James R. Marsh was chosen from hundreds of submissions to present the law review article he wrote with Professor Paul G. Cassell, Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response.
Full Restitution for Child Pornography Victims: The Supreme Court’s Paroline Decision and the Need for a Congressional Response
How to provide restitution to victims of child pornography crimes has recently proven to be a challenge for courts across the country. The difficulty stems from the fact that child pornography is often widely disseminated to countless thousands of criminals who have a prurient interest in such materials.
While the victims of child pornography crimes often have significant financial losses from the crimes (such as the need for long term psychological counseling), it is very difficult to assign a particular fraction of a victim’s losses to any particular criminal defendant.
Last spring, the United States Supreme Court gave its answer to how to resolve this issue with its ruling in Paroline v. United States. Interpreting a restitution statute enacted by Congress, the Court concluded that in a child pornography prosecution, a restitution award from a particular defendant is only appropriate to the extent that it reflects “the defendant’s relative role in the causal process that underlies the victim’s general losses.” Exactly what this holding means is not immediately clear, and lower courts are currently struggling to interpret it.
This article, which was recently published in the Ohio State Journal of Criminal Law, questions the Court’s Paroline holding, particularly its failure to offer any real guidance on exactly what amount of restitution district court judges should award in child pornography cases. Members of Congress, too, have doubted the wisdom of the decision, introducing a bill (the Amy and Vicky Act) with strong bi-partisan sponsorship that would essentially overrule Paroline.
One year ago today, the United States Senate, in one of its first acts of the 114th Congress, passed the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2015, on a vote of 98–0.
As Senator Grassley explained, "the choice is between the convicted child pornography offender being held responsible for the full loss and the innocent victim not receiving full compensation."
Unfortunately, the Senate's bold vision for child pornography victims—led by Senators Hatch and Schumer—has all but died in the House Judiciary Committee which has failed to act for almost a year.
During that time federal courts have grown increasingly frustrated, while child victims have been denied meaningful compensation for the lifelong injuries they suffer. Child pornography criminals, who have repeatedly expressed fear and dismay about paying restitution, are newly emboldened in attacking every aspect of the current restitution law.
Ninth Circuit Court of Appeals – Child Pornography Restitution Mess “Cries Out for a Congressional Solution”
With these words, the influential Ninth Circuit Court of Appeals became the most recent and highest court to declare that Congress should fix the law governing restitution for child pornography victims.
The AVA, which passed the Senate by a resounding 98-0, addresses all of the Ninth Circuit's concerns. It specifically sets "the amount to which a victim is entitled" in restitution. It allows victims to recover for their "lifetime losses" caused by child pornography—from grooming to production to distribution and possession. It adopts a modern "aggregate causation standard" instead of the outdated and ill-defined "proximate cause standard" which even the Ninth Circuit acknowledged "hides (or encompasses) interpretive problems of its own."
The House of Representatives Judiciary Committee, led by Chairman Bob Goodlatte [R-VA] and Jim Sensenbrenner [R-WI], inexplicably continues to place a hold on the AVA.
Victims of child pornography in the Ninth Circuit and beyond deserve a law which works. Congress needs to move decisively and pass the AVA!
Academics Both Left and Right Endorse Congressional Action to Fix the Supreme Court’s Decision in Paroline
Perhaps most surprising of all is that the AVA has near universal support (except from child pornography defendants) from both Republicans and Democrats, and liberal and conservative academics.
It's time for the House to get moving to finally pass the AVA! With 38 Republican co-sponsors and 35 Democrat co-sponsors, the AVA completely lacks "ideological polarization." And maybe that's the problem. But with an election approaching in just 12 months "it could look good for all of Congress to get tougher than the Court was willing to be on child pornographers—particularly when the Court’s ruling means that many victims are undercompensated."
Contact House Judiciary Chair Bob Goodlatte [R-VA] and ask him to vote S.295/H.R. 595 out of the House Judiciary Committee for a swift vote by the full House.
U.K. Children’s Charities’ Coalition on Internet Safety Recommends Restitution for Child Pornography Victims
House Judiciary Crime Subcommittee Hearing on the AVA: Child Exploitation Restitution Following the Paroline v. United States Decision
The House Judiciary Subcommittee on Crime, Terrorism and Homeland Security will hold a hearing on Child Exploitation Restitution Following the Paroline Decision on Thursday, March 19, 2015 at 10:00 a.m. in Room 2141 of the Rayburn House Office Building.
Amy's advocate in the United States Supreme Court, professor and formal federal judge Paul G. Cassell, will testify at the hearing.
Everyone is invited to attend this public hearing as the House begins its consideration of the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2015, H.R. 595.
Victims of child pornography and child exploitation, including child trafficking, should attend the hearing in person or watch online at C-SPAN.org.