Amy and Vicky Act Child Pornography Restitution Improvement Act of 2015 Tue, 25 Apr 2017 03:40:42 +0000 en-US hourly 1 68429747 Federal Sex Offense Arrests and Sentences Tue, 25 Apr 2017 03:40:42 +0000 According to the Bureau of Justice Statistics, sex offenses were the fastest growing federal arrest offense from 2010 to 2014.

  • Federal law enforcement arrested 3,447 sex offense suspects in 2014, a 4% increase from 2010.
  • The FBI (39%) made the most sex offense arrests in 2014, followed by the USMS (29%) and ICE (20%).
  • The number of suspects arrested for a sex offense doubled from 1994 to 1998, doubled again from 1998 to 2004, and doubled again from 2004 to 2013.
  • From 2010 to 2014, sex offenses made up 2% (16,842) of the total number of federal arrests (882,713).
  • In 2014, there were a total of 79,910 arrests for sex offenses comprised of 76,463 state and local law enforcement arrests and 3,447 federal arrests.
  • In 2014, arrests for federal sex offenses made up just 4% of federal, state, and local sex offense arrests.
  • Seven districts had 80 or more federal sex offense arrests in 2014. Florida Middle (131), Texas Western (120), and Arizona (100) had 100 or more sex offense arrests.
  • The busiest court cities for federal sex offense arrests in 2014 were San Diego, California (62); Phoenix, Arizona (62); Portland, Oregon (57); and Springfield, Illinois (54).
  • Median prison sentences for defendants convicted of sex offenses had the greatest increase from 1994 to 2014.
  • The median prison sentence imposed on defendants convicted for a felony sex offense increased an annual average of 5%, from 36 months in 1994 to 90 months in 2014.
  • In 2014, sex offense convictions (96%) were the most likely to receive a prison sentence, followed by violent (93%), weapons (92%), and drug (89%) offense convictions.
Federal Sex Offense Arrests in 2014
Groundbreaking New Tool to Remove Online Child Sexual Abuse Material Mon, 23 Jan 2017 18:33:14 +0000 Even as efforts to fight online child sex abuse material and compensate victims remains stalled in the United States House of Representatives, efforts abroad continue unabated.

Project Arachnid

Last week, the Canadian Centre for Child Protection introduced a new tool to combat the growing proliferation of child sexual abuse material on the Internet. Dubbed ‘Project Arachnid’, this automated crawler will help reduce the online availability of child sexual abuse material and break the cycle of abuse.

Project Arachnid detects images and videos of child sexual abuse material based on confirmed digital fingerprints of illegal content. Once content has been identified, a notice is sent to the hosting provider to request its immediate removal. This innovative tool detects content at a speed exponentially faster than current methods. In a very short period of only six weeks, Project Arachnid:

  • Processed over 230 million web pages
  • Detected over 5.1 million unique web pages hosting child sexual abuse material
  • Detected over 40,000 unique images of child sexual abuse material

“These numbers serve as a reality check about the serious problem of child sexual abuse,” said Lianna McDonald, Executive Director of the Canadian Centre. “We can no longer deny what is right in front of us. We believe that knowledge is the best antidote to societal denial that these types of things don’t happen to children.”

The Canadian Centre created an animated video to showcase the power of Project Arachnid and the urgent need to break the cycle of abuse experienced by survivors of this heinous crime.

Toronto Star – New search tool digs into darkest corners of the Internet

Director of says making content more difficult to find is in the best interests of child abuse victims

A new Canadian-made Internet search tool that detects child sexual abuse images online has logged more than five million unique web pages with 40,000 images in the past six weeks alone, the Toronto Star has learned.

Project Arachnid, created by the Winnipeg-based Canadian Centre for Child Protection, is searching 150 web links a second for child abuse imagery in an effort to have it removed from public view, a form of lingering abuse for victims.

When the search tool identifies illegal material, the centre sends notices to the site host requesting its removal.

