S. 295 / H.R. 595 Explained Section by Section

Click on the headings for the bill text

Section 1. Short Title

This Act is named after “Amy” and “Vicky” who are victims in two of the most widely-distributed child pornography series in the world. In Paroline v. United States, which reviewed Amy’s case, the Supreme Court found that Section 2259 is not well-suited for cases involving child pornography possession and distribution and should be amended to allow victims like Amy and Vicky to recover mandatory restitution. This bill addresses the Supreme Court’s concerns.

Section 2. Findings

The Congressional findings are in direct response to the Supreme Court’s concerns in Paroline v. United States. Many of these findings are taken directly from the Court’s decision and emphasize that child pornography crimes, which now occur primarily on the Internet, are unique crimes with a unique and devastating impact on victims. The findings stress that victims suffer due to the “aggregate causation” of multiple actors who independently commit intentional crimes that combine to produce an indivisible injury. Congress also finds that victims should not be limited to receiving restitution from defendants only for losses caused by each defendant’s own offense of conviction. A less restrictive aggregate causation standard, combined with appropriate constitutional limits and protections for defendants, will ensure that child pornography victims receive the full and timely mandatory restitution which Congress requires.

Section 3. Mandatory Restitution

Ever since the original version of this statute was enacted in 1994 as part of the Violence Against Women Act, Congress has required that restitution be mandatory for violations of Chapter 110 which encompasses child exploitation crimes including the production, distribution, and possession of child pornography. The main challenge courts have faced is determining how the “full amount of the victim’s losses” is imposed because the losses from child pornography crimes are indivisible and an uncertain number of persons contribute to these losses. The Supreme Court proposed joint and several liability with contribution as one possible solution to this problem. The Court also suggested minimum statutory restitution as another possible solution. This bill adopts both approaches.

Subsection (3)(A)

This subsection seeks to restore Congressional intent that the “full amount of the victim’s losses” includes “lifetime” medical services relating to physical, psychiatric, or psychological care; “lifetime” physical and occupational therapy or rehabilitation; and “lifetime” lost income. These enumerated losses are intended to be “lifetime” aggregate losses, while necessary transportation, temporary housing, and child care expenses, along with attorneys’ fees, as well as other costs incurred, are specific to the individual defendant or case.

Subsection (3)(B)

This subsection moves the final catchall category of “any other losses” into a separate subsection to make it clear that only this category of losses is subject to a proximate cause standard. The inclusion of these “any other losses” in the enumerated losses created a variety of problems for courts which read this subsection’s proximate cause requirement into the other enumerated losses. This required a victim to show how each individual defendant proximately caused her losses which made the statute unworkable and inadequate for victims of non-production child pornography offenses.

Subsection (3)(C)

This subsection incorporates the losses suffered by a victim from any “sexual act” or “sexual contact,” as defined in Section 2246, in preparation for or during the production of child pornography depicting the victim involved in the offense. This new subsection recognizes that the losses from child pornography are indivisible and include not only violations under Chapter 110, but the sexual grooming that occurs in preparation for or during the production of child pornography. Although this sexual abuse is not captured as child pornography, it is attendant and directly related to the production of child pornography and is an indivisible part of the full amount of the victim’s losses.

Subsection (c)

This subsection, entitled Determining Restitution, is added to help guide courts on how to calculate mandatory restitution.

Subsection (c)(1)

If a victim was harmed by one and only one defendant, a court must determine the full amount of the victim’s losses caused by that defendant and enter an order of restitution for not less than the full amount of the victim’s losses. This will ensure that victims receive full restitution in these cases. Unlike the previous version of Section 2259, the new law is specifically limited to the child pornography offenses in Chapter 110 which include section 2251, 2251A, 2252, 2252A and 2260. The miscellaneous seldom-used non-child pornography sections in Chapter 110 are omitted. Restitution, if any, under those sections can be obtained under the MVRA or VWPA. The Victim and Witness Protection Act (VWPA) is 18 USC 3663 and applies to any defendant convicted of an offense under Title 18. The Mandatory Victim Restitution Act (MVRA) is 18 USC 3663A and applies to any, broadly speaking, “crime of violence.” Restitution under the MVRA is mandatory while restitution under the VWPA is not.

