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Federal Criminal Restitution for Child Pornography Victims

By James R. Marsh – October 28, 2014


On April 23, 2014, the United States Supreme Court issued a much-anticipated decision concerning federal criminal restitution for child pornography victims. The case, Paroline v. United States, 134 S. Ct. 1710, 188 L. Ed. 2d 714 (2014), attracted 14 amicus briefs supporting a victim named Amy, whose road to the Supreme Court started in 2008.


Victims of child pornography are harmed twice: first, by the sex abuse and sexual assault committed against them and, second, by the subsequent distribution and collection of the images and videos depicting their sexual abuse. The worldwide, ubiquitous circulation of a victim’s child pornography is a never-ending invasion of privacy that is both psychologically traumatizing and emotionally unsettling.


Congress addressed these serious harms by including the Mandatory Restitution for Sex Crimes provision within the Violence Against Women Act of 1994. Pub. L. No. 103-322, § 40113(b)(1), 108 Stat. 1902, 1904 (codified at 18 U.S.C. §§ 2248, 2259 (2012)). The provision codified at 18 U.S.C. § 2259 provides for mandatory restitution for various offenses involving the sexual exploitation of children found in sections 2251–2258.


As part of a remedial statutory scheme, 18 U.S.C. § 2259 requires federal courts to issue restitution orders to victims of child pornography crimes, which include the creation, distribution, trafficking, and possession of child sex abuse images and videos. Courts are required to hold individual defendants liable for the “full amount” of a victim’s out-of-pocket losses, including the cost of psychological treatment, lost income, and attorney fees.


The statute enumerates six categories of pecuniary losses:

  1. medical services relating to physical, psychiatric, or psychological care;

  2. physical and occupational therapy or rehabilitation;

  3. necessary transportation, temporary housing, and child care expenses;

  4. lost income;

  5. attorney fees, as well as other costs incurred; and

  6. any other losses suffered by the victim as a proximate result of the offense.

Restitution in the Federal Courts
Over the past five years, child pornography victims have increasingly turned to the federal courts to obtain restitution. Despite a congressional mandate requiring defendants to pay the “full amount” of a victim’s losses, federal trial and appellate courts are deeply divided on what the restitution statute requires.


Some district courts have ruled that each individual defendant must pay the full amount of a victim’s losses, while others have decided that each defendant must pay just a tiny fractional share of the total losses suffered by a victim. A few courts awarded no restitution whatsoever.

At the circuit court level, several circuits read a proximate cause requirement into section 2259. Only the Fifth Circuit rejected a proximate cause requirement, and only the Third Circuit did not directly consider this issue. Ten circuits held that a victim must show that all his or her losses were the proximate result of an individual defendant’s crime in order to obtain “full restitution.”

The Fifth Circuit reviewed most of these decisions and—acting en banc—specifically rejected them, explaining that “[a]ny ‘seeming agreement on a standard [in the circuits] suggests more harmony than there is.’” In re Amy Unknown, 701 F.3d 749, 766 (5th Cir. 2012).


Among the 10 circuits holding that section 2259 contains a general proximate cause requirement, the rationales have varied widely. Two circuits based such a requirement on the principle of general statutory construction—see United States v. Kennedy, 643 F.3d 1251, 1261–62 (9th Cir. 2011) (petition for cert. filed, No. 12-651); United States v. McDaniel, 631 F.3d 1204, 1208–9 (11th Cir. 2011)—while four other circuits rejected this reasoning, holding instead that “traditional principles of tort and criminal law” require a general proximate cause limitation. United States v. Monzel, 641 F.3d 528, 535 (D.C. Cir.), cert. denied sub nom. Amy v. Monzel, 132 S. Ct. 756 (2011), on appeal after remand, No. 12-3093 (oral argument scheduled May 10, 2013); United States v. Burgess, 684 F.3d 445, 456–57 (4th Cir. 2012); United States v. Aumais, 656 F.3d 147, 153 (2d Cir. 2011); United States v. Benoit, 2013 WL 1298154, at *15 (10th Cir. Apr. 2, 2013).


