Liability for Mass Sexual Abuse

When harm is caused to victims by multiple injurers, difficult issues arise in

determining causation of, legal responsibility for, and allocation of liability for

those harms. Nowhere is this truer than in child pornography and sex trafficking

cases, in which individuals have been victimized over extended periods of

time by hundreds or even many thousands of injurers, with multiple and often

overlapping victims of each injurer. Courts (and lawyers) struggle with these

situations for a simple reason: they insist on applying tests of causation that

fail when the effect was over-determined by multiple conditions. The failure to

properly understand the causation issue has exacerbated failures to properly

understand and distinguish the injury, legal responsibility and allocation of

liability issues.

All of these issues, plus other significant issues, arose in Paroline v. United

States (2014), in which the Supreme Court considered the statutory liability of a

convicted possessor of child pornography to a victim whose images he possessed

for the pecuniary losses that she suffered due to her knowledge of the widespread

viewing of those images. In this article we critique the Justices’ opinions in

Paroline as part of a broader discussion that is intended to clarify and distinguish

the causation, injury, legal responsibility and allocation of liability issues

in general and especially in situations involving mass sexual abuse, while also

criticizing the Court’s ill-considered dicta that would make any compensatory

award in civil as well as criminal cases subject to the constitutional restrictions

on criminal punishment.