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Death of Proximate Causation? Viewer of Child Pornography Found Liable to Victim

It's hard to have any sympathy at all for viewers of child pornography -- the author of this note finds such people despicable and deserving of criminal punishment. What about tort liability, though? Does a viewer of a film of a young girl being abused by her uncle, "cause" harm to the girl? That's what a U.S. District judge has decided. Northern District of New York Judge Gary L. Sharpe has ruled that a "consumer" of child pornography is liable for the emotional and psychological damage suffered by sex abuse victims (under 18 U.S.C. §2259(b)(1), which allows awarding compensation for the "care required to address the long term effects of their [victims'] abuse."). This even though the "consumer" viewed the film privately and without the victim's knowledge.

This rejection of traditional notions of proximate cause is being appealed to the Second Circuit. One might have thought that the uncle, who abused his niece and distributed the film of this abuse, is the legal cause of the victim's anguish. That is what the Fifth Circuit ruled in a case involving the same victim. Judge Sharpe, though, held the viewer liable to pay over $48,000 for psychological counselling under a "substantial factor" theory of causation. Under such a rationale, would readers of a defamatory publication be liable to the defamed party? Gven the capability of disseminating illegal electronic images, and given new technology that can trace when such images are downloaded, the ultimate outcome of this case will be very interesting to follow.

This case is reported here at Law.com.

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Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.