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If you're awake and you've been following this blog for any length of time, your probably know that during the past two years, victims of child pornography (represented by the Marsh Law Firm and pioneering attorneys Paul G. Cassell and Carol L. Hepburn ) have been seeking restitution in federal courts throughout the country.

Using a long forgotten passage in the Violence Against Women Act championed by then-Senator Joe Biden in 1994, child sex abuse victims are asking federal judges to award the mandatory restitution guaranteed by this law.

Unfortunately, the Justice Department has abandoned victims of child pornography on appeal by advancing a legal standard which the courts consider unworkable. The Justice Department's position is effectively preventing hundreds of child victims from receiving any money from the tens of thousands of child molesters and pedophiles who collect and trade child sex abuse images.

In October, the Justice Department filed a Supreme Court brief opposing child exploitation victims. Last month, the Justice Department asked the Sixth Circuit Court of Appeals to nullify a court-ordered million dollar award to a child sex abuse victim, arguing that the legal standard which resulted in the award is too easy.

Why is the Justice Department arguing for something which the courts of appeal say is unworkable and un-provable, while victims of child exploitation are left with nothing?

Now, just last week, the Fifth Circuit Court of Appeals—at the Justice Department's urging—decided to reconsider a landmark decision in favor of victims of child pornography. The Justice Department has one more chance to do the right thing and support victims of child exploitation.

Please tell President Obama's political appointee to the Department of Justice Criminal Division, Lanny A. Breuer, to side with the victim in In re: Amy Unknown in the Fifth Circuit.

When Justice Department attorneys refused to even sit with Amy at last year's oral argument before the Fifth Circuit Court of Appeals in New Orleans, Chief Judge Edith Jones proclaimed:

"What I don't understand is why the government has switched sides. They were on Amy's side in the trial court, were they not? I'm not sure how they can switch sides now and say that the statute doesn't entitle her to relief. That seems very—if not duplicitous—very strange to me. And it's also in derogation of the obvious intent of that provision of the statute."

Amy and child victims like her need your help. Hundreds of victims are effectively shut-out of the federal courts by the Justice Department's wrongheaded policy.

Almost 20 years ago, then-Senator Joe Biden promised child victims that they would receive full restitution from criminals convicted of child exploitation. Ironically, Vice President Biden's own Justice Department is failing to live up to his vision in the Violence Against Women's Act.

You can help awaken the Justice Department lawyers in Washington with just a few clicks. Amy thanks everyone for their continued support. You can make a difference in her fight for justice!

For more information on this issue, visit http://www.childlaw.us/restitution/

Last week the United States Supreme Court ignored the extraordinary pleas of three nationally recognized child advocacy groups and granted the Justice Department's request to dismiss a child sex abuse victim's appeal for criminal restitution.

The case now returns to the district court which must follow the DC Circuit's holding that the victim in this case, Amy, does not have a clear and indisputable right to full restitution, but must instead trace precisely how her losses were “proximately” caused by each of the thousands of child molesters and pedophiles who collect and trade her child sex abuse images.

The Supreme Court's rejection means that a child pornography victim's right to criminal restitution in the federal courts will continue to be limited and denied in sixteen states and territories, including California, New York and Washington, DC. Only in the Fifth Circuit—encompassing the states of Texas, Louisiana and Mississippi—is restitution still mandatory.

The Court's denial—and the Justice Department's stubborn refusal to abandon a legal standard which the influential Ninth Circuit concluded "present[s] serious obstacles for victims seeking restitution in these sorts of cases"—leaves child sex abuse victims like Amy with scant chance for justice in the federal courts.

Pedophiles, child molesters and the Justice Department are likely to seize on the high court's rejection as a sign that criminal restitution for child sex abuse victims is all but impossible in the federal courts except under the most egregious circumstances.

We continue to urge everyone to Make a Difference and ask the Justice Department to stop siding with convicted child molesters and pedophiles instead of child sex abuse victims!

Just go to http://bit.ly/ChangeJustice for full details on how you can help.

For the complete background on this issue, visit http://www.childlaw.us/restitution/.