The Sixth Circuit noted these diverging principles but concluded “[w]e need not choose between the rationales.” United States v. Evers, 669 F.3d 645, 658–59 (6th Cir. 2012). The First Circuit acknowledged the disagreement but developed its own resolution by imposing a general proximate cause requirement, while concluding that the requirement could be shown in the “aggregate” rather than at the “individual” level. United States v. Kearney, 672 F.3d 81, 94–95 (1st Cir. 2012). The Eighth Circuit followed the First Circuit. United States v. Fast, 709 F.3d 712, 721–22 (8th Cir. 2013). Finally, the Seventh Circuit added yet another variation, holding that, while a proximate cause requirement exists, it results in full liability (i.e., joint and several liability) for any offender who distributes child pornography but not for an offender who possesses child pornography. United States v. Laraneta, 700 F.3d 983, 990–92 (7th Cir. 2012).


This circuit split resulted in the Supreme Court granting certiorari on the following question: What, if any, causal relationship or nexus between the defendant’s conduct and the victim’s harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. § 2259? Paroline v. United States, 133 S. Ct. 2886, 186 L. Ed. 2d 932 (2013).


Amy’s Story
Amy was sexually abused as a young girl to produce child sex abuse images, which are legally known as child pornography. When she was 17, Amy discovered that these images were being trafficked on the Internet—in effect repeating her original abuse—and realized that her humiliation and pain will continue well into the future as thousands of additional wrongdoers witness those crimes.


The defendant in the case before the Supreme Court, Doyle Randall Paroline, pled guilty in federal court to possessing images of child pornography, which included Amy, in violation of federal child pornography laws. Amy sought restitution under 18 U.S.C. § 2259, the Mandatory Restitution for Sexual Exploitation of Children Act of 1994, for lost income and future treatment and counseling costs. The case eventually made it to the Fifth Circuit, which ruled en banc in Amy’s favor.


The case was accepted by the Supreme Court on June 27, 2013. Oral argument occurred on January 22, 2014 and the Court issued its decision on April 23, 2014.


Amy’s Legal Theory
Amy, whose story was powerfully told by noted journalist and author Emily Bazelon in the New York Times Magazine last year and popularized earlier this year on Law and Order: SVU in the episode Downloaded Child, argued that joint and several liability is the best mechanism to hold not just Paroline responsible but every other defendant who trades and collects her child sex abuse images.


In order to prevail under this theory, victims like Amy must first establish that they suffered “harm” from a defendant’s child pornography crime. See 18 U.S.C. § 2259(c). This cause-in-fact link or nexus between an individual’s harm and a defendant’s crime establishes a statutorily recognized “victim” entitled to restitution for the “full amount” of his or her losses. 18 U.S.C. § 2259(c) & (b)(1).


Next, the victim establishes the “full amount” of his or her losses from child pornography. In this case Amy provided detailed, expert evidence of, for example, the projected costs for psychological counseling she requires as a victim of child pornography. These costs are the losses Congress required to be awarded as restitution. Accordingly, as the Fifth Circuit held, the district court should have entered a restitution award in Amy’s favor for this amount, thereby making Paroline jointly and severally liable for her full losses along with other defendants convicted in other cases.


This legal theory makes every defendant responsible for the full amount of Amy’s losses and shifts the burden on collection from the innocent victim to guilty defendants who are, after all, benefiting and willingly participating online in Amy’s continued sexual abuse.

The Fifth Circuit’s practical interpretation of section 2259 also followed applicable tort law principles—i.e., the principles providing ample compensation to victims of intentional torts. Section 2259 applies to serious felonies with stringent mens rea requirements. For such intentional torts committed against vulnerable victims, the common law was never concerned about strict “proximate cause” limitations; instead, it imposed broad joint and several liability.


