(CN) - A federal judge could not calculate how much a man might owe women whose sexual abuse as children has been immortalized in Internet pornography.
Gregory Loreng is serving 96 months in prison after pleading guilty to two counts of possession of child pornography.
Earlier this year, the U.S. government sought restitution for the two children, given the pseudonyms "Amy" and "Cindy," who were allegedly depicted in the pornography Loreng viewed.
There is limited precedent, however, as to how courts can calculate the girls' losses stemming from the actions of those who viewed pornographic images but did not make or distribute child pornography.
The government calculated Amy's total losses at $3.3 million and Cindy's at $1.1 million, including treatment, counseling expenses, and lost earnings. It suggested dividing the children's losses by the total number of defendants who have been ordered to pay restitution in the cases, which would bring Amy's restitution award to $19,000 and Cindy's to $28,000.
At the sentencing hearing, U.S. District Judge John Bates expressed skepticism of this approach.
"It is unclear why the losses caused by this defendant are related to the number of successful convictions to date," he said, according to a transcript of the hearing Bates provided in his ruling Monday.
"I don't see the correlation there," Bates added. "Instead, the victims' injuries seem more appropriately related to the number of times that the images have been viewed, whether or not the individuals viewing the images are already or will be successfully prosecuted."
Bates urged the government to devise a better formula for calculating damages, and asked for evidence showing how many viewers saw the online kiddie porn.
He noted Monday that the government never submitted a report by the date of the restitution hearing establishing that the pictures uploaded by Loreng were actually of Amy or Cindy.
"Pressed as to this omission at the hearing, government counsel acknowledged that there was no evidence in the existing record to tie Loreng to images of Amy or Cindy," the 26-page judgment states.
Although the prosecutor had the report in his possession at the hearing, the court said it was "far too late" to enter this evidence into the record.
"The government had ample opportunity to provide evidence key to its request, and it has failed to take it," Bates wrote. "Because the court declines to consider the report, the Court finds that there is no record evidence that Loreng possessed images of Amy and Cindy. The court hence has no basis to find by a preponderance of the evidence that Amy and Cindy were victims of Loreng's acts."
This was only the first of "several fatal failures" in the government's restitution request, according to the ruling.
The government also failed to present the court with an adequate formula to calculate the girls' losses with "reasonable certainty," the court found.
"The proposed formula suffers from two flaws: it begins with the total amount of Amy's and Cindy's losses, instead of the portion of Amy's and Cindy's losses caused only by continued viewing of the images, and it employs an arbitrary method of apportioning the total among those who contribute to it," Bates wrote.
"It is evident that, although continued viewing of the images adds to the victims' losses, beginning with all the victims' losses, including those from the abuse and the initial distribution of the images is the wrong starting point here - Loreng's acts and his existence as a potential viewer of the images played no part in the victim's abuse or the images' distribution," he added. By seeking to divide the full losses evenly among a universe of defendants, the government ignores the role of the abusers and initial distributors, the very people who are most culpable and who most directly caused Amy's and Cindy's losses."
The government's formula would also force Loreng to pay restitution on behalf of unconvicted viewers, which violates the principle of fair restitution, Bates found.
He also criticized the government for failing to present an alternative restitution formula or the additional evidence he requested.
"What is even more stark, perhaps, is what the government chose not to do," Bates wrote. "The government has not provided direct evidence of losses caused by Loreng's acts, for instance evidence that either Amy or Cindy were aware of those acts and required an additional counseling session or missed a day of work as a result."
Applying the reasoning behind his opinion may result in a low restitution figure for victims of child pornography, the judge noted.
Nevertheless, "while viewing child pornography is a grave crime that warrants severe punishment - a gravity that Loreng's ninety-six month sentence reflects in this case - it may turn out that the viewing of a single image where tens of thousands are circulating does not (without more) cause significant loss
to the victim," Bates concluded (emphasis and parentheses in original).