When Justice Department attorneys refused to even sit with the child sex abuse victim at last year's oral argument before the Fifth Circuit Court of Appeals in New Orleans, Chief Judge Edith Jones proclaimed:

"What I don't understand is why the government has switched sides. They were on Amy's side in the trial court, were they not? I'm not sure how they can switch sides now and say that the statute doesn't entitle her to relief. That seems very—if not duplicitous—very strange to me. And it's also in derogation of the obvious intent of that provision of the statute."

Now, over a year later, the Justice Department has done the exact same thing again in the Sixth Circuit. Only this time they are asking the Court of Appeals to nullify a court-ordered million dollar award to a child sex abuse victim.

Why is the Obama Justice Department siding with convicted child molesters and pedophiles instead of child sex abuse victims?

In response to this shameful position, the Marsh Law Firm has joined forces with lawyers for the victim in this case and requested immediate intervention in the Sixth Circuit Court of Appeals to defend the million dollar judgment which was abandoned by the government on appeal.

The child sex abuse victim in this case, Vicky, is represented by Seattle attorney Carol L. Hepburn, who declared:

"It's bad enough that we so often have to fight child molesters and pedophiles all over the country just to get some measure of restitution for the victim. Now we have to fight the government too. Unfortunately the government has turned on us in one of the few cases where we won something significant which would really make a difference in my client's life. I just don't understand why the government is deciding to flip-flop and now go against the victim in these cases."

According to crime victims’ rights advocate Paul Cassell, a former federal judge who is currently a law professor at the S.J. Quinney College of Law at University of Utah (and who also represents Vicky on appeal on a pro bono basis):

"It is unconscionable that the government would abandon a child victim on appeal without any notice or a chance to respond. We only found out about this appeal by accident. If we hadn't intervened, no one would have protected this substantial award before the Court of Appeals. Who could have imagined that the government—which worked so hard at the trial court to obtain this award—would suddenly and without warning switch sides before the Sixth Circuit? The Justice Department simply forgot about the child victim when it filed its appeal pleadings."

Marsh Law Firm partner, James R. Marsh, emphasized that the legal fight for child sex abuse victims will continue whenever and wherever necessary:

"The Department of Justice has fought against us in the Fifth Circuit, the District of Columbia Circuit, the Supreme Court and now the Sixth Circuit. Apparently the decision to abandon child sex abuse victims is being made by lifelong apparatchiks who haven't left Washington in a long, long time. This kind of stupidity is one reason why the American people have such distrust and cynicism in our government right now. It defies any sense of common decency that some government lawyer in Washington, DC would think it's a good idea to expend taxpayer dollars to fight against the interests of child sex abuse victims everywhere in the country."

Marsh exclaimed:

"At a time when Penn State has incited international indignity, it's outrageous that the federal government is marshaling every effort to deny child sex abuse victims criminal restitution which was a central part of the law championed by the Administration's own Vice President Biden as part of his landmark 1994 Violence Against Women's Act. Now that the Senate is holding hearings on how well the nation is protecting children from abuse and neglect, they should start by asking why their own Justice Department is siding with convicted child molesters and pedophiles against the interests of child sex abuse victims."

Click here to Make a Difference on this issue!

On September 8, 2011, the Second Circuit dealt a blow to victims of child pornography who had been seeking broad relief under a federal criminal statute authorizing restitution. In United States v. Aumais, Docket No. 10-3160 (Sept. 8, 2011), the New York federal appeals court reversed a restitution order of nearly $50,000 assessed in favor of a victim of child porn against a possessor of the images, holding that proximate cause was lacking, without which such damages could not be imposed.

In issuing this decision, the Second Circuit agreed with the result reached by a number of other Circuit Courts and disagreed with the Fifth Circuit. A petition for certiorari to the United States Supreme Court is currently pending in a similar case. This is an issue that cries out for Supreme Court resolution, and we very much hope that the Supreme Court will step in to provide clarity to the victims, perpetrators and others in this highly charged and important arena.

Recent Expansion of Restitution Claims

The United States Supreme Court has held that distribution of child pornography is “intrinsically related to the sexual abuse of children” because, among other things, “the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.” New York v. Ferber, 458 U.S. 747, 759 (1982). Once the acts are recorded, “the pornography may haunt [the child] in future years, long after the original misdeed took place.” 458 U.S. at 759 n.10.

