Novel Federal Civil Child Pornography Case Advances: Prejudgment Attachment Ordered and Stay Denied

On Friday, November 1, 2013, the federal court for the Western District of Washington in Seattle issued a groundbreaking ruling in a novel civil child pornography case which the Marsh Law Firm filed ten months ago on behalf of our client “Amy.”

In this remarkable order, Judge Richard Jones granted our motion for prejudgment attachment of convicted sex offender Joshua Osmun Kennedy’s real and personal property. The claims of another of Kennedy’s victims known as “Vicky” were consolidated with Amy’s case, and her joint-motion was also granted.

The Court summarily denied Kennedy’s request for a stay pending the Supreme Court’s upcoming decision in Paroline v. United States, which Kennedy unsuccessfully argued would be dispositive in this case. Judge Jones instead held that the civil statutes under which Amy and Vicky brought their lawsuits do not contain the same proximate cause requirement that is the subject of the pending Supreme Court case, and refused Kennedy’s request for a stay.

The Court rejected every one of Kennedy’s arguments and granted Amy’s and Vicky’s joint request to attach Kennedy’s real and personal property. The Court relied on the Sixth Circuit’s decision in Doe v. Boland, 698 F.3d 877 (6th Cir. 2012) cert. denied, 133 S. Ct. 2825 (2013), which awarded several victims civil damages after a defendant produced and publicly exhibited morphed child sex abuse images of them.

Citing Boland, Judge Jones held that Amy and Vicky suffered injury to reputation and emotional well-being, and demonstrated the probable validity of their claims:

[E]very time Kennedy shared those pornographic images, Kennedy invaded [Amy’s and Vicky’s] interests and harmed their emotional well-being and reputation.

The Court also emphasized the unique nature of 18 U.S.C. § 2255, known as “Masha’s Law”—under which Amy and Vicky brought suit—which declares that any victim “shall be deemed to have sustained damages of no less than $150,000 in value.” The Court noted the high amount of damages provided by Congress, quoting Boland:

The point of a minimum-damages requirement 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 the compensatory damages to which she is entitled.

698 F.3d at 882 (emphasis in original)

The Court also rejected Kennedy’s constitutional arguments concerning the $150,000 statutory minimum imposed under Masha’s Law. This included claims that the law violates the Fourteenth Amendment’s prohibition on grossly excessive or arbitrary punishments and the Seventh Amendment’s right to a jury trial.

Finally, the Court rejected Kennedy’s efforts to render any pre-judgment attachment prohibitive through his demand for a $300,000 bond on any attachment which might issue. The Court explained that Kennedy’s request:

is 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 those vulnerable victims if defendants have the ability to creatively move assets to become judgment-proof.

Rather than $300,000, the Court ordered a bond in the amount of the statutory state minimum of $3000.

James R. Marsh, Jennifer Freeman and Jo-Hanna Read represent Amy in this litigation; Carol L. Hepburn represents Vicky; and Kenneth W. Hart and James E. Lobsenz represent Kennedy.

According to Amy’s longtime lawyer, James R. Marsh:

“Friday’s victory represents significant progress in the ongoing battle for victims of child pornography to secure compensation for the crimes committed against them. Children whose child sex abuse images are collected and traded with impunity by guys like Kennedy finally have a meaningful remedy in Washington state. Thanks to Washington’s expansive civil attachment law and the statutory damages provided by Masha’s Law, victims can now go to court and prevent defendants from selling and hiding assets while their case is pending. We hope this sends a powerful message to people interested in child pornography. Be careful, especially in Washington state, where both federal and state law is on the side of victims and punishes the bad guys. My client is thrilled by this groundbreaking decision.”