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2014 Cases: SCOTUS to Address Child Porn Restitution Questions

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By William Peacock, Esq. on July 16, 2013 9:57 AM

Amy and Vicky are pseudonyms for two girls whose childhood sexual abuse was filmed and distributed on the Internet. Thanks to a novel legal path charted by their innovative attorneys, and a victims’ restitution statute, these women have made legal history by obtaining restitution from the pornography possessors, rather than the manufacturer.

That novel theory, however, has fared differently across the various circuit courts. Amy and Vicky’s images are amongst the most widely distributed online, leading their lawyer to file for restitution in a number of jurisdictions. Some courts have split on the proximate cause issue, as it is not immediately clear whether the offense of present-day possession proximately causes trauma to the now-adult victims, nor is it clear from the statute whether proximate causation is required at all.

Other circuits have struggled to find an applicable standard for the damages. We recently discussed the Ninth Circuit's denial of a writ of mandamus where the lower court refused to impose joint and several liability for the whole of the girls' damages. The lower court applied the Sixth Circuit's approach, which determined a pool of damages incurred after the defendant took possession of the images, then divided that pool by the number of standing restitution orders.

The piecemeal approach is obviously less desirable for the two victims, as many child porn possessors will lack the means to cover their portion of the damages. This makes it much more difficult to recover the entire sum, even with the large number of defendants.

The Supreme Court may not reach the issue of damages, however, as they held over two Amy and Vicky cases, from the Ninth and Fifth Circuits, before granting certiorari in a different Fifth Circuit case, Paroline v. United States, which they limited to a single issue: What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. § 2259?

The key language in the bill allows victims to recover the "full amount of the victim's losses," including medical bills, attorneys' fees, and lost income, as well as "any other losses suffered by the victim as a proximate result of the offense."

Note that the final provision, the proximate provision, is a separate sub-point.

The Fifth Circuit found no proximate causation requirement for the first five sub-points, and would only apply proximate cause analysis to the final catch-all provision. However, that circuit stands alone against a number of other circuits, including the First, Second, Third, Ninth, Eleventh, and D.C. Circuits.

Even the in-harmony circuits, however, differ in how they apply the proximate cause standard. The Fifth Circuit, in a footnote to the Paroline case, noted that "the various circuits have applied a proximate cause test to similar, if not identical facts, yet reached differing outcomes that "cannot be entirely explained by differences in the facts of record."

With the issue in Paroline limited to the causation question, one wonders how much longer the lower courts will be confounded by the damages issue? Is the correct approach the piecemeal approach or joint-and-several? If we take the former approach, how do courts make these girls whole when there are potentially thousands of defendants out there, many of whom have yet to be discovered?

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