Commencing in about 2009, victims of child pornography started filing claims of restitution under 18 U.S.C. § 2259, the federal “child pornography restitution statute”, as part of criminal cases against transporters, distributors or possessors of the images. Since that time, abuse victims have sought millions of dollars in restitution damages from the sellers or users of the child pornography.

One of the victims, known under the pseudonym “Amy”, has submitted almost 700 federal criminal restitution requests in pornography cases, seeking more than $3 million. According to the New York Times, Amy has already recovered nearly $350,000.

Under the child pornography restitution statute, Section 2259(a) directs courts to order restitution for any offense under the chapter which, among other things, makes it a criminal offense to possess child pornography images. Section 2259(b)(1) provides that the order of restitution shall direct the defendant to pay the victim the “full amount of the victim’s losses” as determined by the court. Section 2259(b)(3) provides that the “full amount of the victim’s losses” includes any costs incurred by the victim for:

(A) medical services relating to the physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorney’s fees, as well as other costs incurred; and
(F) any other losses suffered by the victims as a proximate result of the offense.

§ 2259(b)(3)(A)-(F). The issuance of a restitution order is “mandatory”, and a court may not decline to issue a restitution order because of the defendant’s economic circumstances or the fact that the victim has received or is entitled to receive compensation for his or her injuries from the proceeds of insurance or any other source. § 2259(b)(4).

Victims have sought to use the restitution statute to hold each defendant responsible for the “full amount of the victim’s losses”, alleging that the statutory requirement that the losses be proximately caused by the defendant applies only to Section 2259(b)(3)(F) and not to other specified losses.

The Fifth Circuit has agreed with the victims, noting that the structure and language of Section 2259(b) imposes a proximate cause requirement only on miscellaneous “other losses” for which restitution may be sought. In re Amy Unknown, 636 F.3d 190, 198 (5th Cir. 2011). Other courts have disagreed, looking to traditional principles of tort and criminal law or providing different interpretations of the statutory language. E.g., United States v. Monzel, 641 F.3d 528 (D.C. Cir.), petition for certiorari filed, 80 USLW 3059 (July 15, 2011); United States v. McDaniel, 631 F.3d 1204 (11th Cir. 20110).

There are also state statutes which require mandatory restitution to child pornography victims. Under a recently enacted statute in Virginia, a man convicted of child pornography distribution was ordered to pay $1000 to each of the victims.

The Aumais Decision

In Aumais, defendant Gerald Aumais pled guilty to transporting and possessing child pornography in violation of 18 U.S.C. § 2252(a)(1) and (a)(5)(b). The district court sentenced him to 121 months in prison and ordered him, pursuant to § 2259, to pay $48,483 in restitution for future counseling costs to Amy, who was one of the victims in the images and videos. Aumais appealed the restitution order, alleging that his possession did not proximately cause Amy’s loss.

In her Victim Impact Statement, Amy said she was unable to forget the abuse by her uncle (who took the pictures) because the “disgusting images of what he did to [her] are still out there on the internet.” She said she lives in fear that she will be recognized and be “humiliated all over again.” The district court referred the issue of restitution to a magistrate judge who conducted an evidentiary hearing.

An expert witness for the Government testified at trial that Amy experienced emotional and psychological problems from learning that her images were still being viewed, biting her nails to the point of bleeding, drinking alcohol, and becoming unable to complete college. The expert further testified that Aumais represented “one component” of damages, recommended that Amy receive therapy once a week, and stated that Amy might need three courses of inpatient treatment during her life to address her alcoholism.

Based on the Victim Impact Statement and the expert testimony, the magistrate judge found that, even though Amy had no contact with or knowledge of Aumais, his possession of her images exacerbated the harm to Amy by creating a market for distribution and by inflicting humiliation on her by a group of consumers, of which Aumais was one. The magistrate judge found that Aumais had caused the need for weekly counseling sessions in the next five years and monthly counseling sessions for five years thereafter, the cost of which was discounted to present value. The magistrate judge also held that Aumais was responsible for the full amount and that it was a question of administration by the government to prevent excess recovery. The district court adopted the magistrate judge’s report and recommendation, and Aumais appealed.

