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How and Why Congress Must Fix Restitution for Victims of Child Pornography

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Almost two weeks ago, the United States Supreme Court basically invalidated federal restitution for victims of child pornography. In Paroline v. United States et. al., the Court split three ways with all sides calling for Congressional reform of the law.

Last week I reviewed the Court’s majority and dissenting opinions. Here’s what Justice Sotomayor said in her dissent and how Congress can fix the law.

Justice Sotomayor’s Dissent

Justice Sotomayor, who was alone in her dissent, found that the majority’s approach cannot be reconciled with the restitution law that Congress enacted: Congress mandated restitution for the “full amount of a victim’s losses” with defendants held “jointly and severally liable for the indivisible consequences of their intentional, concerted conduct.”

One key problem that Justice Sotomayor identified is the proper standard of causation and how that gets applied in a world where “child pornography victims suffer harm at the hands of numerous offenders who possess their images in common.”

Justice Sotomayor’s solution to this quandary is aggregate causation.

Aggregate causation applies when “the concurrent or successive acts or omissions of two or more persons, although acting independently of each other, are in combination, the direct or proximate cause of a single injury.” In this case, any defendant may be held liable “even though his act alone might not have caused the entire injury, or the same damage might have resulted from the act of the other” defendants.

The policy issue is simple: the child pornography restitution statute offers no safety-in-numbers exception for defendants who possess images of a child’s sex abuse in common with other offenders. The aggregate causation standard exists to avoid exactly that kind of exception. Congress did not intend the law to create a safe harbor for those who inflict upon their victims the proverbial death by a thousand cuts.

After critiquing the majority’s decision as preventing restitution “in cases where the victim’s losses are caused by too many offenders,” and the dissenter’s decision as foreclosing “entry of restitution in cases where a victim suffers indivisible losses as a result of the aggregate conduct of numerous offenders,” Justice Sotomayor proposed her own solution.

Joint and Several Liability with Contribution

Justice Sotomayor explains that “the nature of the child pornography industry and the indivisible quality of the injuries suffered by its victims make this a paradigmatic situation in which traditional tort law principles would require joint and several liability.”

This means that “individuals who act together, with the common end of trafficking in the market for images of child sexual abuse” cannot “hide behind the anonymity of a computer screen.” As joint actors, they are all each liable for the full amount of the victim’s losses. This is especially important because “the injuries caused by child pornography possessors are impossible to apportion in any practical sense.”

Child pornography possessors are jointly liable under this standard, for they act in concert as part of a global network of possessors, distributors, and producers who pursue the common purpose of trafficking in images of child sexual abuse. As Congress itself recognized, “possessors of such material” are an integral part of the “market for the sexual exploitative use of children.”

By communally browsing and downloading Internet child pornography, offenders like Paroline “fuel the process” that allows the industry to flourish. Indeed, one expert describes Internet child pornography networks as “an example of a complex criminal conspiracy,” the quintessential concerted action to which joint and several liability attaches.

In order to mitigate any unfairness from holding one or even several defendants responsible for the entire amount of a victim’s losses, defendants must be able to seek contribution from all similarly situated defendants. Adding joint and several liability with a right to contribution to the child pornography restitution law will solve two of the problems which vexed both the majority and the dissent.

What Congress Must Do

As Justice Sotomayor recognized, “in the end, of course, it is Congress that will have the final say.” If Congress wishes to re-codify 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.’”

According to Sotomayor, 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.”

In an ideal world, Congress will do both. A Congressional fix must happen quickly since, as Justice Sotomayor recognized, the Court’s decision “unduly undermine[s] the ability of victims like Amy to recover for -- and from -- the unfathomable harms they have sustained.”