The AVAA, which was long-championed by Senator Orrin G. Hatch [R-UT], answers the call of Justice Sonya Sotomayor in Paroline v. United States that “in the end, of course, it is Congress that will have the final say.”
The Paroline case involved a young woman named Amy who was sexually abused as a child in order to produce child pornography. When she was 17, she learned that images of her abuse were being trafficked on the Internet, in effect repeating the original wrongs, for she knew that her humiliation and hurt would be renewed well into the future as thousands of additional wrongdoers witnessed those crimes.
The defendant in Paroline pleaded guilty in federal court to possessing images of child pornography which included Amy, in violation of the federal child pornography laws. Amy sought restitution under 18 U.S.C.§ 2259, the Mandatory Restitution for Sexual Exploitation of Children Act of 1994 which was enacted as part of the Violence Against Women Act, for lost income and future treatment and counseling costs.
After several years of litigation in the lower courts and the Fifth Circuit Court of Appeals, the case was accepted by the Supreme Court on June 27, 2013. Oral argument occurred on January 22, 2014.
Paroline v. United States, which was decided by the Court on April 23, 2014, was a 5-3-1 decision with Chief Justice Roberts, Justice Scalia, and Justice Thomas joining in a dissent, while Justice Sonya Sotomayor wrote a separate dissent.
The majority decision, which was written by Justice Kennedy and joined by Justices Ginsburg, Breyer, Alito, and Kagan, recognized the terrible harm caused by child pornography, but adopted an almost nonsensical standard for determining restitution:
- a court should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses
- the amount should not be severe
- the amount should not be token or nominal
- the award should be reasonable and circumscribed
- the award should recognize the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role
- trivial restitution orders are prohibited
- the victim should someday collect restitution for all her child pornography losses
- restitution orders should represent an application of law, not a decision-maker’s caprice
The majority urged the lower courts to “use discretion and sound judgment” without resorting to a “precise mathematical inquiry” and offered “rough guideposts” for “determining an amount that fits the offense.”
Both dissents criticized the majority’s decision and the federal restitution statute and called on Congress to change the law. Chief Justice Roberts concluded that “the Court’s decision today means that Amy will not go home with nothing. But it would be a mistake for that salutary outcome to lead readers to conclude that Amy has prevailed or that Congress has done justice for victims of child pornography. The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it.”
Justice Sotomayor suggested that “if Congress wishes to recodify its full restitution command, it can do so in language perhaps even more clear than §2259’s ‘mandatory’ directive to order restitution for the ‘full amount of the victim’s losses.’ Congress might amend the statute, for example, to include the term ‘aggregate causation.’ Alternatively, to avoid the uncertainty in the Court’s apportionment approach, Congress might wish to enact fixed minimum restitution amounts. See, e.g., §2255 (statutorily imposed $150,000 minimum civil remedy).”
The AVAA was created to address both Chief Justice Roberts’ and Justice Sotomayor’s invocation to fix the law. In the AVAA, Congress specifically declared that “it is the intent of Congress that victims of child pornography be compensated for the harms resulting from every perpetrator who contributes to their anguish. Such an aggregate causation standard reflects the nature of child pornography and the unique ways that it actually harms victims.”
In addition, the statute establishes a “fixed minimum restitution amount” of “no less than $3,000.” The AVAA, which was introduced in three sessions of Congress before finally passing on November 15, 2018, also streamlines the process for obtaining restitution and includes other major reforms for victims of child pornography and online exploitation. The new law:
- Expresses Congress’ recognition of the American Professional Society on the Abuse of Children’s statement that child pornography harms are “psychologically intertwined” to address the Galan decision’s disaggregation requirement.
- Courts must order restitution for victims of child pornography trafficking “in an amount that reflects the defendant’s relative role in the causal process that underlies the victim’s losses [the Paroline factors], but which is no less than $3,000.”
- Victims of child pornography trafficking are entitled to receive a onetime payment of $35,000 in defined monetary assistance which is indexed to inflation.
- Child pornography victims will enjoy equal rights with criminal defendants to review the child pornography depicting them at a government facility or court for the purposes of furnishing expert testimony.
- The “full amount of a victim’s losses” includes “costs incurred, or that are reasonably projected to be incurred in the future, by the victim, as a proximate result of the offenses involving the victim, and in the case of trafficking in child pornography offenses, as a proximate result of all trafficking in child pornography offenses involving the same victim” (encompassing a victim’s aggregate harm).
- Along with the standard categorical losses, victims can also receive restitution for “any other relevant losses incurred.”
- The court must assess defendants in child pornography cases to contribute to a newly established child pornography victims reserve fund.
- $10 million will be set aside annually, along with assessments paid into the reserve, to provide defined monetary assistance.
- Attorney’s fees in defined monetary assistance claims are capped at 15%.
- The Department of Justice must deliver a report to Congress within two years after passage about the Act’s implementation including an assessment of the funding levels for the Child Pornography Victims Reserve.
The AVAA enjoyed not only wide bi-partisan support—passing both chambers by unanimous consent—it was also endorsed by major victims rights and law enforcement organizations nationwide including:
- National Center for Victims of Crime
- National Crime Victim Law Institute
- Fifty Five State Attorney Generals
- National District Attorneys Association
- National Organization for Victim Assistance
- National Association of VOCA Assistance Administrators
- National Crime Victims Bar Association
- Child USA
- American Professional Society on the Abuse of Children
- Academy on Violence and Abuse
- Rape Abuse and Incest National Network [RAINN]
- Enough is Enough
- DV LEAP
- Utah Crime Victims Legal Clinic
- Utah Coalition Against Sexual Assault
- Children’s Justice Fund
As Senator Hatch wrote in his signing statement “This legislation will help provide meaningful assistance for child pornography victims to support their recovery and allow them to reclaim their lives. This is a momentous day and many years in the making.”
Both Amy, Vicky, and Andy enthusiastically endorsed this bill:
When I wrote a letter over three and a half years ago supporting the Amy and Vicky Act, I thought the law would be enacted in a heartbeat. That was in 2014 right after the Supreme Court decided my case in Paroline v. United States. Now, over four years later, Congress has finally passed, and President Trump has signed, the AVAA!!! I can’t thank you enough for fighting for us, for being our voice, for standing up for us. We were silenced for so long and it just feels amazing to be heard and to actually create change for others in the future. Thank you for making it easier for us to rebuild our lives. You do not know how much this means to all the victims and survivors out there and we are forever grateful. This kind of trauma just doesn’t go away but now you have given hope to current victims and future survivors. Thank you!by Amy
Thank you to the many members of the Congress and the President who have recognized that survivors of child pornography crimes deserve restitution from those who traffic in the images of the survivors’ abuse. We must break the cycle of child sexual abuse and support the children who face the longstanding and unique impacts that come from the distribution of the images of their abuse.
This law finally gives tangible and certain redress to those who truly need it. It provides hope that there will be help and assistance for the long road of healing for those who are coming out of this seemingly insurmountable situation of ongoing trauma. The law puts the focus where it belongs—on the innocents, the children who have been victimized and who come before the court in need of assistance to support their recovery from the most horrific of crimes.by Vicky
Victims like me need as much help as we can get and this law will make a big difference in our lives. The AVAA is a huge improvement because it will let courts know that victims deserve at least $3,000 in every single case from every single defendant. My life has not been easy because of my abuse and exploitation, but this law gives me hope that change is possible for victims and survivors of this terrible crime, and a change in attitudes about how we deserve to be treated in federal court. Thank you Senator Hatch and everyone in Congress and the President for making the lives of victims like me a little better and for giving us hope for the future.by Andy