On appeal, the Second Circuit reviewed the language of Section 2259, determined that Amy was a victim under the statute, and noted that a Circuit split had developed on the issue of whether the Government must show that a victim’s losses under Section 2259 were proximately caused by the defendant’s actions, or whether it was enough to show causation more generally.

The Second Circuit noted that Amy had no contact with or knowledge of Aumais, that the expert witness evaluation of Amy occurred before Aumais’ arrest, and the absence of evidence linking Aumais’ possession to any loss suffered by Amy. And, the court expressed concern as to the “baffling” and “intractable” issue presented by this case regarding damages and joint and several liability since, among other things, there was no showing that Aumais was responsible for all of the losses which counseling would address.

Request for the Supreme Court to Resolve the Issue

Meanwhile, on July 15, 2011, a petition for a writ of certiorari was filed in the Monzel case. According to the petition, the Circuits are “plainly split on the frequently recurring and ‘difficult’ question of how to interpret the child pornography statute”, and the “lower courts are unlikely to coalesce around any common approach without guidance” from the Supreme Court.

According to Paul G. Cassell, a former federal judge and Utah law professor who co-authored the certiorari petition and authored “Victims in Criminal Procedure”, “We are hoping the Supreme Court will step in to resolve the issue and enforce the law as we think it was written — and not impose this impossible burden on crime victims to trace out to each and every defendant what exact percentage of the law was attributable to them.”

There are conflicting Circuit decisions, and the rationales are not consistent, rendering Supreme Court resolution particularly appropriate. Whether the Supreme Court is willing to address this important issue and provide the clarity and consistency that is needed, remains to be seen.

By Jennifer Freeman of Freeman Lewis LLP. For some three decades, Ms. Freeman has stood for women in the area of employment law and other issues relating to women's rights.

About Freeman Lewis LLP

Freeman Lewis LLP is a boutique business dispute resolution firm, whose founders Jennifer Freeman and Robert Y. Lewis together have more than 50 years of experience assisting clients resolve business disputes through litigation, arbitration, mediation and negotiation. Their firm focuses on commercial litigation, employment law, securities arbitration, white-collar criminal, and ERISA. For more information, visit www.freemanlewis.com.

Last week, the Colorado Supreme Court ruled that the attorney-client privilege does not apply to conversations between guardians ad litem and the children they represent in child abuse, child welfare and custody cases. In Colorado, a guardian ad litem is an attorney appointed to represent a child who has been abused or neglected or is in foster care. They are also appointed for children are accused of crimes or involved in a custody fight.

In a very controversial 5-2 decision, the Court held that “because a child who is the subject of a dependency and neglect proceeding is not the client of a court-appointed guardian ad litem, neither the statutory attorney-client privilege nor ethical rules governing an attorney’s obligations of confidentiality to a client strictly apply to communications by the child.”

Justice Nathan Coats, writing for the majority, found that a guardian ad litem does not represent litigants on opposite sides of a case “or even the demands or wishes of the child. … The guardian ad litem is statutorily tasked with assessing and making recommendations to the court concerning the best interests of the child.”

The underlying case, People v. Gabriesheski, involved a man criminally charged with abusing his step-daughter. While that case was pending, the department of human services filed a case in juvenile court and an attorney was appointed as guardian ad litem to represent the child victim. During the criminal case, the prosecutors attempted to call the GAL to testify about her private conversations with the victim. Both lower courts held that the conversations between the victim and her GAL were protected by attorney-client privilege.

The Supreme Court reversed, basing its decision on the duty of a child's attorney to protect his or her client from abuse; a lawyer acting as a guardian ad litem is supposed to help the court act in the child's best interest even if the child doesn't want the lawyer to reveal information.

The dissent wrote that “the majority's decision deprives children of the right to legal representation. … the impact of this decision will have devastating effects on the ability of guardians ad litem to fully represent the best interests of children in dependency and neglect proceedings. Because children will no longer have the protection of the attorney-client privilege, guardians ad litem will be required to disclose information about their wards even when it is not in the child's best interests to do so. This outcome, which appears to be based on a generalization that a child is incapable of being involved in the legal process, is at odds with a child's fundamental right to be represented in court, and fails to protect the legal rights of children.”

