When harm is caused to victims by multiple injurers, difficult issues arise indetermining causation of, legal responsibility for, and allocation of liability forthose harms. Nowhere is this truer than in child pornography and sex traffickingcases, in which individuals have been victimized over extended periods oftime by hundreds or even many thousands of injurers, with multiple and oftenoverlapping victims of each injurer. Courts (and lawyers) struggle with thesesituations for a simple reason: they insist on applying tests of causation thatfail when the effect was over-determined by multiple conditions. The failure toproperly understand the causation issue has exacerbated failures to properlyunderstand and distinguish the injury, legal responsibility and allocation ofliability issues.All of these issues, plus other significant issues, arose in Paroline v. UnitedStates (2014), in which the Supreme Court considered the statutory liability of aconvicted possessor of child pornography to a victim whose images he possessedfor the pecuniary losses that she suffered due to her knowledge of the widespreadviewing of those images. In this article we critique the Justices’ opinions inParoline as part of a broader discussion that is intended to clarify and distinguishthe causation, injury, legal responsibility and allocation of liability issuesin general and especially in situations involving mass sexual abuse, while alsocriticizing the Court’s ill-considered dicta that would make any compensatoryaward in civil as well as criminal cases subject to the constitutional restrictionson criminal punishment.
Tsachi Keren-Paz & Richard Wright,
Liability for Mass Sexual Abuse,
Available at: https://scholarship.kentlaw.iit.edu/fac_schol/972