Read the complete story at

C3P Project Arachnid

International Survivors’ Survey

The need for Project Arachnid is based on witnessing the growing proliferation of child sexual abuse material, and was further validated by the Canadian Centre’s International Survivors’ Survey. This survey was developed to better understand the unique challenges faced by survivors whose abuse as a child was recorded and, in many instances, distributed online. To date, 128 survivors from around the world have contributed valuable information about their experiences. Some of the preliminary results include:

  • 73% of the survivors worry about being recognized by someone because of the recording of their child sexual abuse
  • Nearly 60% of the survivors indicated that the single/primary abuser was a parent
  • 56% of the survivors indicated that the abuse began before between the ages of 0-four, and of those over 60% indicated that the abuse continued into adulthood
  • At least 66 surveys (52%) involved organized sexual abuse (abuse that involves children being subjected to sexual abuse by multiple offenders)
  • 67% of the survivors were threatened with physical harm and of those 43% were told they would die or be killed
  • 82% of the survivors anticipate needing ongoing/future therapy

“Given what we heard from survivors, we believe that one of the most important outcomes of Project Arachnid will be the psychological relief offered to survivors who have had no control over the ongoing sharing of their abuse,” said McDonald. “Project Arachnid is using technology to counter the years of misuse by offenders and to help end the cycle of abuse.”

The survey continues to be available, and other survivors are encouraged to participate in this important initiative. The goal is to collaborate with the international working group established by the Canadian Centre to assist in the development of global recommendations related to this issue.

As stated by one survivor who, with her siblings, was a victim of this crime; “Child pornography isn’t easily understood or acknowledged. From our young childhood till adulthood we have been exploited every day. Every. Day. Against our will. At times we have felt helpless, hopeless and have lived in fear. We want to tell others who are also victims you no longer need to live in fear or wear guilt and shame every day. There is hope. So many great people are working hard every day to protect us.”

Toronto Star – Chilling evidence of organized child sex abuse revealed in survey

Odette and her sisters Rosemary and Lucy are among the victims of what a new survey by the Canadian Centre for Child Protection suggests is a widespread tragedy — child exploitation rings led by parents of the abused

Responses from 128 child abuse survivors across North America and Europe found 52 per cent were victimized by a network of abusers, overwhelmingly involving their own parents, who shared images and even their children themselves with others. In most cases — nearly 70 per cent — images were then shared with millions more strangers online.

Most survivors are haunted by the online life of the imagery. More than 70 per cent surveyed said that the imagery never ends and makes them feel vulnerable to being recognized. About 90 per cent said their abuse affected both their education and professional success, in part because they know their victimization continues online.

About 30 per cent said they had been recognized by someone who saw their images online. Of those, 64 per cent said they were “targeted” — either blackmailed or propositioned.

Read the complete story at

C3P PublicCSA ImageryReportSummary


Announcing Project Arachnid

James R. Marsh Chosen to Present on the AVA at International Children’s Rights Conference Fri, 20 May 2016 15:02:34 +0000 Children’s and Young People’s Rights in the Digital Age

Concerns that children’s rights are being newly infringed rather than enhanced in the digital age are often raised by researchers, child rights’ advocates, and internet governance experts. Children’s needs and experiences in the digital age are often neglected in high-level debates about global internet provision and governance and children’s rights are treated as a minority interest and seen as demanding exceptional treatment from adult society. Further, current debates frequently emphasise the risks children potentially face online and underline their right to protection but much less debate focuses on children’s provision and participation rights and the opportunities children may encounter online.

With over 40 papers from 22 countries worldwide, the conference will foster an international debate on key issues related to children’s and young people’s rights in the digital age, including: child and youth participation rights; online opportunities and risks; inequalities and digital exclusion; policy and multi-stakeholder governance; the role of peers and peer culture; participatory research; e-learning, health promotion and creativity in the digital environment; cross-generational dynamics of online engagement.

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.


The pre-conference is associated with the project Global Kids Online: Children’s rights in the digital age.