The Rocky Mountain Children’s Law Center, a nonprofit organization that provides legal advocacy for abused and neglected children in Colorado, stated that “this decision denies children in the Colorado child protection system effective legal representation by depriving them of the opportunity to have confidential conversations with the attorneys appointed to protect their best interests. The Colorado Supreme Court has decided that abused children are not entitled to one of the most basic benefits of legal representation, which is having a trusting, confidential relationship with an attorney.”

Jeff Koy, the director of litigation of the Children’s Law Center, who has served as a court-appointed GAL for more than 12 years, argued in this case that conversations between GALs and children should be protected. “Children have a right to be in a safe home and receive the treatment services they need. GALs are charged with ensuring that children are provided these protections. To do this effectively, children must be able to trust us,” said Koy. “They have to be able to confide in us about where they feel safe and what happened to them without fear of having their confidences betrayed. Otherwise, the very people who abused them may learn what the child said.”

“The children we represent have often been through horrific abuse before landing in state care,” Koy said. “They need someone to confide in. Until today, that person was their GAL.”

The old adage “hard cases make bad law” rings especially true in this case. As a longtime victim's advocate and even longer-time children's advocate, the tension between what's best for your client and what should be done to keep your client healthy and safe thankfully does not often conflict. When it does, however, the implications can be far-reaching.

Many years ago I represented an eleven year old child in exactly the same situation. After an immigrant girl was removed from her home for alleged physical abuse, I was appointed as her “law guardian.” At that time the GAL role was ill-defined and unclear. My client denied the abuse and wanted desperately to return to her family.

When the judge asked me for my recommendation, I stated emphatically that my client wanted to return home. When pressed further, I informed that court that I was not personally or professionally taking a position on whether or not she should return home, but instead informing the court of my client's expressed wishes. I explained that I had interviewed my client, her teachers and family friends; that my client was mature enough to have a position; that she understood the consequences of her decision; that she expressed her wishes to me clearly and repeatedly; that I was my client's only voice in the court system and felt compelled to advocate for her expressed wishes and not her “best interests.”

Reluctantly, the court turned to the child welfare agency which was unable to substantiate any of the abuse charges and the case was dismissed allowing my client to return home.

I'm not sure how I would have handled the case if my client told me she was being abused. Understanding what I now know about victims, I can appreciate the fact that children rarely disclose physical and sexual abuse and when they do they should be believed.

When children do disclose such things to their attorney-GAL, there are legitimate and ethical ways to address any real or perceived conflict. The child's attorney can ask that a GAL be appointed to represent the child's best interest. The child's attorney can ask the court to permit withdrawal based on “irreconcilable differences” which make the attorney-client relationship is unsustainable. The child's attorney can counsel the client to an end result which keeps the client safe and preserves confidences.

What makes this case so unsettling is that the Colorado Supreme Court is directly requesting that an attorney reveal client confidences. This case is not about a “recommendation” or a request for “the child's best interest.” It is a direct invasion into the relationship between the child and her attorney. It goes far beyond defining the role of an attorney-GAL to assaulting the very foundation of the now non-existent attorney-client relationship.

The Colorado Supreme Court's decision strips a child from ANY advocate in the court system. It applies not only to sexual abuses cases, but to all cases involving a child including custody, child welfare and even criminal cases. Imagine a juvenile delinquency case in which the prosecutor can force the child's attorney to testify against his or her client. Imagine a child custody case in which a parent can force a child's GAL to testify about which parent the child prefers.

The Court's decision here has far-reaching implications. It was ill-advised, ill-conceived and vastly over-broad. In solving one perceived problem (after all, we don't know that the child client in this case told her attorney anything about the sexual abuse), it creates an untold number of complications with the end-result that children in the Colorado court system no longer have reliable advocates or an unconstrained voice.

