On April 23, 2014, the United States Supreme Court issued a much-anticipated decision concerning federal criminal restitution for child pornography victims. The case, Paroline v. United States
, 134 S. Ct. 1710, 188 L. Ed. 2d 714 (2014), attracted 14 amicus briefs supporting a victim named Amy, whose road to the Supreme Court started in 2008.Victims of child pornography are harmed twice: first, by the sex abuse and sexual assault committed against them and, second, by the subsequent distribution and collection of the images and videos depicting their sexual abuse. The worldwide, ubiquitous circulation of a victim’s child pornography is a never-ending invasion of privacy that is both psychologically traumatizing and emotionally unsettling.
Today, forty four attorneys general endorsed the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014
and requested that Congress bring the bill to a vote.Calling the United States Supreme Court decision in Paroline v. United States
"counter to the legal opinions of the attorneys general of 35 states and territories, expressed in an amicus brief
urging the Supreme Court to allow full restitution to victims of child pornography," the attorneys general criticized the high court's decision as forcing "victims to pursue a continuous stream of defendants, recovering very little in each case."The Paroline
decision "disincentivizes victims from seeking the resources they need for therapy, medical care, lost wages and other needed services" while protecting "defendants from having to pay substantial costs to those they have harmed."
Despite Congress' longstanding mandate
that each and every federal child pornography defendant pay restitution to victims, in reality the vast majority of convicted child pornography criminals pay no restitution at all. New facts present a dismal reality for victims of child rape and sexual assault which results in child pornography.
The United States Sentencing Commission
recently compiled some damning statistics
about child pornography offenders subject to fines and restitution.
The Amy and Vicky Child Pornography Victim Restitution Improvement Act will guarantee that victims receive restitution from every convicted criminal in every case. No longer will victims be relegated to a handful of defendants paying token amounts in just a few dozen cases per year.
Mandatory restitution should be just that—mandatory. Child pornography victims deserve no less than full compensation for their endless online exploitation. Congress must fix the law to restore justice and fairness to a restitution system which has gone seriously awry.
United States District Court Judge John J. McConnell, Jr., in one of the first reported cases since the Supreme Court's April 23, 2014 decision in United States v. Paroline
, illustrates the growing frustration within the federal courts which are struggling to implement the Court's problematic directive.
Last week, another federal district court struggling to implement the Supreme Court's decision in Paoline
admonished Congress to fix the law.
"While I do not necessarily agree with the dissent that “[t]he statute as written allows no recovery,” I certainly agree with the admonition that “Congress [should] fix it.”
Today, U.S. Representative Matt Cartwright (D-PA-17), along with co-leads Rep. Tom Cotton (R‑AK‑4), Rep. Suzan DelBene (D-WA-1), Rep. Randy Weber (R-TX-14), Rep. Judy Chu (D-CA-27), and Rep. Doc Hastings (R-WA-4) introduced the bipartisan Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014, with the support of 69 House colleagues, to provide an effective restitution process for child pornography victims.
“Victims of child pornography deserve an effective restitution process to help alleviate the suffering they have endured. We must support the victims of these atrocious crimes and ensure that they receive what is entitled to them: full protection and compensation,” Rep. Cartwright said.
“Furthermore, we must hold perpetrators accountable for their involvement in this crime. It is impossible to measure or understand the psychological harm done by these types of crimes, which is why we need to work together to strengthen the voice of these victims, and help them rebuild their lives.”
On June 5, 2014, the Sixth Circuit Court of Appeals—in the first federal circuit court ruling since the United States Supreme Court issued its decision in Paroline
in April—held that a child pornography defendant is not liable for a victim's lifetime losses. This order seriously undermines the ability of child pornography victims to recover full restitution from any defendant.
This unpublished order
in United States v. Wilson
is yet another critical reason why Congress must act now to pass the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014.
The Amy and Vicky Act restores 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.
Today I will introduce legislation that will help victims of one of the most vicious crimes and one of the most evil crimes in our society: child pornography.
When Congress enacted the Violence Against Women Act more than 20 years ago—and I had a lot to do with that, and then-Senator Biden deserves an awful lot of the credit for that—the law required that the defendant in a child sexual exploitation case must pay restitution "for the full amount of the victim's losses." Those losses can include lost income as well as expenses for medical services, therapy, rehabilitation, transportation, and childcare.
The restitution statute works in a straightforward way for crimes that involve individual defendants who cause specific harm to particular victims. But child pornography is different. Victims not only suffer from the initial abuse, but they continue to suffer as images of that abuse are created, distributed, and possessed. As the Supreme Court recently put it, "Every viewing of child pornography is a repetition of the victim's abuse."
In the Internet age, a child pornography victim's abuse never ends, but identifying everyone who contributes to that ongoing abuse can be difficult, if not impossible. A predator who commits and records the abuse might be readily identified. Those who distribute those images, however, are harder to find, and many who obtain and possess them might never be identified at all. They may get lost in the crowd. They may seek safety in shadows. But the harm they cause to victims is no less devastating.
Our challenge is to craft a restitution statute suited for this unique kind of crime. We are meeting that challenge today by introducing the Amy and Vicky Child Pornography Victim Restitution Improvement Act. Amy and Vicky are victims in two of the most widely distributed child pornography series in the world. They know how difficult it is to seek restitution for ongoing harm caused by unknown people.
U.S. Senators Orrin Hatch (R-Utah), a current member and former Chairman of the Senate Judiciary Committee, and Chuck Schumer (D-N.Y.), current member of the Judiciary Committee, will introduce today the Amy and Vicky Child Pornography Victim Restitution Improvement Act
to create an effective, balanced restitution process for victims of child pornography that also responds to the Supreme Court’s decision in Paroline v. United States
Hatch and Schumer both signed onto a friend of the court brief in the Paroline
case. “Amy” and “Vicky” are the victims in two of the most widely-distributed child pornography series in the world.
The Amy and Vicky Act does three things that reflect the nature of these crimes: (1) it considers the total harm to the victim, including from individuals who may not yet have been identified; (2) it requires real and timely restitution; and, (3) it allows defendants who have contributed to the same victim’s harm to spread the restitution cost among themselves.
The bipartisan legislation is cosponsored by Sens. John Cornyn (R-Tex.), Lindsey Graham (R-S.C.), Chuck Grassley (R-Iowa), Ed Markey (D-Mass.), John McCain (R-Ariz.), and Rob Portman (R-Ohio).
The Amy and Vicky Act creates an effective, balanced mandatory restitution process for victims of child pornography that responds to the Supreme Court’s decision in Paroline v. United States. It does three things that reflect the nature of these crimes.
First, it considers the total harm to the victim, including from persons who may not yet have been identified.
Second, it requires real and timely restitution.
Third, it allows defendants who have contributed to the same victim’s harm to spread the restitution cost among themselves.
- A victim’s losses include medical services, therapy, rehabilitation, transportation, child care, and lost income
- If a victim was harmed by a single defendant, the defendant must pay full restitution for all her losses
- If a victim was harmed by multiple individuals, including those not yet identified, a judge can impose restitution on an individual defendant in two ways depending on the circumstances of the case
- the defendant must pay “the full amount of the victim’s losses” or, if less than the full amount,
- at least $250,000 for production, $150,000 for distribution, or $25,000 for possession
- Federal law already provides a mechanism for creating a restitution payment schedule
- Multiple defendants who have harmed the same victim and who are liable for the "full amount" are jointly and severally liable and may sue each other for contribution to equalize their restitution obligation. (the Supreme Court said in Paroline that this is important)