To register for this pre-conference, please CLICK HERE. Early-bird registration until 20 May.

Download the call for proposals (PDF)

Location: London School of Economics and Political Science

Date and time: 26-27 July, 2016

Convenors: Sonia Livingstone, Amanda Third and Mariya Stoilova

Note: The pre-conference is associated with the project Global Kids Online: Children’s rights in the digital age.

The pre-conference will begin at midday on 26 July and close at midday on 27 July to enable delegates to make the journey to Leicester for the opening of IAMCR 2016 (approximately one-hour train journey).

Full Restitution for Child Pornography Victims: The Supreme Court’s Paroline Decision and the Need for a Congressional Response Tue, 05 Apr 2016 03:07:52 +0000 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.

Congress has proposed certain set amounts of restitution for particular child pornography crimes. This approach seems like a good one for providing clarity to district court judges as well as assuring full restitution for child pornography victims. And, as of the drafting of this article, Congress seems likely to adopt this approach, as the Amy and Vicky Act passed the Senate by a resounding 98-0 vote.

Part I of this article discusses the need of child pornography victims for restitution, using the story of one woman (“Amy”) as an illustration.

Part II then turns to the legal regime surrounding restitution for such victims, explaining why the current child pornography restitution statute—properly understood—requires that each defendant pay full restitution.

Part III then examines the Supreme Court’s Paroline decision rejecting full restitution. Contrary to the views of the Court’s majority, the statute is not best interpreted as limiting a defendant’s responsibility for restitution to his “relative role in the causal process” of contributing to a victim’s losses. To the contrary, this interpretation thwarts Congress’ clear aim of providing generous restitution to child pornography victims.

Finally, Part IV discusses the Amy and Vicky Act, which will simplify the restitution process. By establishing set amounts of restitution that must be awarded in child pornography cases, the legislation will return rationality to the restitution system, reduce the burden on trial courts, and (most importantly) assure victims of child pornography crimes that they will receive the full restitution that they desperately need. Congress should enact, and the President should sign, such legislation rapidly.

Ohio State Journal of Criminal Law

Volume 13 Number 1 Fall 2015

Child Pornography Victims Ignored and Forgotten in the Halls of Congress Fri, 12 Feb 2016 00:31:22 +0000 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.

The painful outcome for children who have been repeatedly raped and sexually exploited is unpaid bills for therapy and few resources to help them live with dignity.

Without criminal restitution, many victims must rely on taxpayer-funded public assistance while wealthy defendants serve a few years in a minimum security taxpayer-funded prison and return to a life of relative comfort and privilege.

Sadly, young victims of some of the most heinous crimes are ignored and forgotten while the House Judiciary Committee sits idly by, seemingly immune to the despair and injustice unfolding daily in the federal courts.

Chief Justice Robert’s warning in the disastrous Supreme Court decision in Paroline—which began this current round of suffering—has been repeated over and over again by the lower courts:

Unfortunately, the restitution statute that Congress wrote for child pornography offenses makes it impossible to award that relief to Amy in this case.…Congress set up a restitution system sure to fail in cases like this one.…[I]t would be a mistake…to lead readers to conclude 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.

Paroline v. United States (2014).

Despite the almost unanimous consensus in the Senate, and 74 bi-partisan co-sponsors in the House led by Amy’s Congressman Matt Cartwright, Congress has long had a chance to “fix it” and failed.

Judges across the country are equally frustrated:

“As an initial matter, the Court notes that of the handful of district courts that have grappled with the matter of restitution in child pornography cases post-Paroline, several have expressed their concern with the lack of precise guidance from Congress and the Supreme Court in deciding restitution awards in these circumstances…. Having now grappled with the same issues, this Court finds that such concerns are well-founded.”

United States v. Miner (Northern District of New York)

“It appears to this Court that some of the factors the Supreme Court suggests be considered are at best difficult, and at worst impossible to calculate in this case as in most similar cases. The Court is not entirely comfortable making such calculations in this or similar situations but believes it compelled to do so by the U.S. Supreme Court opinion in Paroline.”

