By Michael Webert*
In the wake of recent decisions by the Court of Appeals for the Armed Forces (CAAF), the military justice system’s highest appellate court, victims of child pornography offenses now receive substantially different rights and treatment in military courts than in federal civilian courts. Two key issues in child pornography cases are now handled much differently, depending on the forum: notification and participation. In the civilian system, child pornography victims may elect not to receive individualized notifications every time another offender is charged with viewing illicit content depicting the victim, avoiding a potentially traumatic stream of reminders that they are still being exploited. Military law now requires just that. Moreover, a victim in the civilian system may elect to be heard by writing a statement describing the impact of the child pornography offense on them, which can then be submitted during sentencing of offenders who viewed their images, but without requiring them to learn of and specifically address every single offender who views the depictions in question. The military justice system now requires them to do exactly that if they wish to be heard. Because the CAAF ruled that this system is required by statute, Congress must act to relieve this burden on the victims of child pornography and bring the military justice system into alignment with its civilian counterpart.
I. The Need for Victim Impact Allocution, Elective Victim Notification, and Nonspecific Allocution
A. General Principles
A wide variety of arguments have been put forward to support the practice of victim allocution. In enacting the Crime Victims’ Rights Act (CVRA) and Article 6b of the Uniform Code of Military Justice (UCMJ), Congress concluded that at least some, if not most or all, of these arguments justified a statutory right of victim participation.
Some argue that a right to victim allocution elevates the role of the victim in the criminal justice to its appropriate standing. The right makes victims “full participants in the criminal justice system,” an end that multiple courts have cited as an underlying goal of the CVRA’s drafters. Doing otherwise, and omitting the victim’s narrative from the courtroom is, in one scholar’s view, “to undermine public perceptions of the justice system’s legitimacy.” Moreover, such allocution provides useful information to sentencing authorities that might not otherwise be available. It also contributes to the “moral education” component of the criminal justice system by impressing the gravity of the crime on the offender and the community.
Additionally, allocution allows victims the opportunity to recover from the impact of the offense. The allocution can restore the dignity of the victim, making them an empowered participant in the process rather than a helpless bystander. Indeed, one scholar’s review of the research concluded that delivering statements provides victims empirically-demonstrated “therapeutic benefits.” Exclusion from the process, by contrast, risks “secondary harm” from the offense by making victims feel as though “society doesn’t value them enough to take their views and concerns into account.”
B. Considerations Unique to Child Pornography Cases
A victim of child pornography—just as a victim of any other offense—has a statutory right to be reasonably heard, and, if so heard, stands to be a full participant in criminal justice proceedings, provide useful information to the sentencer, educate both the offender and the community, benefit from the restorative and therapeutic effects of allocution, and avoid the secondary harm of exclusion and devaluation.
These victims, however, also face unique challenges that are not fully contemplated by procedures conceived around the more prototypical victimhood from a one-off incident between a single offender or group of offenders and a single victim or group of victims. Victims of child pornography are “polyvictims”; in addition to the original abuse depicted in the pornographic images, they are repeatedly victimized by the recurring viewing and distribution of the images by subsequent offenders, as well as the knowledge that the images exist permanently and are in circulation. This aspect of victimization in child pornography cases has been recognized by both Congress and the Supreme Court.
The general approach to victim notification, however, can be devastating for victims of child pornography. Rather than healing, repeatedly reminding victims of the ongoing exploitation of their images can potentially traumatize them further. One such victim has described finding at least one notification letter on most of her trips to the mailbox, resulting in a home filled with “boxes full of victim notifications.” These are “constant reminders of the horrors of [her] childhood.”
II. The Divergence Between Military and Civilian Treatment of Child Pornography Victims
The nature of child pornography crimes thus places victims on the horns of a dilemma: to exercise their allocution rights in the same manner as other victims and receive the corresponding benefits, they must also accept the destabilizing impact of receiving personal notice of every offender who revictimizes them. Of course, even assuming a victim enthusiastically desired to exercise their rights, it may be logistically impossible to do so—the images of a single victim could potentially lead to “hundreds or thousands of sentencings each year.”
To resolve these problems of notification and participation, the Justice Department has created policies to allow victims to elect not to receive individualized notifications, but nonetheless draft a written statement to be submitted by the Government to a sentencing court when an individual is convicted of an offense involving that victim’s images. The FBI’s Child Pornography Victim Assistance (CPVA) program and the DOJ Victim Notification System allow victims to opt in or out of notifications at any time. CPVA also permits victims “a choice to provide a Victim Impact Statement (VIS) that may be used in federal, state, and/or local sentencings or parole proceedings where the defendant’s offenses involved images of the victimization.” The program brochure emphasizes that victims may do this regardless of whether they choose to be notified of such proceedings.
