Making child pornography is abuse. What about possessing it? As a group, these offenders—the ones who look but don’t abuse children to create new images—are serving increasingly long prison sentences. In 2004, the average sentence for possessing child pornography was about 4 ½ years. In 2010, it was almost eight years. Child sex offenders may also be kept in prison beyond their release dates through “civil commitment” if the state deems that they’ll have “serious difficulty in refraining from sexually violent conduct or child molestation if released.”
It’s hard to feel concern for people (mostly men) who prowl the Internet for sexually abusive images of children, some of whom are very young. Their crimes aren’t “victimless,” as defense lawyers sometimes argue. These men create the market for new images. They are the demand behind the supply. I’ve written about how hard it is for women who were abused and photographed as girls to know that men are still viewing, and taking pleasure in, the record of their suffering—and about the victims’ efforts to win restitution from these men.
But the main reason Congress has upped the penalties for men who possess child pornography is the deep-seated belief that many of them physically abuse children and that they are highly likely to keep doing so because they can’t stop themselves. Is that true? I’ve heard it so many times it’s hard to think otherwise. Yet that premise is contested in a new 468-page report by the U.S. Sentencing Commission (the body Congress established to advise it about federal sentencing law). The commission did its own research. It says the federal sentencing scheme for child pornography offenses is out of date and argues that this leads to penalties that “are too severe for some offenders and too lenient for other offenders.”
For the rest of Emily's piece, visit Slate.com. The comments are especially instructive.
]]>The thorny question of how to calculate restitution to victims of child pornography came back before the U.S. Court of Appeals for the D.C. Circuit last week, with the U.S. Department of Justice defending a proposed formula.
Friday's arguments marked the second time the court considered the case of Michael Monzel. Monzel pleaded guilty to one count each of distribution and possession of child pornography. A trial judge ordered Monzel to pay $5,000 to a victim known by the pseudonym "Amy," but on remand from the D.C. Circuit reduced the award to zero, finding the government didn't produce evidence on how much of Amy's losses he caused.
The government appealed, arguing U.S. District Judge Gladys Kessler was wrong to reduce the award and that its proposed formula - dividing a victim's total losses by the number of individuals found criminally responsible and then adjusting based on certain factors - represented a fair solution. Monzel's lawyer, Federal Public Defender A.J. Kramer, said the formula was arbitrary and that Kessler was right to reduce the award after the government presented no evidence linking his client to specific losses.
Courts across the country have struggled to find a consistent way to calculate damages in child pornography cases. As lawyers on both sides noted, there are often an unpredictable number of defendants, especially if the images are distributed online, and it can be difficult to know the extent an individual defendant who viewed or possessed an image was responsible for harming the victim.
To find out what happened at the D.C. Circuit, read the rest of this post at the BLT.
]]>You'd have to imagine, at some point, that either Congress (ha!) or the Supreme Court will step in and clear up the confusion surrounding restitution for those depicted in child pornography, as well as the issue of joint and several liability of the present day possessors of the images. Though they've denied certiorari in Amy and Vicky cases before, the flood of circuit court confusion and circuit splintering continues.
Last September, the ABA Journal wrote an exhaustive feature on Amy and Vicky, the two victims who have had cases appear in nearly every federal Circuit Court of Appeals in the nation. In fact, they've had two opinions released regarding their restitution this week, including a writ of mandamus in the Ninth Circuit.
…
This isn't the first time Amy and Vicky have reached the Ninth Circuit. In 2011, a Ninth Circuit panel in United States v. Kennedy vacated a restitution award in Amy and Vicky's favor due to questions about proximate causation. The pair asked the Ninth Circuit to reconsider last year, after the Fifth Circuit came to a different conclusion. The panel, however, is bound by precedent.
Earlier this year, the Ninth Circuit kicked an Amy and Vicky case back to the district court to reexamine the issue of restitution, after finding that, contrary to the lower court's denial, petitioners had "provided sufficient evidence to establish a causal connection between defendant's offense and petitioners' losses."
In this week's opinion, Amy and Vicky appealed that lower court's restitution order again, this time arguing that joint and several liability for the entirety of the girls' damages was appropriate, rather than individual liability for a portion of the damages.
