Ninth Circuit Court of Appeals – Child Pornography Restitution Mess “Cries Out for a Congressional Solution”

“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)