United States v. Crisostomi (Rhode Island)

Paroline suggests that district courts, ‘as a starting point, determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images’…[T]he Court believes…it is simply not possible for the Government to show, ‘as a starting point,’ the amount of losses caused by the ‘continuing trafficking’ in Cindy and Vicky’s images. This theoretical starting point will simply not exist in many cases.”

United States v. Reynolds (Eastern District of Michigan)

“Some courts have difficulty determining a starting point for the losses caused by the “continuing trafficking” of images.…Paroline is of limited use because no logical starting point can be determined.”

United States v. Austin (Nevada)

“While the Paroline factors offer some guidance, the practical application of those factors is extraordinarily difficult.”

United States v. Ayer (Nevada)

“It is extremely difficult to quantify the loss sustained by these minor victims.”

United States v. Miller (Eastern District of Michigan)

“These tools provided by Paroline, while seemingly useful in a theoretical sense, have proven to have very difficult, and very limited, practical application.”

United States v. Campbell-Zorn (Montana)

“Though commentators may quarrel over the astuteness of the Supreme Court’s professed confidence in the skill of the district courts to divine a true course through this thicket…the task seems akin to piloting a small craft to safe harbor in a Nor’easter.…. The task of charting passage through these unknown waters is overwhelming.”

United States v. DiLeo (Eastern District of New York)

“While Congress could and should have made determination of the amount to which a victim is entitled a simple matter, it regrettably did not.”

United States v. Galan (Ninth Circuit Court of Appeals)

“Congress is currently considering a enacting a law that would provide for a graduated system of restitution for victims of child pornography beginning with a minimum amount of $25,000 for possession. If enacted, this law would eliminate much of the present variability in victim restitution awards.”

United States v. Schultz (Massachusetts)

“The current statutory process for restitution does not fully compensate losses suffered by child pornography victims and may, in fact, dissuade victims from seeking restitution; the end result is hardly worth yet another reminder of their continued exploitation. The court cannot remedy this problem. Rather, it is up to Congress to develop a system to truly compensate child pornography victims for the losses they continue to suffer.”

United States v. Galan (Oregon)

“We do agree that this area, in which Congress has adopted a scheme that at least approaches the limits of fair adjudication, despite attempts by the courts to avoid caprice, cries out for a congressional solution.”

United States v. Galan (Ninth Circuit Court of Appeals)

Almost two years have passed since Justice Sotomayor, writing in dissent in Paroline, presciently observed that “[i]n the end, of course, it is Congress that will have the final say.” Unfortunately Congress has said nothing.

While countries like the United Kingdom press ahead with the reforms envisioned by the Amy and Vicky Act, the United States Congress remains stuck in neutral.

Political gamesmanship needs to come to an end. It’s time for the House Judiciary Committee to present the Amy and Vicky Act to the full House for a vote on the merits.

The House needs to heed the endorsements of victims’ rights and law enforcement groups like:

  • National Center for Victims of Crime
  • National Crime Victim Law Institute
  • National Organization for Victim Assistance
  • National Task force to End Sexual and Domestic Violence Against Women
  • Enough is Enough
  • Building Empowerment by Stopping Trafficking
  • Rape Abuse and Incest National Network
  • National Center for Missing and Exploited Children
  • Forty Four State Attorney Generals

and pass S.295 / H.R.595, the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2015.

As Senator Hatch explained just one year ago, “The current statute maximizes a victim’s burden and minimizes her restitution. This bill minimizes a victim’s burden and maximizes her restitution.”

You can help by contacting your member of Congress today!

Also posted at HuffPost Crime
U.K. Coalition Demands Action from the British Government to Pass AVA-Inspired Law Mon, 18 Jan 2016 18:58:36 +0000 Viewers of child sex abuse could lose homes

Children’s charities urge Michael Gove to look at US–style laws forcing internet paedophiles to pay damages

People who view images of child sex abuse could lose their homes or pensions under new US-style laws being proposed by a powerful coalition of children’s charities which is demanding action from the British government.