To find out how the court ruled, read the entire post here on Findlaw's Ninth Circuit News and Information Blog.
]]>The case, Doyle Randall Paroline v. Amy Unknown, arises out of a long-fought extensively litigated restitution action which started almost four years ago before Judge Leonard Davis in the Eastern District of Texas Tyler Division.
In January, the defendant filed a Petition for a Writ of Certiorari in the Supreme Court seeking review of last year's landmark Fifth Circuit en banc decision which significantly expanded the rights of child pornography victims to receive criminal restitution.
There are two questions presented in this Supreme Court appeal:
- Congress enacted the Mandatory Restitution for Sexual Exploitation of Children Act of 1994, 18 U.S.C. §2259, to benefit victims of federal child pornography crimes, including victims like respondent-Amicus Amy, whose child sex abuse images are traded and collected over the internet by countless individuals worldwide. The statute provides in part that a court “shall order restitution” for a victim of any child pornography crime in “the full amount of the victim’s losses.” Congress defined these losses as including psychological counseling, lost income, attorneys’ fees, child care expenses, as well as “any other losses suffered by the victim as a proximate result of the offense.” The question presented is whether the Mandatory Restitution for Sexual Exploitation of Children Statute, 18 U.S.C. §2259, excuses a defendant from paying restitution for the enumerated loss categories unless there is proof that the victim’s losses were the proximate result of an individual defendant’s child pornography crime.
- The Excessive Fines Clause of the Eighth Amendment provides that “excessive fines [shall not be] imposed.” U.S. Const., Amdt. VIII. This Court has applied the Excessive Fines Clause in United States v. Bajakajian, holding that “[f]orfeitures—payments in kind—are…‘fines’ if they constitute punishment for an offense.” 524 U.S. 321, 328 (1998). In applying Bajakajian to crime victim restitution, the United States Courts of Appeals are divided on whether restitution awards are similarly punishment for an offense and thus subject to the limitations of the Excessive Fines Clause. The second question presented is whether a district order directing a defendant to make restitution payments to the victim of his crime is punishment subject to the limitations of the Excessive Fines Clause, or is a remedial payment not restricted by the Clause.
Amy's attorneys are asking the high court to grant the defendant's petition for cert because they want the Court to consider the restitution issue. Even though they disagree with the defendant's opposition to restitution, they believe this is the best case yet for Supreme Court review. It is one of the few cases where the victim, Amy, will be allowed to argue in support of restitution not only for herself, but for other victims of child pornography.
Marsh and Cassell argue that
Congress passed a broad restitution statute for child pornography victims like Amy. The Mandatory Restitution for Sexual Exploitation of Children Act of 1994, 18 U.S.C. §2259, requires that when sentencing a defendant for a child pornography crime, the district court must direct the defendant to pay the victim the “full amount of the victim’s losses.” The statute defines losses as including expenses for psychological counseling, lost income, child care expenses, and attorneys’ fees. 18 U.S.C. §2259(b)(3)(A)-(E). It also authorizes restitution for “any other losses suffered by the victim as a proximate result of the offense.” 18 U.S.C. §2259(b)(3)(F).
A deep, acknowledged circuit split has developed on how to interpret this commonly-used restitution statute. In the last three years, eleven circuits have ruled on this recurring issue. Applying varying rationales, ten circuits have interpreted the “proximate result” limitation as implicitly applying not only to the last item in the list (the “any other losses”) but also to all the other enumerated losses. Under this interpretation of the statute, in order to obtain restitution for the cost (for example) of psychological counseling, Amy and other victims must show that the counseling was the “proximate result” of an individual defendant’s crime. As a practical matter, this showing is quite difficult to make given that thousands of defendants are currently being prosecuted for possessing, transporting, and distributing Amy’s child sex abuse images with thousands of more to come in the foreseeable future.
In the decision below, however, the Fifth Circuit en banc reached a different interpretation of the statute. Specifically rejecting the view of the other circuits, the Fifth Circuit held, 10 to 5, that Congress intended to provide broad restitution to victims of federal child sex offenses without requiring proof that losses proximately resulted from an individual defendant’s crime. This lengthy and well-reasoned decision is faithful to the text of the statute, which contains a proximate result requirement only in subsection (F) and not in subsections (A) through (E). The Fifth Circuit also held that this interpretation does not implicate Eighth Amendment excessive punishment concerns since restitution is not punishment but a remedial measure to compensate crime victims.
