Nesset responds to civil court suit

Joseph Tingley and Alex Weidenhof

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Former Allegheny professor Kirk Nesset has filed a motion to have a civil case against him dismissed, according to court documents. The motion, which included a letter from Nesset to the U.S. District Court for the Western District of Pennsylvania, was filed on Feb. 6.

Nesset, who was charged with receipt, possession and distribution of child pornography, was sentenced to 76 months in federal prison on Feb. 8, 2016. He is currently serving his sentence at a federal correctional facility in Lompoc, California.

The civil suit seeks reparations from Nesset on behalf of eight plaintiffs, all of whom appeared in the child pornography discovered in Nesset’s possession following his arrest on Oct. 1, 2014.

As part of his sentence, Judge David Cercone imposed $78,000 in restitution to be paid to the survivors of the abuse pictured in the images found in Nesset’s possession. Two of the plaintiffs are entitled to receive restitution payments from Nesset, according to an article published by The Campus on Jan. 27.

In his letter to the U.S. District Court of Western Pennsylvania, Nesset called the complaint “frivolous” and “opportunistic.”

“I had no connection to the production of the images that the complaint cites, let me emphasize, nor was there ever ‘distribution’ of such from my end,” Nesset wrote.

In the letter, Nesset also asserts that his possession of the images did not cause “proximate harm” to the plaintiffs. He also accused the two attorneys involved in the case, Carol Hepburn of Seattle, Washington and Katie Shipp of New York City, New York, of taking advantage of him while he is in prison.

Hepburn said the suit is not taking advantage of Nesset and that many people have defended themselves from prison.

“[Nesset] can hire a lawyer. And, other than that, he seems quite capable of raising issues to the court as he did in his letter,” Hepburn said. “He does not get a free pass on his civil responsibilities just because he is serving a sentence.”

Furthermore, Hepburn said the need of the plaintiffs is great, and they cannot wait for him to be released.

“These young people have ongoing needs for medical and psychological attention,” Hepburn said. “Many of them are not able to work because of these damages, so I suppose they are supposed to sit on their hands and do nothing until he gets out of jail? [Nesset] should have thought about that before he downloaded those images.”

While she said that the suit does not allege that Nesset directly participated in the exploitation of her clients, Hepburn said that he none the less contributed to their distress by downloading images and videos of their abuse.

“[The harm] comes from somebody knowing that Mr. Nesset is out there looking at the images of you getting raped and sodomized,” Hepburn said.

Many of her clients have long-lasting mental health needs as a result of their abuse, according to Hepburn. She said the knowledge that images of their exploitation as children still exists leaves many with anxiety and paranoia about being recognized or even stalked by viewers of this material.

In his motion, Nesset also cited the case of The United States v. Galan, which also dealt with restitution for survivors of child pornography. A survivor, referred to as Cindy, was abused 11 years before Cecilio Galan was sentenced for possessing images of her abuse, according to court documents.

Galan was initially ordered to pay restitution to Cindy by a district court in Oregon. However, on appeal to the U.S. District Court of Appeals for the Ninth District, it was found that the court had not taken into account what damages had been caused by the original abuser, as opposed to that of the defendant. The court therefore ruled that any restitution to be paid by Galan had to be linked to the defendant’s own actions.

“The losses, including ongoing losses, caused by the original abuse of the victim should be disaggregated from the losses caused by the ongoing distribution and possession of images of that original abuse, to the extent possible,” the decision read in part.

Nesset said this and other similar cases prove that the suit against him has no legal basis.

“Restitution must reflect, these cases insist, the consequences of a defendant’s own conduct,” Nesset wrote.

Hepburn said the Galan case was filed in criminal court, and as the current suit is being filed in civil court, the ruling has no basis.

“The basic substance of the matter is that these are apples and oranges,” Hepburn said.

The plaintiffs in the civil suit against Nesset filed a response to Nesset’s motion to dismiss on Wednesday, Feb. 22.

The plaintiffs asked that the court not grant Nesset’s motion to dismiss the case on four grounds.

First, the plaintiffs claim in their response that Nesset’s motion was untimely. The plaintiffs claim that according to the Federal Rules of Criminal Procedure, his motion to dismiss was due on Feb. 3. The plaintiffs say in the response that his motion  to dismiss, filed Feb. 6, was untimely, and should not be considered by the court.

The plaintiffs further claim in the response that Nesset’s motion violated the U.S. District Court for the Western District of Pennsylvania’s Standing Order for All Civil Cases, which requires that “parties must meet and confer prior to the filing of a Motion to Dismiss to determine whether it can be avoided.”

The third ground on which the plaintiffs claim Nesset’s motion should not be considered is that his motion relies on a federal criminal law, rather than civil law.

“[T]he Defendant’s reliance on United States v. Galan … is clearly misplaced since Galan is a federal criminal decision discussing restitution, … not civil remedies,” the plaintiff’s response reads in part.

The plaintiffs also claim that the U.S. Court of Appeals for the Third Circuit ruled that victims of child pornography are entitled both to restitution and civil reparations.

A fourth ground on which the plaintiffs are asking the court to not consider Nesset’s motion is that production of child pornograhy is not required for the plaintiffs to seek civil relief.

“[T]he Plaintiffs do not allege in their Complaint that the Defendant was involved in the production of their child sex abuse images,” the plaintiffs’ response reads in part. “The Defendant’s involvement in the original production of the Plaintiffs’ child sex abuse images is not required for Plaintiffs to recover.”

Rather, the response claims, Nesset’s possession of child pornography is sufficient for the plaintiffs to seek recovery from Nesset in civil court.

Shipp and Hepburn argue in the response that Nesset’s motion should be denied by the court for the reason that some of the plaintiffs did not receive restitution after Nesset’s criminal conviction.

“The Defendant failed to follow the Federal Rules of Criminal Procedure and the Court’s Standing Order. Additionally, his Motion to Dismiss repeatedly confuses criminal with civil law and inaccurately concludes that his payment of restitution somehow satisfies his civil liability to the Plaintiffs in this case- most of whom did not receive restitution from the Defendant in the criminal case,” the response reads in part. “For all the above-stated reasons and arguments, the Defendant’s Motion to Dismiss should therefore be denied.”

The motion will be considered by an assigned judge, who will decide whether or not to dismiss the suit.

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