After the Supreme Court – Congress Must Now Act
Law and Order SVU recently aired an episode based on our client Amy’s case. It told the story of a prosecutor using a restitution statute to obtain multi-million dollar compensation for a victim of child pornography from a wealthy man who had been caught violating child pornography laws by possessing and viewing her child sex abuse images.
Because the television restitution statute imposed significant liability on television perpetrators, the television defendant decided, not surprisingly, to avoid a lengthy prison term by paying full restitution to the television victim. The 50 minutes ended as happily and fairly as it could—providing substantial compensation to the television victim so that she could rebuild her life, while imposing significant liability on the wrongdoing television defendant and giving him the right to seek contribution from others who possessed the victim’s images.
Life does not, however, always imitate Art.
Yesterday, the Supreme Court acknowledged that Amy and other victims suffer very real and grave losses from the possession of their child sex abuse images by individuals such as the defendant in that case, Doyle Randall Paroline. Even if Paroline downloaded Amy’s child sex abuse images in the middle of the night, in the privacy of his own home, with no one else watching, Amy was still seriously injured.
The Supreme Court also ruled that all possessors of child pornography must pay restitution to their victims. And the Supreme Court ruled that the restitution law should (and, if properly written, may) require defendants to pay significant sums in restitution.
However, the Supreme Court ultimately decided that unlike the restitution statute employed by the prosecutor in the Law and Order episode, the federal restitution statute Amy invoked does not provide for full restitution, despite its express language requiring “full restitution.” Paroline v. United States.
The majority held that the criminal defendant must pay restitution to the victim only in an amount that comports “with the defendant’s relative role in the causal process that underlies the victim’s general losses.” Here, because defendant Paroline is one of thousands of individuals who possessed or will possess Amy’s child sex abuse images, his proportionate role is de minimus and her ultimate restitution is likely to be very little.
Our principal concern with the ruling—and what Congress must fix—is that it limits Amy to piecemeal recovery against each perpetrator, thus requiring her to spend years, perhaps decades, filing hundreds if not thousands of restitution claims without any real prospect of ever obtaining full restitution for her losses.
We believe—as in the Law and Order episode—that the burden should be imposed on the wrongdoer Paroline, not the innocent victim Amy, to chase down contribution from the thousands of others who possessed her images. We also believe that Amy should not be required to continue to repeatedly relive her pain and reopen her wounds with never-ending litigation concerning her sex abuse.
The decision closes one chapter in our ongoing effort to help victims of child sex abuse receive some measure of justice. We move next to Congress where we will urge an amendment to Section 2259 of the federal restitution statute to address the justices’ concerns, so that victims like Amy can obtain real, tangible and meaningful relief. We expect in the future to ask you, our clients and friends, to help us in these efforts by writing or calling Congress.
Here is a Summary of the Court’s Decision
Facts: Amy’s uncle repeatedly raped her as a young girl and photographed the rape to produce child pornography. When Amy was 17, she learned that images of her abuse were being trafficked on the Internet, in effect repeating the original wrongs, for she knew that her humiliation and hurt would be renewed well into the future as thousands of additional wrongdoers witnessed those crimes.
Defendant Paroline was convicted of possessing images of child pornography, including several of Amy. Amy sought $3.5 million in restitution—the full amount of her losses—at Paroline’s sentencing. The trial court denied restitution to Amy. The Court of Appeals ultimately reversed and granted her full restitution from Paroline.
Issue: The Supreme Court took the case to determine whether and in what amount under the federal restitution statute a victim of child sex abuse such as Amy may recover from those who possess images of her abuse.
Majority by Kennedy (with Ginsburg, Breyer, Alito, and Kagan): A five justice majority, written by Justice Kennedy, held that Amy is entitled to some restitution from defendant Paroline, who possessed images of her being raped as a child, but left unclear the amount. It returned the case to the trial court with instruction that the amount comport “with the defendant’s relative role in the causal process that underlies the victim’s general losses.”
The majority further ruled that restitution amount in this case would “not be severe…given the nature of the casual connection between the conduct of the possessor and the entirety of the victim’s general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount.”
Dissent by Roberts (with Scalia and Thomas): A three-justice dissent by Chief Justice Roberts opined that the law as currently written accords Amy no relief. It reasoned that under the restitution statute Congress passed, a victim must be able to pinpoint with specificity what amount of her loss is attributable to any particular defendant, and because Amy cannot disaggregate or tease out how much Paroline (one of thousands of possessors) contributed to her aggregate losses, she cannot show actual causation. This dissent suggested that Congress must speak with greater clarity for a court to order a possessor of child pornography to pay restitution to the victim.
Dissent by Sotomayor: Justice Sotomayor in dissent adopted Amy’s position. She opined that Paroline was involved in criminal activity which, along with many others, contributed to Amy’s losses in the aggregate. And, although the injuries caused by child pornography possessors are impossible to apportion in any practical sense, that is not unusual in the law. In such cases, the law imposes liability for all of the jointly caused loss on each participant under the doctrine of joint and several liability. Here, Paroline was one of thousands of possessors and is jointly and severally liable for the aggregate harm caused by all possessors. Only such a reading of the statute comports with the statute’s dictate that victims recover the “full amount of their losses.”