The Government will file its brief by May 8, 2013. The Court is expected to review the case during the summer and will likely issue a decision on whether to accept it for full briefing and oral argument in September, 2013.
Further information on this landmark case
Supreme Court Docket for this case
Landmark Children's Rights Case Now Before the Fifth Circuit
Texas inmate is part of growing child porn trend that has ruined lives
Case Highlights Problems for Child-Porn Victims Seeking Restitution
Texas judge refuses bid to make child porn users pay damages
Also read
The Price of a Stolen Childhood
Should Those Who Download Child Pornography Pay the Victims?
Response to a Petition for Certiorari by Marsh Law Firm PLLC
]]>
In other words, "generalized harm" = no foul and no restitution for victims of child pornography.
According to the Tenth Circuit:
Courts have struggled with articulating a precise standard of proximate cause in the restitution context under § 2259. Although this court has not specified the nature of the proximate cause requirement in § 2259, several other circuits have determined that the government must show the victim's losses were proximately caused by the particular defendant in question and that a showing of causation more generally is insufficient.
Although the Court "acknowledged" the Fifth Circuit's groundbreaking en banc decision in In re Amy Unknown, it was instead "persuaded by the majority of our sibling circuits."
The Court held that "in determining the scope of restitution to be awarded to a child pornography victim, § 2259 requires a showing that the victim's losses are proximately caused by the defendant's offense. Some circuits have relied on the “series-qualifier” canon to conclude that the proximate cause requirement applies to each of the subsections included in § 2259(b)(3)."
The Court concluded that "because proximate cause is such a widely accepted principle, we will not conclude that Congress intended to abrogate it in drafting § 2259 without good reason. … We agree with the majority of courts that Congress did not intend to create a system of strict liability under § 2259."
The only remaining Circuit which has not considered restitution for victims of child pornography possession is the Third Circuit covering Pennsylvania, New Jersey and Delaware. The Marsh Law Firm, which helped write the brief in this case, is readying a case for appeal in the Third Circuit. In the meantime, three petitions for a writ of certiorari, also authored by the Marsh Law Firm, remain pending in the United States Supreme Court.
]]>All across this country - but especially in states that are home to multiple Native American Tribes - unethical adoption attorneys are purposely circumventing the federal law that is meant to protect Native American children. Even worse are the continuing attempts by some adoption lawyers to take advantage of active duty service members in the process of being deployed to combat, or in active deployments.
Today's lead story on NPR was also about this case: Adoption Case Brings Rare Family Law Dispute To High Court.
Read the Politico commentary here and listen to the NPR story here.
]]>Court Below: South Carolina Supreme Court
Petitioners, Adoptive Couple, decided to adopt a baby girl from a single mother. After Baby Girl's birth, Adoptive Couple began the official adoption process and Birth Father, a member of the Cherokee Nation, signed a form relinquishing his rights to Baby Girl. Later, however, Birth Father claimed that he did not intend to relinquish his rights and sought to invoke the Indian Child Welfare Act ("ICWA") because Baby Girl is of Indian heritage.
Both the Charleston County Family Court and the Supreme Court of South Carolina held that Birth Father should have custody of Baby Girl.
Adoptive Couple argues that Birth Father does not qualify as a “parent” under the ICWA and, thus, does not have parental rights to stop Baby Girl’s adoption. Furthermore, Adoptive Couple asserts that given the intent of the ICWA and the fact that Baby Girl has no parental relationship to Birth Father or other ties to the Cherokee Nation, the ICWA cannot be applied to oppose her adoption.
Respondents Birth Father and the Cherokee Nation claim that Birth Father does meet the “parent” definition of ICWA because he has proven his biological link to Baby Girl and also acknowledged her as his child. The Supreme Court's decision in this case will have an impact on the adoption process and system for children of Indian heritage, their biological parents, and prospective adoptive parents.
QUESTIONS PRESENTED:
Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.
Whether ICWA defines "parent" in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.
Read the entire case preview at the Legal Information Institute here.