The Children’s Charities’ Coalition on Internet Safety—which includes the likes of the NSPCC, Barnardo’s, Action for Children and the Children’s Society—will on Monday publish an open letter to Michael Gove, the justice secretary, urging him to study legislation being drafted in America that would force internet paedophiles to make financial reparations for their actions.

The Amy and Vicky Act, which has been passed by the Senate and is now before the House of Representatives, seeks to secure damages for victims of online paedophiles who possess indecent images of them.

The act would force offenders to pay damages that would help their victims to pay for medical services, therapy, lost income and legal fees. The act was drawn up following a supreme court case in which a victim, known only as “Amy”, sought $3.4m in damages from a man who had been convicted of possessing images of her. Her claim was unsuccessful, but the court backed the notion that she should be entitled to some level of damages.

Legal experts who back a law change say it recognises that the viewing and sharing of child abuse images exacerbates the harm inflicted on victims by creating a potentially permanent record of the abuse.

John Carr, the coalition’s secretary, said a new law was urgently needed. Estimates suggest that paedophiles in the UK alone could be holding between 150 million and 360 million images of child abuse. “Conventional law enforcement methods are not working in this area, so we have to look for new deterrents,” Carr said. “I think this could be a very effective one. If guys know they could lose their house or their pension, they’ll think twice.”

Carr said there was a precedent for such forms of reparation. “Under the Proceeds of Crime Act, villains are made to forfeit their ill-gotten gains. By analogy, here is a mechanism to force a different kind of villain to pay for what they have done to an innocent child.”

Read the full article at theguardian online: Viewers of child sex abuse could lose homes.

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Ninth Circuit Court of Appeals – Child Pornography Restitution Mess “Cries Out for a Congressional Solution” Fri, 06 Nov 2015 23:34:59 +0000 “While Congress could and should have made determination of the amount to which a victim is entitled a simple matter, it regrettably did not.”

With these words, the influential Ninth Circuit Court of Appeals—which decides the law in fifteen federal judicial districts covering nine states which contain over 61 million people (20% of the U.S. population)—became the most recent and highest court to declare that Congress should fix the law governing restitution for child pornography victims.

Relying on the Supreme Court’s controversial decision in Paroline, the Court decided that child pornography victims in the Ninth Circuit must now “disaggregate” their losses caused by the production of child sex abuse images and videos from the losses caused by the distribution and possession of those images and videos.

The decision in United States v. Cecilio Galan, was written by Bush appointee Judge Ferdinand F. Fernandez (who was originally appointed to the bench in 1985 by President Reagan) and joined by judges A. Wallace Tashima (appointed by Clinton) and Carlos T. Bea (appointed by George H. W. Bush). The lower court decision was written by Chief Judge Anne L. Aiken of the United States District Court for the District of Oregon (appointed by Clinton).

In what will certainly become yet another cruel exercise in futility for victims of childhood sexual abuse and exploitation, the Court—which “expressed no opinion about what portion of a victim’s ongoing loss should be attributable to an original abuser”—created yet another set of ill-defined and next to impossible factors to govern this new requirement.

In order to obtain restitution, child pornography victims in the Ninth Circuit will now have to prove—in addition to the confounding Paroline factors—”many [additional] factors” such as

  • the egregiousness of the original [sex] abuse;
  • how a victim can (or does) cope with that kind of [rape and sexual abuse] abuse when distribution of images does not follow;
  • and the particular victim’s own reactions to the various traumas to which the victim has been subjected;

As a result, federal district courts will now have to evaluate each individual sex act perpetrated upon children to determine the level of “egregiousness” and how well the child “coped” with the abuse and other “various traumas.” Courts will need to formulate a barbaric hierarchy of victimization in trying to decide, for example, whether a six month old forced to suck on an adult man’s penis is “more egregious” than an eight year old being bound and anally penetrated. How well can that six month old infant “cope” with such abuse compared with the eight year old girl? And how many other terrible traumas might have occurred to mute or blunt or increase the trauma caused by the original childhood sexual abuse? “And how, exactly little girl and little boy, did you react to those traumas?”

