics/atheists.

But I think you’re right in #10-it’s the knowledge of the act, not the act itself. whether Mr. Allen was speaking casually, or subscribes to some mystical notions of causality, we’ll have to ask him, but there is a relatively mundane legal argument for the result.

#13 Ben Radford on Wednesday February 25, 2009 at 7:44pm

Damon- ah, it was that sneaky legalese that did me in! Allen’s comment reminded me, very roughly, of the idea that some cultures had that there was some mystical power in a photograph, as though a person’s spirit or soul could be captured in the photo.

#14 Damon (Guest) on Thursday February 26, 2009 at 9:19am

Ben—Yeah, the law is good for warping one’s sense of reality.

#15 Mini-New Mexico personal injury lawyer (Guest) on Thursday March 19, 2009 at 2:29am

Thanks for the post, really very informative post for all the readers.

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