Groundbreaking civil suit for child pornography victims moves forward

November 1, 2013

On November 1, 2013 the federal court in Seattle Washington entered an order granting prejudgment attachment of the real property of a convicted child pornography consumer in favor of two victims.  In May 2013 Carol Hepburn and the Savage Law Firm filed the unusual civil action under 18 USC §2255 on behalf of their client “Vicky” requesting damages for the injuries and anguish she suffers as a result of his crime.

As a part of prosecuting this case, “Vicky” moved the court for an order securing the property of the defendant, Joshua Osmun Kennedy, in the event of the judgment she expects to obtain in this case.  ”Vicky’s” claim against Kennedy was consolidated with that of “Amy” another victim of his crime.  ”Amy” had also moved the court for the protection of a pre-judgment attachment.

In granting the victims’ requests Judge Richard Jones noted the unique nature of the statute under which the cases were filed.  This statute, also known as Masha’s Law, provides for minimum damages for victims of $150,000.  The reason for this “floor” of damages is

. . . to allow victims of child pornography to recover without having to endure potentially damaging damages hearings. Were it otherwise, a fresh damages hearing might inflict fresh wounds, increasing the child’s suffering and increasing compensatory damages to which she is entitled.

Quoting from Doe v. Boland, 698 F. 3d 877, 882 (6th Cir. 2012) cert denied, 133 S. Ct. 2825 (2013).  Judge Jones cited the legally protected interests which both Vicky and Amy have in their reputations.  ”They were real victims of child sex abuse and child pornography.” Based on their statements, Kennedy’s admissions in the criminal proceeding, and his concession regarding the generalized harm caused by his actions, it appeared to the court that Kennedy invaded the victim’s interests and harmed the victims’ emotional well-being and reputation. Order at page 6.

Kennedy had resisted the victims requests for security arguing that the $150,000 minimum damage provision is unconstitutional.  He argued that the floor on damages was grossly excessive and arbitrary and deprived him of a jury trial on the issue violating the Fourteenth and Seventh Amendments respectively.  The court rejected these arguments noting that the statute deems these damages “actual” and not punitive, as Kennedy had argued.

The court also rejected Kennedy’s request for a $300,000 bond, imposing instead the statutory minimum bond of $3,000.  The large bond that Kennedy requested would be

“so cost-prohibitive that it would result in the inability of virtually any victim of child pornography to attach any property of a defendant.  Such a result would fly in the face of the very statutes that provide a civil remedy for these vulnerable victims if defendants have the ability to creatively move assets to become judgment-proof.”

Order at page 10.

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