Once Amy collects the full amount of her losses, she cannot collect any more restitution. The law specifically provides that the court must set the amount any one defendant pays based on that individual defendant’s financial resources, thereby ensuring that no defendant bears a disproportionate burden. Under Amy’s theory, most defendants will pay the equivalent of child support every month until Amy is made whole. After that, restitution will end, and if any defendant felt their obligation was unfair, that defendant can seek contribution from other defendants—as Amy has been doing for six years now—to even things out.


The Supreme Court’s Majority Decision
In a split 5–3–1 decision, the Court rejected Amy’s legal theory with all three sides calling for congressional reform of the law. The majority decision, which was written by Justice Kennedy and joined by Justices Ginsburg, Breyer, Alito, and Kagan, recognized the terrible harm caused by child pornography but created a regime that will be hard to implement in the lower courts and will lead to years, if not decades, of additional litigation about the proper amount of restitution in any given case.


Critically for victims, the Court acknowledged, in the strongest possible terms, the devastating nature of this pernicious crime:


The full extent of this victim’s suffering is hard to grasp. Her abuser took away her childhood, her self-conception of her innocence, and her freedom from the kind of nightmares and memories that most others will never know. These crimes were compounded by the distribution of images of her abuser’s horrific acts, which meant the wrongs inflicted upon her were in effect repeated; for she knew her humiliation and hurt were and would be renewed into the future as an ever-increasing number of wrongdoers witnessed the crimes committed against her.

The majority explained that

there can be no question that it would produce anomalous results to say that no restitution is appropriate in these circumstances. It is common ground that the victim suffers continuing and grievous harm as a result of her knowledge that a large, indeterminate number of individuals have viewed and will in the future view images of the sexual abuse she endured . . . . Harms of this sort are a major reason why child pornography is outlawed . . . . In a sense, every viewing of child pornography is a repetition of the victim’s abuse.

Ultimately, however, the Court rejected Amy’s solution of joint and several liability with contribution and adopted an almost nonsensical standard for determining restitution:

  • A court should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.

  • The amount should not be severe.

  • The amount should not be token or nominal.

  • The award should be reasonable and circumscribed.

  • The award should recognize the indisputable role of the offender in the causal process underlying the victim’s losses and be suited to the relative size of that causal role.

  • Trivial restitution orders are prohibited.

  • The victim should someday collect restitution for all of his or her child pornography losses.

  • Restitution orders should represent an application of law, not a decision maker’s caprice.


The majority urged the lower courts to “use discretion and sound judgment” without resorting to a “precise mathematical inquiry.”


In other words, the majority decision basically accepted the government’s rejoinder at oral argument that there should be a “fudge factor” when fixing compensation for victims of child pornography, while adopting “rough guideposts” for “determining an amount that fits the offense.”


Chief Justice Roberts’s Dissent
The dissent, which was written by Chief Justice Roberts and joined by Justices Scalia and Thomas, declared that, under the majority’s proposal, “Amy will be stuck litigating for years to come” and that the best she can hope to obtain is “piecemeal restitution” and “trivial restitution orders.”


“Congress set up a restitution system sure to fail in cases like this one.” That system “effectively precluded restitution in most cases involving possession or distribution of child pornography.” When it comes to Paroline’s crime—possession of two of Amy’s images—“it is not possible to do anything more than pick an arbitrary number for that amount.” The dissent concluded:


The Court’s decision today means that Amy will not go home with nothing. But it would be a mistake for that salutary outcome to lead readers to conclude that Amy has prevailed or that Congress has done justice for victims of child pornography. The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it.


Justice Sotomayor’s Dissent
Justice Sotomayor, who was alone in her dissent, found that the majority’s approach cannot be reconciled with the restitution law that Congress enacted: Congress mandated restitution for the “full amount of a victim’s losses,” with defendants held “jointly and severally liable for the indivisible consequences of their intentional, concerted conduct.”

One key problem that Justice Sotomayor identified is the proper standard of causation and how that gets applied in a world where “child pornography victims suffer harm at the hands of numerous offenders who possess their images in common.”