]]>Because they knew it might be tempting to attribute this to demographic differences, researchers controlled for age, gender, parent education, family structure, income and race/ethnicity. In their brief, "Measuring the Associations Between Symptoms of Depression and Suicide in Adolescence and Unhealthy Romantic Relationships in Young Adulthood," they report that the findings remained true across all of these potential divides.
In addition to their call for identifying and intervening with adolescents with (or at risk of) depressive or suicidal symptoms, study authors recommend that researchers explore specific factors (such as poor problem-solving or communications skills, or past victimization) that impact relationship outcomes for this population, and that practitioners use the results of that research to target their interventions.
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Behind the Cover Story: Emily Bazelon on Pornography and Punishment
"It's a common refrain in child pornography cases to say that it is a victimless crime. The person who downloaded the image was quote unquote just looking. Restitution helps force them to see that they are part of a market that depends on hurting real children."
]]>According to the article:
The sensationalism of many criminal trials, especially those of a capital nature, often result from the aggravating circumstances impacting the victim. Conversely, the mitigating circumstances that affect the accused‘s criminality rarely grab headlines. During the sentencing phase of a criminal trial, mitigating factors may justify leniency or otherwise serve to lessen the sentence for the crime with which the accused has been charged. Whether a particular factor will be considered a mitigating one will depend upon the particular facts of the case.
The federal Sentencing Reform Act of 1984 provides guidance in this process, but each state maintains the discretion to dictate its own criteria within the confines of constitutional constructs. The United States Supreme Court has increasingly addressed the importance of clarity in the presentation and consideration of mitigating evidence, which is integral to the trial and sentencing of an accused.
Should a history of foster care involvement serve as a legitimate mitigating circumstance for a defendant in a criminal trial? Although this article does not provide a definitive answer, it does attempt to provide a better understanding of the foster care experience to those contemplating the question.
Part I provides a general introduction to the topic of foster care. Part II discusses different types of foster care. Part III discusses the impact of foster care on children. Finally, Part IV offers a brief conclusion.
For a copy contact Daniel Pollack, a Professor at Yeshiva University’s School of Social Work in New York City, and a frequent expert witness in child welfare cases. He can be contacted at dpollack@yu.edu, (212) 960-0836
]]>Congress determined that these [child pornography] restitution offenses typically proximately cause the losses enumerated in subsections 2259(b)(3)(A) through (E). Congress did not mean that a specific defendant automatically proximately causes those losses in every case. The government still has to prove that the defendant proximately caused those losses.
[I]njury to the child depicted in the child pornography…is a readily foreseeable result of distribution and possession of child pornography. Proving proximate cause may require nothing more than “expert reports and…victim impact statements” about the costs enumerated in subsections (A) through (E) that the victim incurred after the defendant’s offense began. Determining the “full amount of the victim’s losses” that a defendant’s offense caused is best left to the district court in the first instance.
(emphasis added)
The Court also rejected joint and several liability and contribution which would shift the burden of collecting full restitution from victims to criminals:
Vicky argues that the district court should have held Fast jointly and severally liable for the full amount of her losses. Then, she asserts, he could seek contribution from other defendants liable to her. Section 3664 states, “If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim’s loss and economic circumstances of each defendant.” 18 U.S.C. § 3664(h). Because “there is only one defendant in this case,” section 3664(h) does not apply.
The Dissent agreed with the Marsh Law Firm's approach as articulated by the Fifth Circuit:
In In re Amy Unknown, the Fifth Circuit concluded that the plain language of section 2259 imposes a proximate cause requirement only on losses awarded under subsection (b)(3)(F). The court reasoned that the rule of the last antecedent, a well-established rule of statutory construction, “instructs that ‘a limiting clause or phrase,’ such as the ‘proximate result’ phrase in § 2259(b)(3)(F), ‘should ordinarily be read as modifying only the noun or phrase that it immediately follows.’”
Significantly, the Supreme Court applied the rule of the last antecedent in two recent cases.
Because “[t]he structure and language of § 2259(b)(3) limit the phrase ‘suffered by the victim as a proximate result of the offense’ in § 2259(b)(3)(F) to the miscellaneous ‘other losses’ contained in that subsection,” and because there is “no ‘other indicia of meaning’ in the statute to suggest that the rule of the last antecedent does not apply here,” the court found that losses in subsections (A)-(E) are not subject to a proximate cause requirement.
