Full Restitution for Child Pornography Victims: The Supreme Court’s Paroline Decision and the Need for a Congressional Response

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