Justice Sotomayor’s solution to this quandary is aggregate causation. Aggregate causation applies when “the concurrent or successive acts or omissions of two or more persons, although acting independently of each other, are in combination, the direct or proximate cause of a single injury.” In this case, any defendant may be held liable “even though his act alone might not have caused the entire injury, or the same damage might have resulted from the act of the other” defendants.


The policy issue is simple: The child pornography restitution statute offers no safety-in-numbers exception for defendants who possess images of a child’s sex abuse in common with other offenders. The aggregate causation standard exists to avoid exactly that kind of exception. Congress did not intend the law to create a safe harbor for those who inflict upon their victims the proverbial death by a thousand cuts.


After critiquing the majority’s decision as preventing restitution “in cases where the victim’s losses are caused by too many offenders” and the dissenters’ decision as foreclosing “entry of restitution in cases where a victim suffers indivisible losses as a result of the aggregate conduct of numerous offenders,” Justice Sotomayor proposed her own solution.


Joint and Several Liability with Contribution
Justice Sotomayor explains that “the nature of the child pornography industry and the indivisible quality of the injuries suffered by its victims make this a paradigmatic situation in which traditional tort law principles would require joint and several liability.”


This means that “individuals who act together, with the common end of trafficking in the market for images of child sexual abuse” cannot “hide behind the anonymity of a computer screen.” As joint actors, they are all individually liable for the full amount of the victim’s losses. This is especially important because “the injuries caused by child pornography possessors are impossible to apportion in any practical sense.”


Child pornography possessors are jointly liable under this standard, for they act in concert as part of a global network of possessors, distributors, and producers who pursue the common purpose of trafficking in images of child sexual abuse. As Congress itself recognized, “possessors of such material” are an integral part of the “market for the sexual exploitative use of children.” By communally browsing and downloading Internet child pornography, offenders like Paroline “fuel the process” that allows the industry to flourish. Indeed, one expert describes Internet child pornography networks as “an example of a complex criminal conspiracy,” the quintessential concerted action to which joint and several liability attaches.


To mitigate any unfairness in holding one or even several defendants responsible for the entire amount of a victim’s losses, defendants must be able to seek contribution from all similarly situated defendants. Adding joint and several liability with a right to contribution to the child pornography restitution law will solve two of the problems that vexed both the majority and the dissent.


What Congress Must Do
As Justice Sotomayor recognized, “in the end, of course, it is Congress that will have the final say.” If Congress wishes to re-codify its full restitution command, “it can do so in language perhaps even more clear than section 2259’s ‘mandatory’ directive to order restitution for the ‘full amount of the victim’s losses.’”


According to Justice Sotomayor, Congress might amend the statute, for example, to include the term “aggregate causation.” Alternatively, “to avoid the uncertainty in the Court’s apportionment approach, Congress might wish to enact fixed minimum restitution amounts.”


The Ineffectiveness of the Current Law
Recent facts present a dismal reality for victims of child rape and sexual assault that results in child pornography. The United States Sentencing Commission recently compiled the following statistics about child pornography offenders subject to fines and restitution under the statutory regime:

  • Of 1,922 child pornography cases in the federal court system in 2013, no fine or restitution was ordered in 1,423 of those cases. That means that 74 percent of convicted criminals subject to Congress’s mandatory restitution requirement under current law were ordered to pay nothing.

  • Just 286 offenders—or about 15 percent of convicted defendants—were ordered to pay any restitution.

  • Shockingly, 190 defendants who were found financially capable of paying a fine (which means the probation officer determined that the defendant had demonstrated financial resources) were not ordered to pay restitution.

  • Only 23 defendants were ordered to pay both a fine and restitution.

  • For 437 child pornography defendants who were ordered to pay anything—either a fine or restitution or both—the median payment ordered was just $3,000.

Clearly, full mandatory restitution for child pornography crimes under the current law, from every defendant in every case for every victim, is an illusion.


