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