Thus, under the Fifth Circuit’s approach, as long as losses in subsections (A)-(E) are incurred “as a result of a commission of a crime under this chapter,” § 2259(c), a district court must award victims “the full amount” of their losses under section 2259(b)(1), regardless of whether the defendant proximately caused those losses. Only miscellaneous “other losses” are subject to a proximate cause requirement.
This, of course, does not mean that the statute imposes no causal requirement at all. As explained above, section 2259 defines “victim” as “the individual harmed as a result of a commission of a crime under this chapter,” § 2259(c), and then requires courts to order restitution for “the full amount of the victim’s losses,” § 2259(b)(1).
Thus, before a court can order restitution, it must determine that (1) the defendant committed a qualifying offense and (2) the person seeking restitution suffered harm as a result of that offense. See § 2259. To the extent that the harm resulting from the offense involves medical services, therapy or rehabilitation, transportation, temporary housing, child care, lost income, or attorneys’ fees and costs under subsections (A)-(E), a defendant must pay restitution for the full amount of those harms, regardless of whether the defendant proximately caused them.
Congress likely chose not to impose a proximate cause requirement for these types of losses because proving proximate causation would be virtually impossible in many situations, thus leaving child victims without redress.
(emphasis added)
Concerning the ancient and somewhat discredited legal theory of "proximate cause," the Dissent found that:
“[P]roximate cause” involves more of a policy judgment about whether a particular defendant’s action bears a sufficient causal relationship to an injury such that the law should hold the defendant liable for the injury. On one end of the spectrum is the example above, where the victim’s psychological problems are “caused” by innumerable unknown defendants. In this situation, the causal link between a specific defendant’s conduct and the victim’s losses is more tenuous because it would be virtually impossible to show that the victim’s psychological trauma and attendant counseling expenses would have been any less had that individual defendant not viewed the images. In other words, it is unclear whether the victim could prove that an individual defendant “proximately caused” his or her losses.
(emphasis added)
Addressing the victim's joint and several and contribution arguments, the Dissent found that:
Section 2259(b)(1) clearly states that the restitution order must be for “the full amount of the victim’s losses.” Read in tandem with subsection 2259(c), which defines “victim” as “the individual harmed as a result of a commission of a crime under this chapter,” the statute’s reference to “the full amount of the victim’s losses” is best understood as all losses the victim suffered as a result of the defendant’s crime under Title 18, Part I, Chapter 110: Sexual Exploitation and Other Abuse of Children.
Applying normal common-law principles, where the losses stem from an indivisible injury, the defendant must be held jointly and severally liable for that injury. For example, if the hypothetical victim above has incurred a total of $500,000 in counseling expenses as a result of knowing that numerous unknown people are viewing his or her pornographic images, and the court makes a factual finding that his or her psychological trauma is an indivisible injury, then the district court must enter a restitution order for $500,000, even though the individual defendant is not the only person responsible for those losses.
If the court determines that some or all of the victim’s injuries are divisible, then the court must apportion liability for those losses and enter a restitution order reflecting only the portion of those losses for which the defendant is individually responsible. An example of divisible losses might be attorney’s fees incurred in pursing a restitution action against a specific defendant.
In cases where a restitution order reflects joint and several liability, traditional joint and several liability principles would allow a defendant to bring contribution actions against other individuals who contributed to the victim’s losses.
These same principles would prevent victims from recouping more than “the full amount” of their losses since a defendant ordered to pay restitution could introduce evidence that the victim had already collected some or all of that restitution from a defendant in a different case.
[T]he fact that Congress drafted the statute to require defendants to reimburse victims for “the full amount” of their losses reflects the policy judgment that child victims should be fully compensated for their losses in the most efficient manner possible; defendants, rather than child victims, should bear the responsibility of filing additional lawsuits against other responsible parties in order to apportion responsibility among them.
Both Congress and the courts are familiar with this approach of shifting responsibility for apportionment to defendants, as this is essentially the same approach used in CERCLA litigation.