Congressional Action
Faced with the United States Supreme Court’s draconian decision, U.S. Senators Orrin Hatch (R-Utah) and Chuck Schumer (D-N.Y.) spearheaded a comprehensive legislative fix, Senate Bill 2301, which addresses the concerns outlined by the Court in Paroline v. United States. The Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014 was introduced exactly two weeks after the Supreme Court’s decision.


Just six weeks later, U.S. Representative Matt Cartwright (D-Pa.), along with co-leads Rep. Tom Cotton (R-Ark.), Rep. Suzan DelBene (D-Wash.), Rep. Randy Weber (R-Tex.), Rep. Judy Chu (D-Cal.), and Rep. Doc Hastings (R-Wash.), introduced the bipartisan House companion bill, House Bill 4981, with the support of 69 House colleagues.


National advocacy groups such as the National Center for Missing and Exploited Children, the National Crime Victim Law Institute, the National Center for Victims of Crime, and the National Task Force to End Sexual and Domestic Violence Against Women are also supporting this bill. How this novel new law will allow victims of child pornography to receive meaningful and timely compensation is discussed below.


About the Act
The act’s congressional findings reflect the long-held maxim that the demand for child pornography harms children because it drives production, which involves severe and often irreparable child sexual abuse and exploitation. The harms caused by child pornography are more extensive than the harms caused by child sex abuse alone because child pornography is a permanent record of the abuse of the depicted child, and the harm to the child is exacerbated by its circulation. Every viewing of child pornography is a repetition of the victim’s original childhood sexual abuse.


Congress recognizes that victims suffer continuing and grievous harm as a result of knowing that a large, indeterminate number of individuals have viewed and will in the future view images of their childhood sexual abuse. Harms of this sort are a major reason that child pornography is outlawed.


Most important, the unlawful collective conduct of every individual who reproduces, distributes, or possesses the images of a victim’s childhood sexual abuse plays a part in sustaining and aggravating the harms to that individual victim. Multiple actors independently commit intentional crimes that combine to produce an indivisible injury to a victim.


It is the intent of Congress that victims of child pornography be fully compensated for all the harms resulting from each and every perpetrator who contributes to their anguish. Through the act, Congress adopts an aggregate causation standard to address the unique crime of child pornography and the unique harms caused by child pornography. Victims should not be limited to receiving restitution from defendants only for losses caused by each defendant’s own offense of conviction. Courts must apply a less restrictive aggregate causation standard in child pornography cases, while also recognizing appropriate constitutional limits and protections for defendants.


The Amy and Vicky Act responds to the Paroline decision and does three things that address the unique nature of these crimes. First, it considers the total lifetime harm to victims from the initial sexual abuse (grooming is in the congressional findings) to the last possessor. Second, it requires meaningful and timely restitution. Third, it allows defendants who have contributed to the same victim’s harm to spread the restitution cost among themselves.


A victim’s losses include medical services, therapy, rehabilitation, transportation, child care, and lost income. Restitution does not include pain and suffering, emotional damages, or punitive damages. If a victim was harmed by a single defendant, that defendant must pay full restitution for the victim’s losses.


If a victim was harmed by multiple individuals, including those not yet identified, a judge can impose restitution on an individual defendant in two ways, depending on the circumstances of the case: The defendant must pay “the full amount of the victim’s losses” or at least $250,000 for production, $150,000 for distribution, or $25,000 for possession.


Federal law already provides a mechanism for creating a fair and balanced payment schedule according to each defendant’s ability to pay. Multiple defendants who have harmed the same victim and who are liable for the “full amount” are jointly and severally liable and may sue each other for contribution to equalize their restitution obligation.


Congress is expected to reintroduce this bill in the next session in early 2015.

Keywords: litigation, children's rights, Paroline v. United States, child pornography, restitution, Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014

James R. Marsh founded the Children's Law Center in Washington, D.C., and leads the Marsh Law Firm in New York City, New York.

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