Sixth Circuit Limits Lifetime Losses Post-Paroline

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This unpublished order in United States v. Wilson is yet another critical reason why Congress must act now to pass the Amy and Vicky Child Pornography Victim Restitution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.

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Senator Hatch Introduces S. 2301

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.

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In Response to Recent Supreme Court Decision, Senators Hatch and Schumer Introduce Bill to Strengthen the Law for Child Pornography Victims

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).

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Congress Acts – The Amy and Vicky Child Pornography Restitution Improvement Act

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)

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After the Supreme Court – Congress Must Now Act

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.

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National Crime Victim Law Institute: Mixed Message From U.S. Supreme Court to Crime Victims

The United States Supreme Court issued its opinion today in a long continuing case that NCVLI has been involved with since 2009. The decision, which involves the proper scope of financial recovery for a victim in a child-abuse image case (aka child pornography cases), is unfortunately one of mixed messages and new hurdles for victims across the country. 

In Paroline v. United States, Defendant was convicted of possessing two images of “Amy” being photographed as her uncle sexually abused her when she was a young girl (8 years old). The district court awarded “Amy” nothing in restitution, despite her documented losses of approximately $3.4 million for harms including future counseling and lost income. On appeal, the Appellate Court reversed and ordered defendant to pay “Amy’s” full losses in restitution. The Supreme Court reversed and remanded. 

This reversal came despite the Court’s recognition that the victim’s costs “are direct and foreseeable results of child-pornography crimes, including possession”, that “every viewing of child pornography is a repetition of the victim’s abuse,” and that Congress’ clear intent was “that victims of child pornography be compensated by the perpetrators who contributed to their anguish”. The Court cautioned that restitution awards should not “be a token or nominal amount”; in light of the varied amounts in restitution awards issued over the years this statement is paltry solace for these victims who have already endured too much.

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Child Pornography victims need a roadmap to restitution, and Congress can provide it

Today the Supreme Court unambiguously affirmed the right of victims of child pornography to receive restitution. But the process by which restitution is collected remains extremely difficult and burdensome for the victims. Congress must act to bring clarity and lift the victim’s heavy load. 

In light of today’s decision in Paroline v Amy Unknown, the National Center for Victims of Crime calls on Congress to re-draft the statute to ensure that victims get just and fair restitution. Justice requires that we shift the burden of collection, which is currently on the victims, on to those who participate in this illegal trade.
“The Supreme Court has stated 9-0 that child pornography is not a victimless crime and that this harm creates a right to restitution. Congress must step up and provide victims with a roadmap to enforce that right,” said Mai Fernandez, Executive Director of the National Center for Victims of Crime.

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