The Ninth Circuit’s draconian decision hearkens back to something from Dickens, or the Old Testament, or the current fear of Sharia law. It is simply incompatible with current understanding of childhood sexual abuse, criminal responsibility, and victim’s rights.

As the Supreme Court declared in the landmark New York v. Ferber case over 30 years ago, “[t]he distribution of photographs and films depicting sexual activity by juveniles [exacerbates] the harm to the child…by their circulation.” The Ninth Circuit flips this longstanding maxim on its head by requiring courts to mitigate the harms from child pornography by discounting the childhood sexual abuse which was essential to the creation of the child pornography in the first place!

The Ninth Circuit’s “disaggregation” theory is not only bad law, it’s bad science since apportioning harm in what is essentially one unbroken chain of perverted conduct, is next to impossible. Our current understanding of psychology and trauma simply do not have the tools to parse each individual act into a quantifiable and definitive harm.

As the American Professional Society on the Abuse of Children explained last year, “for the victims [of child pornography], the sexual abuse of the child, the memorialization of that abuse which becomes child pornography, and its subsequent distribution and viewing become psychologically intertwined and each compound the harm suffered by the child-victim.”

Fortunately, the Ninth Circuit did get one thing right: “this area, in which Congress has adopted a scheme that at least approaches the limits of fair adjudication despite attempts by the courts to avoid caprice, cries out for a congressional solution.”

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!

Also posted at HuffPost Crime



United States v. Cecilio Galan, No. 14-30145 (Ninth Circuit 11-04-2015)

Academics Both Left and Right Endorse Congressional Action to Fix the Supreme Court’s Decision in Paroline Wed, 28 Oct 2015 03:47:54 +0000 Seldom has an issue—any issue—garnered such bi-partisan support as the Amy and Vicky Act which passed the Senate in February 98–0. Unfortunately the bill remains stalled in the House Judiciary Committee despite a March hearing and bi-partisan vows of quick Congressional action.

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.

Consider this piece from one of the 100 most influential lawyers in America, Professor Richard L. Hasen, at the University of California Irvine School of Law:

Today the Supreme Court decided a statutory interpretation case, Paroline v. U.S. with no easy answer, an unusual cross-ideological divide among the Justices, an interpretation offered by the majority which Adam Liptak rightfully describes as “a new and vague legal standard,” and a Chief Justice in his dissenting opinion begging Congress to fix the problem (“The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it.”). Even though Congress rarely overrides [the Supreme Court] these days, I predict an override in this case, and probably relatively quickly….

But thinking about this from the point of view of Legislation, this seems the ideal case for a Congressional override. As I’ve noted in a recent law review article, Congress now rarely overrides the Court, and when it does, there tend to be partisan overrides (as when Republicans overrode the Supreme Court in cutting back habeas for detainees in Hamdan or when Democrats overrode the Supreme Court in allowing more employment remedies in Ledbetter). I attribute the decline of bipartisan overrides to increasing political polarization in Congress….

But even in an era of intense partisanship, as we are in right now, there is room sometimes for biparisanship, and this looks like the perfect opportunity for two reasons. First, everyone hates child pornographers and wants to look tough on crime. Unless Congress is satisfied with the vague standard of the majority, 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….

Second, though related to the first point, taking a stand in favor of fixing the statute won’t be seen as going up against the Supreme Court. If all the conservatives were on one side and all the liberals on the other in a 5–4 decision, then an override of a Supreme Court statutory case looks like an attack on one wing of the Court. Here, you have a case with a cross-ideological majority throwing up its hands as to an administrable rule, and three of four dissenters asking Congress to step in.

