THE BLOG

Congress Proposes to Fix Restitution for Child Pornography Victims

07/25/2014 05:27 pm ET | Updated Sep 24, 2014
  • James R. Marsh Internationally Recognized Lawyer / Victim's Rights Advocate / Blogger

Faced with a draconian decision by the United States Supreme Court in late April which all but eliminated meaningful restitution for child pornography victims, U.S. Senators Orrin Hatch (R-Utah) and Chuck Schumer (D-N.Y.) spearheaded a comprehensive legislative fix (S. 2301) which addresses the concerns outlined by the Court in United States v. Paroline.

The Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014 was introduced exactly two weeks after the Supreme Court's decision.

Just six weeks later, U.S. Representative Matt Cartwright (D-PA-17), along with co-leads Rep. Tom Cotton (R-AK-4), Rep. Suzan DelBene (D-WA-1), Rep. Randy Weber (R-TX-14), Rep. Judy Chu (D-CA-27), and Rep. Doc Hastings (R-WA-4) introduced the bipartisan House companion bill (H.R. 4981) with the support of 69 House colleagues.

Over 100 Members of Congress from both parties are co-sponsoring the Amy and Vicky Act. National advocacy groups like the National Center for Missing and Exploited Children, the National Crime Victim Law Institute, the National Center for Victims of Crime, and the National Task Force to End Sexual and Domestic Violence Against Women are also supporting this bill.

Here's how this novel new law will allow victims of child pornography to receive meaningful and timely compensation.

About the Act

A longstanding federal statute which was passed as part of the Violence Against Women Act in 1994 (18 U.S.C. §2259) requires that a defendant in a federal child sexual exploitation case must pay restitution for "the full amount of the victim's losses." This works fine for crimes in which a defendant directly causes specific harm to a victim, but child pornography crimes are different. A child pornography victim is harmed by the initial child pornography production-which includes child sex abuse-and then by the distribution, transportation, and possession of the resulting child sex abuse images and videos.

The Supreme Court has recognized that victims are harmed by the ongoing "trade" and "the continuing traffic" in child sex abuse images. "In a sense," the Court said, "every viewing of child pornography is a repetition of the victim's abuse." This is why child pornography is not protected by the First Amendment. Unfortunately on the Internet, that abuse never ends.

Each step in the child pornography process—production, distribution, transportation, and possession—increases the harm to victims while making it more difficult to identify those responsible. The vulnerable victims of this crime, who were sexually abused and exploited as children, are especially in need of compensation to help put their lives back together.

"Amy" and "Vicky" are the victims in two of the most widely-distributed child pornography series in the world. On April 23, 2014, in Paroline v. United States, which reviewed Amy's case, the Supreme Court found that the existing restitution statute is ill-suited for cases like theirs because it requires proving the impossible: how one person's possession of particular images concretely harms an individual victim. This standard unnecessarily places the burden on victims to forever pursue defendants across the country while recovering next to nothing.

The Amy and Vicky Act responds to Paroline and does three things that addresses the unique nature of these crimes.

First, it considers the total lifetime harm to victims from the initial sexual grooming to the last possessor.

Second, it requires meaningful and timely restitution.

Third, it allows defendants who have contributed to the same victim's harm to spread the restitution cost among themselves.

Those who continue a victim's abuse should not be able to hide in the crowd; there can be no safety in numbers. Victims should not have to prove the impossible. The Amy and Vicky Act creates a practical process, based on the unique kind of harms from child pornography, that both puts the burden on defendants where it belongs and provides meaningful and timely restitution for victims.

Highlights

  • A victim's losses include medical services, therapy, rehabilitation, transportation, child care, and lost income. Restitution does not include pain and suffering, emotional damages, or punitive damages.
  • If a victim was harmed by a single defendant, that defendant must pay full restitution for the victim's 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
    • at least $250,000 for production, $150,000 for distribution, or $25,000 for possession.
  • Federal law already provides a mechanism for creating a fair and balanced payment schedule according to each defendant's ability to pay.
  • 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 Congressional findings are clear and unequivocal: "The unlawful collective conduct of every individual who reproduces, distributes, or possesses the images of a victim’s childhood sexual abuse plays a part in sustaining and aggravating the harms to that individual victim. Multiple actors independently commit intentional crimes that combine to produce an indivisible injury to a victim."

Congress is expected to vote on the Act this fall.