For victims whose child abuse images are constantly being circulated, the trauma from that circulation constantly continues. The violation never ends. Victims should be able to pursue damages for so long as new distributions as occurring, says Paul G. Cassell, professor of law at the S.J. Quinney College of Law and former federal district court judge.
Late last week, a federal judge dismissed a lawsuit regarding the image of a naked baby’s genitals on Nirvana’s landmark 1991 Nevermind album. The judge concluded that the person whose genitalia was depicted lacked any right to sue for damages for the on-going distribution of the picture. This unfortunate ruling misconstrues an important federal law protecting victims of child sex abuse imagery and should be reversed on appeal by the Ninth Circuit.
Spencer Elden was four months old when he was gagged and photographed underwater—with a photo emphasizing his exposed genitals forming the centerpiece of Nirvana’s album cover. In a lawsuit filed last year, the now-thirty-one-year-old Elden argued that the image constituted child sex abuse imagery (sometimes referred to, inaccurately, as child “pornography”). Under a federal statute known as Masha’s law, victims of the production, distribution, and promotion of such images are entitled to sue those involved for damages. Elden sued the band Nirvana and the photographer that it hired for their involvement in continuing distribution of his picture.
In his suit, Elden presented significant allegations that Nirvana sought to create a sexualized image of a child to sell records. According to Elden’s filed complaint, lead singer Kurt Cobain sketched the Nevermind album cover and, in at least one instance, drew semen all over the image. In several other entries in the same journal, Cobain described a twisted vision for the cover as a manifestation of his sexual disturbances. He even wrote: “I like to make incisions into the belly of infants then fuck the incision until the child dies.” Elden’s complaint also notes that, in internal communications, the band and their record company discussed whether “anyone has a problem with [Elden’s] dick” appearing on the cover.
Reasonable jurors can debate whether the album cover falls within the federal definition for sex abuse imagery. But in last week’s ruling, the judge assumed that the image was actionable under Masha’s law. Even on that premise, however, the judge concluded that Masha’s law contained a statute of limitations barring Elden from proceeding in court even though the image is still in distribution. The judge found that, because Elden was aware of the image when he was eighteen years old, a ten-year statute of limitations began running at that time. Without accounting for the ongoing distribution, and since Elden is now 31, the judge ruled that the time for bringing any lawsuit regarding the continuing distribution had expired.
This decision has broad and troubling implications beyond the unusual facts at hand. The judge’s ruling significantly undercuts the way Congress intended for Masha’s law to operate. The law allows victims to sue for distribution of child sex abuse imagery for so long as the distribution continues. In fact, Congress even added language to the law in 2006, stating that a lawsuit was timely “regardless of whether the injury occurred while such [child] was a minor.” The reason for this clarification, as Congress explained in supporting findings of fact, was that every instance of viewing of the images “represents a renewed violation of the privacy of the victims and a repetition of their abuse.” Congress designed the law to recognize the fact that child sex abuse imagery can remain in circulation for decades and, as Senate sponsor John Kerry noted, a new injury and violation occurs “when those images are downloaded.” Because the injuries and violations continue, so should the ability to recover for those injuries and violations.
In dismissing Elden’s suit, the judge concluded that the law should not be read to allow the clock to be “continuously reset each day” that an image is distributed. But that is precisely what Congress intended. And rightly so. For victims whose child abuse images are constantly being circulated, the trauma from that circulation constantly continues. The violation never ends. Victims should be able to pursue damages for so long as new distributions as occurring.
Elden’s lawyers have already filed their notice of appeal and the case was assigned a docket number in the Ninth Circuit. Spencer Elden’s opening brief is due on November 4, 2022. The Circuit should quickly overturn this ill-conceived ruling. Those trafficking in child sex abuse imagery should not be able to wait out the clock and then traffic the images with impunity.