This article discusses the Marsh Law Firm's pioneering work to secure criminal restitution for our client Amy. It appeared in the National Center for Prosecution of Child Abuse Update earlier this year, before our appeal to the United States Supreme Court. The NCPCA Update can be downloaded in full here.

by Angela Downes, Meg Garvin, Wanda Lucibello, Alison Wilkinson, Terry Campos, and Hon. Paul Cassell²

Amy was only four years old when her uncle sexually assaulted her and documented that assault through photographs. Although the assault took place in 1993, now nearly 20 years later those photographs continue to circulate on the Internet and are among the most actively traded child abuse images known to law enforcement. These horrific images continue to haunt Amy; in her own words:

There is a lot I don’t remember [about the abuse], but now I can’t forget, because the disgusting images of what he did to me are still out there on the Internet. Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again.³

What Amy so powerfully conveys is what nearly every victim of this type of abuse suffers; they live in constant fear that even as they make a quick run to the grocery store, as they step into a job interview, or as they walk down the street, someone will recognize them from the horrific images in circulation. Unlike the physical abuse, this fear never stops. As Amy has said to courts nationwide, “[i]t’s like I’m being abused over and over and over again.”⁴

The images at issue are often labeled “child pornography.” While this term is widely accepted it dilutes the graphic content of the images—sexual and physical assaults on a child. Consequently, a more apt term is “child abuse imagery.” Legislators and courts have long recognized that children depicted in such images are harmed not only by the sexual exploitation involved in creating the images, but also by the distribution, possession, and viewing of their sexual abuse.⁵ This recognition is supported by social science research.⁶ Legislators and courts have similarly recognized the importance of awarding restitution to victims who are harmed by crime to help make them whole, and to aid their recovery.⁷

Thus, it seems reasonable that children depicted in child abuse images should be awarded restitution from their offender(s), including offenders who possess and view images of their abuse.

Despite the logic, justness, and legality of affording restitution to these victims,⁸ over the last several years the right of these victims to full restitution has become a contested issue in the federal district courts.⁹ Some courts refuse to afford any restitution, others award de minimus restitution, and another awarded the full amount of requested restitution in excess of $3,000,000.¹⁰ The different outcomes can be attributed in significant part to varied legal interpretations of the governing statute, 18 U.S.C. § 2259, and causation.

While Amy and other similarly situated victims can never be brought back to the lives they lived before their abuse, or before the images of their abuse became a staple of the online industry, attorneys can nonetheless go a long way in helping them by securing adequate restitution for them in the courts. To help practitioners aid victim recovery, this article provides a brief overview of the current state of the law, identifies key issues at play in the courts, and suggests some practices to employ in representation of these victims.

Last week, the Solicitor General filed this brief with the United States Supreme Court which effectively denies child victims the ability to obtain criminal restitution from the thousands of child molesters and pedophiles who collect and share child pornography.

The defendant in the case currently pending before the Supreme Court, Amy v. Monzel, admitted to law enforcement that he sexually abused his granddaughter and traded images of girls being sexually abused. A search of his home uncovered more than 800 child sex abuse images including pictures of Amy, the victim in this case. The defendant pleaded guilty to distributing child pornography and was sentenced to 10 years in prison.

The District court ordered the defendant to pay just $5000 in criminal restitution to Amy, a girl whose rape and sexual abuse images were found in his collection. That award was overturned on appeal. Amy then appealed to the Supreme Court where three amici joined her in asking the Court to take the case.

Despite supporting the victims in the lower courts, the government abandoned victims of child pornography at the Supreme Court by asking the Court not to review the Court of Appeals’ denial of restitution. The Solicitor General's position on this issue effectively strips victims of child pornography the ability to obtain criminal restitution from any of the thousands of child molesters and pedophiles who collect and share their child sex abuse images.

The Solicitor General is essentially asking the Supreme Court to uphold a standard of proof that government cannot meet. During the past two years, the government has failed in hundreds of cases throughout the country to convince federal judges that the standard they are now defending in the Supreme Court will result in any restitution for victims of child pornography. In July, the government lost this case in the Ninth Circuit on just this issue and decided not to appeal to the Supreme Court.

Victims of child pornography deserve their day in court. Three amicus filed briefs in the Supreme Court supporting this basic right, highlighting the importance of this issue for children who are sexually abused and exploited through child pornography.

As a candidate in 2008, President Obama supported the death penalty for defendants convicted of raping a child. Now the Solicitor General is promoting a standard which will save some of these same defendants from paying restitution to their victims. While millionaire child molesters are housed in government prisons at taxpayer expense, child sex abuse victims like Amy must rely on public assistance and charity to take care of their most basic needs.

