The Senate Judiciary Committee discussed a bill March 17 that would allow victims of child pornographers to sue their victimizers in civil court and win mandatory minimum judgments of $150,000.
Senate Bill 158, introduced by Sen. Karen Peterson, D-Stanton, permits victims to seek damages in Superior Court against anyone who “participates in, arranges for, supervises, finances or controls the production of” child pornography, as well as anyone who “knowingly possesses” the material.
If the defendant were found liable under any of those conditions, the plaintiff automatically would be entitled to at least $150,000 in damages.
The legislation also extends the statute of limitations for victims to file suit from two years to three.
Committee members did not release the bill, citing certain legal quandaries that still must be sorted out.
Several senators on the committee raised concerns over the language assigning liability to anyone who “knowingly possesses” child pornography.
Under the proposed legislation, possession would include using a computer “to produce, store or transmit” pornographic materials.
Senate President Pro Tem Anthony DeLuca, D-Varlano, said that standard could implicate a person who received child pornography in a spam email.
Even if the person opened the message, saw the image and immediately deleted it, he or she nonetheless could be said to be in possession of the image, he argued.
Sen. Harris B. McDowell III, D-Wilmington North, raised the issue of “sexting,” a practice wherein a person takes a lewd photograph or video with a cell phone and sends it to another.
McDowell posed a hypothetical situation: What if a minor “sexted” his or her significant other, who also is a minor, then, after a breakup, decided to sue under the proposed statue? Would his or her parents be forced to pay $150,000 in damages?
Drew Fennell, executive director of the American Civil Liberties Union of Delaware, raised another issue related to the minimum damages provision.
The promise of $150,000 in guaranteed payout if their clients prevail would be a powerful incentive to trial attorneys, which could lead to frivolous lawsuits against the email recipient in DeLuca’s example, or the parents of McDowell’s young lovers.
“There’s a different level of discretion when there’s a guaranteed level of compensation,” Fennell said. “[Trial lawyers’] obligations to their clients are different.”