This interpretation not only reflects the plain language of the statute, but also embraces the sensible policy choice that the responsibility for potentially burdensome litigation should fall on people who commit crimes against children, rather than on those children.
(emphasis added)
In a statement about the decision, Marsh Law Firm partner James R. Marsh, who helped write the brief in this case, declared:
]]>While we are disappointed by the majority's reflexive rejection of full restitution for victims of child pornography, we are heartened by the dissent's commonsense approach and sensitivity to the multifarious challenges facing victims of child pornography.
For every wrong there must be a remedy; the law must not serve as a prophylactic barrier to achieving justice. Congress clearly wanted child victims to be fully and fairly compensated by convicted child molesters and pedophiles. The battle for full restition for child pornography victims will continue with the Dissent's and Fifth Circuit's veracious exegesis as our unimpeached polestar.
They conclude that many factors may increase a youth’s risk of suicide—including mental health history, family history of suicide or child maltreatment, alcohol and substance abuse, and isolation—and caution against assuming there are “simple” causes for suicidal thoughts or behavior.
Check out the post here.
The series includes a public awareness video in which victims discuss the effects of the violence and trauma they experienced; and three topic-specific videos detailing evidence-based treatment, child advocacy strategies, and community-based approaches to help those affected.
Visit http://www.ovc.gov/pubs/ThroughOurEyes/index.html for details.
]]>Oregon is one of the states which recently enacted child abuse reporting legislation. It added to the list of mandated reporters any employee or volunteer of organization providing child-related services or activities, any employee of a higher education institution, and any coach, assistant coach or trainer of child athlete and individual who provides guidance, instruction or training in youth development activities and youth camps.
Overlooked in the wake of this new awareness is the sad reality of false allegations of child abuse. There is no disputing that child abuse is a serious and pervasive worldwide problem. 2 In most situations, abuse allegations are made responsibly, based on actual abuse. Sometimes they are not.
To address this concern, Oregon also passed legislation regarding the false reporting of child abuse. The law 3 reads:
(1) A person commits the offense of making a false report of child abuse if, with the intent to influence a custody, parenting time, visitation or child support decision, the person:
(a) Makes a false report of child abuse to the Department of Human Services or a law enforcement agency, knowing that the report is false; or
(b) With the intent that a public or private official make a report of child abuse to the Department of Human Services or a law enforcement agency, makes a false report of child abuse to the public or private official, knowing that the report is false.
(2) Making a false report of child abuse is a Class A violation.”
In fact, most states 4 have similar statutes. For instance, Arkansas 5 provides that:
“(a) A person commits the offense of making a false report under this chapter if he or she purposely makes a report containing a false allegation to the Child Abuse Hotline knowing the allegation to be false.
(b) (1) A first offense of making a false report under this chapter is a Class A misdemeanor. (2) A subsequent offense of making a false report under this chapter is a Class D felony.”
Colorado 6 provides that “No person … shall knowingly make a false report of abuse or neglect to a county department or local law enforcement agency. Any person who willfully violates the provisions …commits a class 3 misdemeanor and shall be punished … [and] shall be liable for damages proximately caused thereby.”
The repercussions of false abuse allegations are traumatizing and stigmatizing to the child allegedly abused. The child may have to undergo unnecessary psychological and medical examinations. And commonly, rifts between the child and his or her parents and siblings may develop. In the divorce and custody context, an accusation of child abuse may begin in family court, but it can quickly wind up in civil, criminal, and juvenile courts.
When child abuse allegations are true, CPS must do everything possible to protect the child. When false accusations are made, the accused individual's morally upright reputation can be permanently damaged. CPS workers know that abuse allegations are difficult to prove. Learning to decipher false allegations from real ones is a demanding and perpetual challenge. In either case, they can lead to protracted and difficult legal battles.
1 http://www.ncsl.org/issues-research/human-services/2012-child-abuse-mandatory-reporting-bills.aspx
2 See e.g. Lalor, K. & McElvaney, R. (2010). Child sexual abuse, links to later sexual exploitation/high risk sexual behavior and prevention/treatment programmes. Trauma, Violence and Abuse, (11), 159-177.
