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

By Jennifer Freeman

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 was filed ten months ago by Freeman Lewis LLP's client "Amy." In this order, Judge Richard Jones granted Amy’s 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.

Regarding Amy’s and Vicky’s motion for an attachment, the Court rejected every one of Kennedy’s arguments. 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 exhibited morphed child sex abuse images of them. Citing Boland, the Washington Court held that Amy and Vicky suffered injury to reputation and emotional well-being and demonstrated the probably 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. "Amy" v. Kennedy at 6

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 (698 F.3d at 882):

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.

"Amy" v. Kennedy at 7(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.

"Amy" v. Kennedy at 10. Rather than $300,000, the Court ordered that a bond be provided for the statutory state minimum of $3000.

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

Freeman Lewis LLP is a boutique firm focusing on employment law, victims' rights, securities arbitration, white-collar criminal law, commercial litigation, and ERISA litigation. For more information, visit http://www.freemanlewis.com.