By Mark Kernes
WASHINGTON - Child pornography, of course, is against the law, but that hasn't prevented millions of people from posting such material on the internet, nor millions more from downloading it to their computers, and the American legal system is chock full of people being prosecuted for both acts, since even possession of child porn is against the law.
But the law—specifically, 18 U.S.C. §2259—also requires those convicted of posting and/or downloading such material "to pay the victim (through the appropriate court mechanism) the full amount of the victim’s losses as determined by the court," with such losses to include any medical services (including mental and physical therapy) required by the victim, any transportation, temporary housing or child care expenses incurred; any lost income due to the victim's appearance in child porn; any attorney fees and costs incurred by the victim; and "any other losses suffered by the victim as a proximate result of the offense."
It is this statute that will form the basis for the arguments in Doyle Paroline v. United States (PDF), which the U.S. Supreme Court has just accepted for consideration for the high court's 2013-'14 term.
Notably, there's nothing voluntary about the "restitution" required under §2259; the judge in the case is required to issue such an order, and that judge is also not allowed to take into account whether the defendant is broke, nor whether the victim has received any other compensation for his/her child-porn-related injuries.
But the question then arises, what is meant by "the full amount of the victim’s losses"? After all, it's the rare (possibily non-existent) case where an image (or video) of child porn is created and only the particular defendant on trial for child porn has possessed it. The National Center for Missing and Exploited Children keeps databases that are filled with multiple images of particular children, which images have been supplied to it by law enforcement, by groups like ASACP, by concerned citizens who happen to stumble across it on the Web, and by its own researches.
So the question then becomes, since thousands if not millions of copies of the same child porn image have been found on multiple defendants' computers, should any one defendant who has an image of a particular child's sexual abuse be required to pay for all of the expenses incurred by that victim, or should some attempt be made to parse those reimbursements among the many child porn possessors who've been found to have that same image?
It's a question that has split the federal circuits widely, and within the past year, appeals panels in the Tenth Circuit (U.S. v. Benoit) and the Ninth (In re: Amy and Vicky, child pornography victims) have rejected applying the "full amount" clause to the defendants before them, based on the fact that the victims could not prove that the child-porn-possessing defendant was in any proximate way the cause of the victim's harm. In the "Amy" and "Vicky" case, the Ninth Circuit panel remanded the case to the trial court to "conduct such further proceedings as may be appropriate to determine an amount of restitution to be paid to Amy and Vicky."
However, in Benoit, which also involves victim "Vicky" (who has sought restitution from several child-porn defendants), the court took a more conservative view.
"Courts have struggled with articulating a precise standard of proximate cause in the restitution context under §2259," the Tenth Circuit panel wrote. "Although this court has not specified the nature of the proximate cause requirement in §2259, several other circuits have determined that the government must show the victim's losses were proximately caused by the particular defendant in question and that a showing of causation more generally is insufficient. In deciding 'whether a victim’s loss attributable to a defendant under the restitution statute is limited to losses proximately caused by the defendant,' the Fourth Circuit recently held 'that nothing in the text or structure of the restitution statute affirmatively indicates that Congress intended to negate the ordinary requirement of proximate causation for an award of compensatory damages... Rather, the statute's language, which defines a victim as one "harmed as a result of a commission" of a defendant’s acts, invokes the well-recognized principle that a defendant is liable only for harm that he proximately caused.'
"Similarly," it continued, "the Eleventh Circuit held that 'for proximate cause to exist, there must be a causal connection between the actions of the end-user and the harm suffered by the victim ... any other result would undermine the express wording of §2259.'"
Which brings us to the Fifth Circuit's Paroline case, where "Amy," whose uncle filmed his sexual abuse of the child and posted the videos on the internet (and whose images have figured into over 3,200 child porn cases since 1998), is seeking estimated future damages for the treatment and expenses allowed under §2259 of almost $3.4 million—and who has already collected restitution in at least 174 child porn cases across the U.S. and received awards, according to Courthouse News, ranging from $100 to $3,543,471!
But a federal judge in Texas ruled that "Amy," now 19, was not entitled to any restitution, having found that "the government failed to prove that Paroline's possession of images depicting Amy's sexual abuse 'proximately caused the injuries' for which Amy sought restitution." The Fifth Circuit panel reversed that ruling, finding that "Amy" was entitled to $3.4 million from Paroline for the two images of her that were found in the 280 child porn images on his computer.
It is this split between the Circuits, between no restitution being awarded in some cases to $3.4 million in the Paroline case, that caused the Supreme Court to accept certiorari in this case, which will be heard sometime this Fall.