When Congress—led by then Senator and now Vice President Biden—passed the child pornography restitution statute in 1994, it made restitution mandatory for victims. In fact, Congress felt so strongly that every child pornography victim receive the “full amount” of their losses that it used the word mandatory twice in the statute. Despite this clear requirement, federal courts throughout the country are confused and their often arbitrary approaches have led to widely differing outcomes for victims. A deepening split among the Courts of Appeals and the district courts require a decisive decision and direction that only the Supreme Court can provide.

Only the Supreme Court can conclusively guarantee a child pornography victim's right to restitution. Justice delayed is justice denied. Victims of child pornography have waited and suffered long enough.

Two years ago, the Marsh Law Firm filed the first-ever request for federal criminal restitution against a convicted child pornography collector. Since then, we have filed over 700 requests for restitution in every federal district court in the country.

Despite a few decisive victories, a child pornography victim's right to restitution is being curtailed in circuit after circuit. Recent federal Circuit Court decisions have effectively barred restitution in the Second and Ninth Circuit and the District of Columbia Circuit. Only in the Fifth Circuit—encompassing the states of Texas, Louisiana and Mississippi—is restitution still mandatory.

When Congress passed the child pornography restitution statute in 1994, it made restitution mandatory for victims. In fact, Congress felt so strongly that every child pornography victim receive the “full amount” of their losses that it used the word mandatory twice in the statute. Despite this clear requirement, many federal courts have sought to limit the amount that convicted child pornography collectors pay their victims by forcing victims to prove precisely how much each individual defendant injured them.

The federal district courts are also severely divided on how to interpret the child pornography restitution statute. Some district courts have held that victims seeking restitution need not establish proximate cause. Other district courts have read a general proximate cause requirement into the statute and then concluded that proximate cause was not established.

Still other district courts read a general proximate cause requirement (or in some courts simply “causation”) into the statute and then find that the victim provided sufficient proof to obtain at least some restitution. The approaches are often arbitrary and have led to widely differing outcomes. For example, a few district courts have awarded “nominal” restitution in an arbitrary amount, sometimes as low as $100.

The Fifth Circuit got it right in March when it found that “[c]ourts are required to award victims of child sex abuse ‘the full amount of the victim’s losses.’” It held that “Congress abandoned the proximate causation language that would have reached all categories of harm … This change is consistent with the reasons for enacting a second generation of restitution statutes. The evolution in victims’ rights statutes demonstrates Congress’s choice to abandon a global requirement of proximate causation.”

Last month, in an effort to restore a child pornography victim's rapidly eroding right to restitution, the Marsh Law Firm filed a Petition for a Writ of Certiorari in the United States Supreme Court. Only the Supreme Court can conclusively resolve this issue and guarantee a victim's right to restitution under the child pornography restitution statute. A deepening split amongst the federal circuits and the district courts require a decisive decision and direction that only the Supreme Court can provide.

A coalition of child advocates recently filed three separate amicus briefs supporting our request for Supreme Court review. This rare occurrence will hopefully put the issue of child victim restitution squarely before the Court which is now considering whether or not to accept our case.

Thank you to all the amici who spent a significant amount of time and effort to get these uncommon amicus briefs filed during the summer months. Child victims are grateful for your tireless work on their behalf now and in the future.

Click on the links to read the briefs by the National Center for Missing and Exploited Children, the National Crime Victim Law Institute and the National Association to Protect Children.

The Marsh Law Firm's Petition for Cert is here.

Last month the New Jersey Supreme Court in Dept of Children & Families, Div. of Youth & Family Servs. v. T.B. held that a finding of neglect was improperly entered against a mother who left her four-year-old child unsupervised for two hours under the mistaken belief that his grandmother was in the home.

Susan and her then four-year-old-son, John, were living with Susan’s mother, Mary, and step-father, Jim, who assisted in caring for John on a regular basis. Although Susan and John lived downstairs, the entire house was accessible to John and he moved freely to the upstairs portion of the home where his grandparents lived.

On Sunday, March 25, 2007, Susan and John returned home between 7:00 p.m. and 7:30 p.m. Susan immediately put John to bed and, with the belief that Mary was home, went to eat dinner with a friend. Susan believed that Mary was home sleeping because she saw Mary’s car in the driveway; Mary had been ill all week with the flu; Mary was always home on Sunday nights to prepare for work on Monday morning; and Jim worked on Sunday nights.

