Federal Child Image Exploitation Law Enhanced- Congress Amends Masha’s Law

Federal law gives victims of “child pornography” the right to sue anyone who produces, distributes, or possesses their child sex abuse images. [Cite: 18 U.S.C. § 2255] Known as “Masha’s Law,” a 2005 federal law is named for Masha Allen, a five-year-old orphan girl who was adopted internationally by an American man who sexually abused her for six years and produced over 200 sexually explicit images. (James R. Marsh, Masha’s Law: A Federal Civil Remedy for Child Pornography Victims, 61 Syracuse L. Rev. 459, 460 (2011).)

First, a word about labels. Online child abuse material or child exploitation material is child sexual abuse. To call it “pornography” perpetuates the belief that those committing the offense were “only looking.” Not only does this minimize the seriousness of these crimes but creates a false distinction between viewing images and the sexual abuse of a child.

This past month, Congress amended Masha’s Law to extend the statute of limitations on filing, clarify the language concerning damages available, allow for punitive damages, extend appropriate venue, and allow service of process of the defendant to take place anywhere in the United States. ADZ Law applauds these changes, as they make a victim’s obstacles to obtaining relief in court less burdensome.

Masha’s Law is meant to address the fact that circulation of child sexual abuse revictimizes the victim, causing further injury. Studies have shown that victims feel more empowered “by choosing when, how, and to whom to disclose their abuse.” (Id., at 463.) Masha’s Law permits victims to take a proactive stance toward harms that were committed against them.

To prevail, the victim must establish that the defendant committed a federal “child pornography” or child exploitation crime; and that the victim suffered personal injury as a result. [Cite: 18 U.S.C. § 2255.] 14 federal crimes support this cause of action. The defendant need not have an actual conviction, but if there is no conviction, the victim/plaintiff must prove by a preponderance of the evidence that the defendant committed the crime. [Smith v. Husband, 376 F.Supp. 2d 603, 613 (E.D. Va. 2005).]

The recent changes extend the statute of limitations on filing in two ways. For the first time the statute of limitations may extend to 10 years after the victim turns age 18 (or until the victim turns 28.) Previously, the statute of limitations was generally construed to extend only 3 years after the victim reached the age of majority, or age 21. Second, as an alternative to the former limitation, the new version of the statute permits that plaintiffs have 10 years after they reasonably discover the “violation” or “injury” that forms the basis for the claim. In some circumstances this could extend well beyond the victim’s 28th birthday.

As to damages, the statute now explicitly provides for $150,000 liquidated damages, as an alternative to “actual damages,” and the victim can elect which type of damages should be awarded. In other words, so long as the tort is proven, $150,000 in damages may be ordered, even if the extent of the actual injury proven amounts to less than that amount. The statute also provides for punitive damages for the first time and adds compensation for “other litigation costs reasonably incurred.”