This process has been approved by the courts. For obvious reasons, no defendant has challenged the DOJ’s notification policy. However, the federal circuits that have addressed the issue are unanimous that written impact statements are perfectly acceptable allocution. Moreover, those statements need not be written with respect to the particular offender in question. Nor do the statements need to specifically identify the victim.
By contrast, the CAAF recently declared in a child pornography case that Article 6b requires “that victims be contacted.” At the time of that ruling, the military had no formalized system or instruction for handling the unique victim notification challenges of child pornography cases. None of the military manuals governing the conduct of trial counsel (prosecutors) and victim-witness assistance programs address either waiver of notification or unique considerations in child pornography cases. Neither does Defense Department Form 2701, which provides “initial information for victims or witnesses of crimes.”
The more substantial deviation from federal practice, however, is the requirement that the victim participate personally in the proceedings. Article 6b differs from the CVRA in one substantive way: the latter explicitly provides that the Government may assert victim’s rights (which include the right to be heard). Article 6b of the UCMJ does not provide for such a practice, but neither does the law expressly forbid it. The Rules for Courts-Martial (RCM) promulgated by the president, however, limit the right of victim allocution to the victim, their counsel, or their designee (appointed by the judge if the victim is under 18 years of age, incompetent, incapacitated, or deceased).
In United States v. Barker, the CAAF rejected the Government’s attempt to introduce a victim impact statement prepared by the victims portrayed in the child pornography at issue because they were not introduced by the victim or her counsel or designee. As the Court put it:
“All of the procedures in R.C.M. 1001A contemplate the actual participation of the victim, and the statement being offered by the victim or through her counsel. Moreover, they assume the victim chooses to offer the statement for a particular accused, as they permit only the admission of information on victim impact ‘directly relating to or arising from the offense of which the accused has been found guilty.’”
More recently, in United States v. Hamilton, the CAAF found an abuse of discretion on the part of a military judge who admitted victim impact statements authenticated at trial by law enforcement “absent any indication either that the victims intended their statements to be used in this particular prosecution or that a ‘designee’ was appropriate under the rule.” In addition to the concerns expressed in Barker, the Court determined that unsworn statements from unidentified victims unaware of the specific case are “virtually irrebuttable” in violation of the RCM provision allowing the defense to rebut statements of fact contained in victim allocution. Although the President’s rule arguably compelled this conclusion on its own, the Court held that this conclusion was also compelled by the statute.
Thus, following Barker and Hamilton, when a military member is charged with a child pornography offense, the appropriate service is obliged to seek out and notify the victim. The victim, meanwhile, must participate directly in that specific service member’s sentencing, or not at all. If two, ten, or two hundred service members are sentenced for offenses involving images of their victimization, the victim must address each case individually or forego their right to allocution. At the same time, if the victim so desires, they may exercise their allocution rights in any number of federal court proceedings without the need for notice of each individual exploitative use of their images.
III. Proposed Solution
So long as lawmakers have determined that victims should be given a right to allocution, victims of child pornography should not be unduly burdened in exercising that right due solely on whether or not the individual that exploits them wears a uniform.
Because the CAAF’s decisions are rooted in statutory interpretation, the onus to act here falls on Congress. Congress could amend Article 6b either by expressly providing for child pornography cases in a standalone provision or by adding to the current statutory language.
To accomplish the former, Congress could simply add “rule[s] of construction,” as already provided for in Article 6b(d). Article 6b(d) could be amended such that “nothing in the [article] shall be construed” to (a) require notice be provided to a victim who communicated a desire not to receive such notice to law enforcement, or (b) require child pornography victims to participate personally in a specific proceeding in order to vindicate their right to be reasonably heard.
To accomplish the latter, the notice provision, Article 6b(a)(2), could be amended to clarify that a victim may elect to waive notification, and the allocution provision, Article 6b(a)(4) could be amended to provide that a right to be reasonably heard includes the right of a child pornography victim to submit a generalized victim impact statement. Congress could also consider adding a provision comparable to that in the CVRA which allows the Government to assert the victim’s right to be heard.
The current disparity in the federal government’s treatment of child pornography victims serves no useful purpose. It subjects victims to potentially traumatic and unwanted reminders of their continuing exploitation while depriving them of the allocution benefits afforded to victims of other crimes. Whether victims are subjected to this system depends solely on the military status of the accused. Congress must act swiftly to ensure that the military justice system treats child pornography victims with the same care and respect as its civilian counterpart.
*JD, Georgetown University Law Center, 2018, BA, University of Utah, 2010. Mr. Webert is a civilian law clerk at the United States Court of Appeals for the Armed Forces (CAAF). The opinions expressed herein are solely those of the author and are not necessarily representative of those of the CAAF or the United States Department of Defense.