In an era where Congress can do so little thanks to ideological polarization, a new Amy Act looks to be a no-brainer.

Similarly, this piece in The Federalist Society’s journal Engage, calls on Congress to fix the statute that three conservative justices in Paroline found “impossible:”

In the end, Congress will have to fix the statute it wrote. Well intentioned guidance by the Supreme Court is simply no substitute for the hard work of legislating. And in the meantime, busy trial courts will work with what they have, and do their best to dispense justice under difficult circumstances, and in often heartbreaking cases. Congress, however, appears to believe that Amy deserves better.

Finally, Professor Marci Hamilton, who clerked for Supreme Court Justice Sandra Day O’Connor, best sums up the need for Congressional action in the wake of the Paroline decision:

This is a hard case, in part because we are still not very good at dealing with the evils of the Internet. As Justice Kennedy’s majority opinion and Justice Sotomayor’s dissent agreed, it just cannot be that a victim should have to prove that she knew the identity of the posessors and traders in her images when the distribution network is the Internet. That is an impossible task. And, without question, she was harmed by Paroline, even if she did not know about him.

But it is even more of a hard case, because Congress’s language is not clear, and the system it laid out does not comport with anything we have seen before. There is a simple two-part fix, if you parse Justice Kennedy’s and Justice Sotomayor’s views closely enough: (1) Congress should enact a federal rule of contribution among child pornography defendants and (2) replace “proximate cause” with “aggregate causation.” That would make it possible for the many Amys of our world to obtain restitution from even one perpetrator in the marketplace and obtain full restitution. The best part of this solution is that it would then incentivize the one defendant forced to pay it all to identify others as contributors. Let the defendants go after their many contacts in the market for contribution. That reduces the restitution, even if levied against a single person, from an excessive personal fine, and puts the burden of parsing out blame on the bad guys, not the victims who never asked to be on the Internet in the first place.

The AVA incorporates both of Professor Hamilton’s suggestions with a federal rule of contribution among child pornography defendants and by replacing proximate cause with aggregate causation.

Most of these articles were written over 18 months ago. The Congressional “hard work of legislating” which seemed like such a bi-partisan “no-brainer” back in 2014 to fix a “system [which] does not comport with anything we have seen before” remains tragically elusive.

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.

It’s time for the House to pass the AVA. Child pornography victims have waited long enough!

Also posted at HuffPost Crime
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U.K. Children’s Charities’ Coalition on Internet Safety Recommends Restitution for Child Pornography Victims Sun, 29 Mar 2015 18:45:17 +0000 Today the U.K. based Children’s Charities’ Coalition on Internet Safety published a “Digital Manifesto” which it sent to all the major political parties contesting seats in the forthcoming General Election to the U.K. Parliament.

According to the Manifesto:

The government should consider the need for a new legal right for a child to obtain compensation from any person found to be in unlawful possession of an image of them that contravenes section 1 of the Protection of Children Act, 1978. This consideration should include (i) whether each person found in possession of an image should be considered jointly and severally liable for the full amount of the assessed damage suffered and compensation awarded and (ii) whether this right to obtain compensation should be extended to any identified child, irrespective of the country they live in, giving the child a cause of action within English courts.

Here at home, the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2015 is already leading the world by establishing a comprehensive right to victim restitution which includes joint and several liability and a cause of action in federal district courts.

The Act, which passed the Senate 98-0 in February, is currently being considered by the House Judiciary Committee which held a hearing earlier this month.

As Senator Chuck Grassley said upon passage of the AVA in the Senate: “The choice is between the convicted child pornography offender being held responsible for the full loss and the innocent victim not receiving full compensation.”

The passage of the AVA by the House and President Obama’s expected signature will set the standard for child pornography victim compensation worldwide. As the U.K.’s Children’s Charities’ Coalition on Internet Safety Chair, John Carr, noted, “there has been a substantial degree of consensus between the major parties on all matters connected with online child safety.”