4 AR, CA, CO, CT, DE, DC, FL, GA, HI, ID, IL, IN, IA, KS, KY, LA, ME, MA, MI, MN, MO, MT, NE, NY, ND, OH, OK, OR, PA, RI, SC, TN, TX, VI, WA, WY. A summary of state laws regarding penalties for the failure to report and false reporting of child abuse, written by the Child Welfare Information Gateway, is available at https://www.childwelfare.gov/systemwide/laws_policies/statutes/report.cfm.
5 Title 12, Subtitle 2, Chapter 18, Subchapter 2, § 12-18-203.
6 CRS Title 19, Article 3, Part 3, § 19-3-304.
Daniel Pollack is a professor at Yeshiva University’s School of Social Work in New York City and a frequent expert witness in child welfare cases. He can be reached at dpollack@yu.edu. This article originally appeared in Policy & Practice, 71(1), 30 (2013).
]]>The Court held that the child pornography restitution statute contains both a cause-in-fact requirement—i.e., a showing that the defendant's conduct actually caused the victim's losses—and and a requirement that the cause be proximate.
The Court found that "the statute still allows victims to collect more restitution than under earlier and concurrent restitution statutes. The statute expands the definition of victims and the categories of losses for which victims can receive restitution and makes restitution mandatory. In addition, the list of recoverable losses that the statute provides confirms the breadth of what is a foreseeable consequence of defendants' actions."
The Court concluded that "a proximate cause showing is necessary for restitution awards under § 2259, meaning the losses must be both “directly attributable” to the defendant's offense, and “reasonably foreseeable.”
The Court then considered joint and several liability:
The question of joint and several liability is in a sense distinct from that of proximate causation, because if the injuries for which Vicky seeks restitution were caused in fact by the defendants, most of the types of damages she seeks are proximate, as the term is explained in the previous section. The question of joint and several liability bears some relation to whether the causation is proximate, however, because one of the policy strands in the proximate cause analysis is the avoidance of unlimited liability for a single action. Even when an action is the cause in fact of damage, like a cow's kicking a lantern causing the Great Chicago Fire, not all of the subsequent devastation was proximately caused by such an action. Courts have historically limited liability in such situations.
In it's discussion of joint and several liability, the Court explained that:
The statute provides that defendants should pay “the full amount of the victim's losses.” 18 U.S.C. § 2259(b)(1). We have already explained that this language refers to losses that were proximately caused by the defendant's conduct, but the language does not foreclose joint and several liability for those losses proximately caused by a defendant's conduct combined with that of others."
It concluded that "an apportionment system that spreads the effect of the penal goals of deterrence, retribution, and rehabilitation among the many convicted consumers of child pornography, while leading ultimately to the goal of full compensation for caused injury, fulfills the public purposes of restitution."
The dissent found that "that some kind of apportionment approach is in order." It rejected the "arbitrary" approach devised by the Government and recommended that liability be assigned "in terms of the defendant's comparative moral fault."
James R. Marsh, partner at Marsh Law Firm, who assisted with the brief in this case, issued the following reaction to the decision:
We are disappointed with this muddled and confusing decision which hearkens back to none other than the Palsgraf case in a desperate attempt to add some insight to the struggle for meaningful restitution for victims of child pornography. While we appreciate the Court's good faith effort here, we don't think either a resurrected Palsgraf or an appeal to moral law is the best or even necessary approach.
Ten judges in the Fifth Circuit outlined a clear and thoughtful solution to restitution in these cases. It would have been nice for the Sixth Circuit to have adopted that approach or at least critiqued it. Dusty arcane legal theories should be rejected for the simple plain meaning directed by Congress and ratified by the Fifth Circuit.
There are currently three pending petitions for certiorari to the United States Supreme Court on this issue. Marsh Law Firm is participating in all these cases. The Court is expected to consider the issue of restitution for child pornography victims in the term beginning on October 1, 2013.
For more information about the Marsh Law Firm's pioneering work for victims of child sex abuse, child pornography and child exploitation, read The Price of a Stolen Childhood in the New York Times Magazine and Should Those Who Download Child Pornography Pay the Victims? in the American Bar Association Journal.
For more information about the Fifth Circuit's landmark decision, read Fifth Circuit Endorses Full Restitution for Child Pornography Victims.
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