Subsection (c)(2)

If a victim was harmed by more than one defendant, the court must consider the aggregate harm to the victim by including the harm inflicted on the victim by more than one person, regardless of whether the persons have been charged, prosecuted, or convicted in any Federal or state court of competent jurisdiction within the United States. The court must include not only the full amount of the victim’s losses caused by all such persons, but also the full amount of the victim’s losses reasonably expected to be caused by such persons.

Once a court has made this determination, it has two options: it can simply enter an order of restitution against the defendant in favor of the victim for the full amount of the victim’s losses under Subsection (c)(2)(A), or it can enter an order of restitution in an amount that is not more than the “full amount of the victim’s losses, and not less than a statutory minimum amount under Subsection (c)(2)(B).” In no case will a victim receive more than the full amount of their losses.

The statutory minimum amounts are: Subsection (c)(2)(B)(i) $250,000 for any statutory listed offense or offenses involving the production of child pornography; Subsection (c)(2)(B)(ii) $150,000 for any statutory listed offense or offenses involving distribution or sale of child pornography; and Subsection (c)(2)(B)(iii) $25,000 for any statutory listed offense or offenses involving possession of child pornography. Each statutory minimum amount references the specific Chapter 110 offenses to clarify the scope of each statutory minimum amount. Each statutory minimum amount also applies to an “offense” or multiple “offenses” which means that victims cannot ‘stack’ statutory minimum amounts against any single defendant; victims are entitled to one statutory minimum award in each case. In no case is the statutory minimum amount greater than the fine attached to these offenses. This should mitigate any Eighth Amendment concerns about excessive punishment.

Subsection (c)(3)

This section clarifies that no order of restitution may exceed the full amount of a victim’s losses. This protects defendants from paying for losses which are beyond the actual losses suffered from a victim. It also allows judges to award victims restitution in an amount which is greater than the statutory minimum amounts, but less than the full amount of a victim’s losses.

Subsection (c)(4)

In cases where a restitution order is entered for the full amount of a victim’s losses under paragraph (2)(A), each defendant against whom such an order is entered shall be jointly and severally liable to the victim with all other defendants against whom such an order of restitution is entered. This makes defendants jointly and severally liable, but only in cases where each defendant is responsible for the full amount of a victim’s losses. Defendants for whom a statutory minimum amount is imposed are not subject to joint and several liability. This provision is in response to the Supreme Court’s concern that victims be fully compensated for the full amount of their losses in a timely and complete manner, while holding defendants mutually responsible for the full amount of a victim’s losses.

Subsection (c)(5)

A right to contribution by and between defendants is essential to maintain the constitutionality of a joint and several award in the full amount of a victim’s losses. Each defendant who is ordered to pay restitution in the full amount of the victim’s losses under paragraph (2)(A) and has in fact made such a payment which is equal to or exceeding the statutory minimum amount, may recover contribution from any defendant who is also ordered to pay restitution under paragraph (2)(A). Contribution claims shall be brought in accordance with the Federal Rules of Civil Procedure. Payments among liable parties may be allocated using such equitable factors as the court determines are appropriate so long as no payments to victims are reduced or delayed. This subsection imposes a 5 year statute of limitations starting on the date on which the defendant seeking contribution was ordered to pay restitution under this section.

Subsection (4)

This subsection is in response to the Supreme Court’s concern with determining the full amount of a victim’s losses from multiple defendants. This subsection makes it clear that a victim is not only a person who is harmed by the commission of an offense under Chapter 110, but also a person who is harmed by a series of offenses committed by the defendant and other persons causing aggregated losses.

Subsection (5)

This subsection requires the Attorney General to report to Congress not later than 1 year after the date of enactment on the progress, if any, of the Department of Justice in obtaining restitution for victims of any offense under Chapter 110.


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