MUBIN SHAH (Associate Editor)

In 2003, the National Society for the Prevention of Cruelty to Children, a UK-based charitable organisation, revealed that more than 20,000 images of child pornography were posted online each week. Meanwhile, the US Customs Service estimates that there are 100,000 websites offering illegal child pornography, underpinning a US$ 3 billion dollar industry.

Child pornography is a grave international problem and most countries have enacted legislation to tackle this issue head-on. In Singapore, the Children and Young Persons Act (Cap. 38, 2001 Rev. Ed. Sing.), Undesirable Publications Act (Cap. 338, 1998 Rev. Ed. Sing.) and Films Act (Cap. 107, 1998 Rev. Ed. Sing.) regulate offences related to child pornography. However, these laws only go so far as to punish offenders who make, publish, distribute or possess child pornography. Victims who seek monetary compensation for the pain and anguish suffered may commence civil proceedings, but are restricted to seeking compensation from those directly involved in the production of the pornographic material.

One lawyer in America is spearheading a revolutionary campaign against child pornography.

James R. Marsh is representing a victim of child pornography, Amy (the alias she is known by), and demanding restitution from offenders caught with possession of child pornography depicting Amy. To date, close to 800 offenders have been prosecuted for possession of child pornography depicting Amy. Mr. Marsh is arguing that each offender should be liable to pay the full amount of damages Amy is seeking (US $3,367,854) under the doctrine of joint and several liability. Mr. Marsh’s pursuit for restitution has been met with both support and opposition but the fact remains that he has had some measure of success; the District Court of Connecticut recently awarded Amy a sum of US $130,000 against a pharmaceutical executive arrested for possession of approximately 2,000 images of child pornography.

An interesting legal issue arises here: Should the doctrine of restitution be applied in criminal law? Restitution here is to be distinguished from mere compensation. A victim awarded compensation would be able to claim money for medical expenses, while a victim awarded restitution would be able to claim additional expenses such as having to move to a different town to escape the trauma. Traditionally, restitution is utilised in civil actions, as an instrument against tort wrongs, breach of contract or unjust enrichment. There are cogent arguments to restrict restitution to the realms of civil law. For example, allowing criminal restitution would inevitably lead to a torrent of demands. In the specific case of possession of child pornography, demanding restitution from offenders who possess child pornography could lead to the possibility of liability without limitation.

In criminal proceedings in Singapore, the defendant makes restitution voluntarily. The role that restitution plays in the criminal process differs significantly from its application in civil actions. Restitution is viewed as a personal mitigating factor here; the defendant makes restitution to provide evidence of remorse, genuine good character and reformation.

Notwithstanding, there are existing provisions in Singapore that seem to endorse restitution to victims of crimes. Section 401 of the Criminal Procedure Code (Cap. 68, 1985 Rev. Ed. Sing.) [CPC] empowers courts to order payment of costs of prosecution and compensation. Specifically, s. 401(1)(b), CPC, provides for “an order for the payment… by way of compensation to any person or to the representatives of any person injured in respect of his person, character or property by the crime or offence for which the sentence is passed.” Alongside s. 401, s. 10(2) of the Probation of Offenders Act (Cap. 252, 1985 Rev. Ed. Sing.) also empowers courts, on making a probation order or conditional discharge, to order the probationers to pay compensation to their victims.

Despite the presence of such laws, it is uncommon to find our courts ordering restitution in criminal proceedings. Professor Stanley Yeo examined this conundrum in his article, “Compensating Victims of Crime in Singapore”. He explained that a number of factors were responsible for the poor utilisation of the above provisions, such as the lack of guidelines for computing the sum of compensation paid to the victim, no recommendations of compensation by the Public Prosecutor, or the presence of civil remedy for the victim.

These are the same considerations fuelling the ongoing debate in the United States, but where Professor Stanley suggests a State-funded victim compensation fund as one possible solution, Mr Marsh is campaigning for the normalisation of restitution in criminal proceedings. The District Courts in the US are divided when it comes to ordering restitution. Several courts have awarded Amy a few hundred dollars in compensation, while others have awarded her the full amount of damages she sought. Conversely, several courts have refused to even acknowledge the causal link between a person who simply possesses child pornography and the harm it causes to the victim, thus refusing to award restitution.

Despite the lack of consensus, the wheels of restitutive compensation have been set in motion. Following Amy’s success in Connecticut, a federal judge in the District Court of St. Paul has issued an order for a memorandum from State Prosecutors to explain why they failed to seek restitution against a man charged with possession of child pornography. It remains to be seen whether restitution will become the norm or the exception (in Amy’s case) in the US but its application in criminal law is an exciting prospect in the development of law and Amy’s success (or failure) will be closely monitored internationally.