With an equal number of Democrats and Republicans supporting the AVA in the House, the same can be said in the United States. Let’s hope the Senate’s bi-partisan attitude toward child pornography victim restitution continues in the House. Let’s pass the AVA now!

Children’s Charities’ Coalition on Internet Safety Digital Manifesto

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House Judiciary Crime Subcommittee Hearing on the AVA: Child Exploitation Restitution Following the Paroline v. United States Decision Thu, 19 Mar 2015 14:00:17 +0000 2141 Rayburn House Office Building
10:00 a.m.
By Direction of the Chairman
Subcommittee on Crime, Terrorism, Homeland Security, and Investigations


Ms. Jill E. Steinberg
National Coordinator for Child Exploitation Prevention and Interdiction
U.S. Department of Justice


The Honorable Paul G. Cassell
Professor of Criminal Law
University of Utah College of Law


Mr. Jonathan Turley
George Washington University Law School


Mr. Grier Weeks
Executive Director
National Association to Protect Children


Opening Remarks

The Honorable Bob Goodlatte

The harms that result from the sexual abuse of children are horrible, and too lengthy to list. These harms last long after the abuse ends. Importantly for our hearing today, they can also be incredibly expensive. The cost of finding a new home, on-going therapy, and other care quickly adds up for the victims of child exploitation. Over the victim’s lifetime, this sum can range into the millions of dollars. Our laws rightly allow victims to seek financial restitution from their abusers, but this is not the end of the story.

Having endured horrific abuse, these children are often confronted with the fact that photos and videos of that abuse are being traded and collected by hundreds of thousands of pedophiles on the Internet. Even children victimized before digital cameras became widespread are now faced with the knowledge that in the Internet Age, a detailed visual record of the darkest moments of their lives exists, is in wide distribution online, and is hungrily sought by pedophiles around the world.

To better compensate victims of child exploitation, Congress expanded restitution liability to those who produce and traffic in the pornographic images stemming from that exploitation. Unfortunately, to date, these efforts have done little to get sex offenders’ money into the hands of their victims.

In the nearly twenty years since the child exploitation restitution statute, 18 U.S.C. Section 2259, was enacted, only fifteen victims of child exploitation trafficking, out of more than 8,600 known victims, have actually sought restitution from those defendants trading their images.

The Supreme Court case we are here to consider today, Paroline v. United States, arose only because of the few brave victims who have sought the restitution they are due. In that case, a young woman, who goes by the name “Amy,” was raped by her uncle when she was a very young child. Like so many other victims, she was horrified to discover, years later, that pictures of her most painful memories were favorites of sick online communities.

It is estimated that because of her initial abuse and constant revictimization through the trafficking in her images, the cost of Amy’s lost wages and other damages will be more than three million dollars over the course of her lifetime. Using 18 U.S.C. Section 2259, Amy has sought restitution from hundreds of sex offenders caught with her images on their computers.

In Paroline, the Supreme Court decided that one defendant with only two of Amy’s images could not be held liable for the full restitution from the actions of thousands of offenders. They also rejected the notion that, at least under the existing statute, the first sued offender could simply sue subsequent offenders for contribution.

We are here today to discuss what comes next. Clearly, even before the Paroline ruling, the system of child pornography restitution needed to be reworked. As I mentioned earlier, only 15 victims, out of the thousands we know of whose images are on the Internet, have sought restitution. That is proof that something is broken. Congress has a responsibility to ensure that those who harm children in this vile way are held accountable for the suffering of their victims.

A well-functioning system must encourage and enable more victims of child exploitation to come forward. It must ensure that they can secure adequate restitution from those who continue their victimization by trading in their images. And, finally, any solution must be appropriately crafted within our Constitutional boundaries.

I look forward to hearing from our panel and hope we can use what we learn today to address the Paroline decision in a thoughtful, responsible manner. As a father and soon-to-be grandfather, I am committed to doing all we can to protect our children and ensuring child victims receive the care they deserve.

I thank our distinguished witnesses.

The Hearing