Mary, however, was not home because she and Jim took an impromptu trip to New York. Shortly after 9:00 p.m., John woke up and discovered that he was alone. He left the house, crossed the street, and told his neighbor that he could not find his mother. The police department was contacted. When Susan returned from dinner between 9:30 p.m. and 10:00 p.m. she was transported to the police station, where she gave a handwritten statement.

Mary and Jim returned from New York and attested to the impromptu nature of their trip and that Mary is always home on Sunday nights. No criminal charges were filed against Susan and the matter was turned over to DYFS.

DYFS substantiated the neglect allegation against Susan based upon inadequate supervision under New Jersey law.

Susan filed an appeal and the matter was referred to the Office of Administrative Law. After a hearing, the Administrative Law Judge (ALJ) recommended dismissal of the charges against Susan, concluding that DYFS did not prove by a preponderance of evidence that the physical, mental, or emotional condition of Susan’s child was impaired or was in imminent danger of becoming impaired as a result of her failure to exercise a minimum degree of care.

The DYFS Director rejected the ALJ’s decision and reinstated DYFS’s finding substantiating child neglect against Susan. The DYFS Director observed that Susan failed to take the cautionary actions of supervision that are expected and, although John was not harmed, the omission exposed him to a substantial risk of harm.

The Appellate Division affirmed. The Appellate Division was satisfied that sufficient credible evidence existed in the record to support the Director’s finding that Susan failed to exercise the minimum degree of care required under New Jersey law and concluded that Susan had placed John at substantial risk of harm by failing to ensure that her mother or step-father was at home before leaving the house.

The New Jersey Supreme Court granted Susan’s petition for certification.

The Court held that Susan did not fail to “exercise a minimum degree of care” under New Jersey law because her conduct did not rise to the level of gross negligence or recklessness. Therefore, her name must be removed from the Child Abuse Registry.

The Court explained that Susan’s conduct did not constitute a failure to “exercise a minimum degree of care.” Susan did not leave her son at home alone knowing there was no adult supervision.

Instead, Susan, who lived with her parents and is intimately familiar with the rhythms of their every-day-family-life, arrived at her home on a Sunday night and saw her mother’s car in the driveway. She knew that her mother was always home on Sunday nights and that her mother had been ill all week with the flu. Further, her mother and step-father attested that Susan’s mother is always home on Sunday nights and that the trip to New York was unexpected. What occurred was totally out of the ordinary.

The Court concluded that although Susan’s failure to perform the cautionary act of assuring her mother’s presence was clearly negligent, under all of the circumstances known to her it did not rise to the level of gross negligence or recklessness.

Last month a California state Court of Appeal ruled in In re Rolando S. that a teenage boy committed felony identity theft when he accessed a girl's account, altered her profile and posted obscene messages and comments.

The boy was one of several recipients of an unsolicited text message providing the password to the victim’s email account. He used the victim’s email and password to gain access to her Facebook account where he posted, in her name, the following messages:

On a male classmate’s wall: “I want to stick your dick in my mouth and then in my pussy and fuck me really hard and cum on my face.”

On another male classmate’s wall: “When we were dating we should have had sex. I always thought you had a cute dick, maybe we can have sex sometime.”

On the victim’s profile description: “Hey, Face Bookers, [sic] I’m [S.], a junior in high school and college, 17 years young, I want to be a pediatrician but I’m not sure where I want to go to college yet. I have high standards for myself and plan to meet them all. I love to suck dick.”

The victim found out about the messages and informed her father who removed the messages from her account and called the police. The boy admitted that he posted the messages and altered the victim's profile.

A juvenile petition was filed alleging one count of "willfully obtaining personal identifying information and using it for an unlawful purpose" in violation of California state law.

The boy was found guilty in juvenile court and sentenced to a juvenile academy for between 90 days and one year and placed on probation.

The boy argued that since he made no effort to obtain the password, instead passively receiving the text message on his cell phone “without his prior knowledge or consent,” he did not “willfully” obtain the victim’s email account password for purposes of the statute.

The Court of Appeal rejected this argument, holding that the boy "willfully obtained the victim’s password when he chose to remember the password from the text message, and later affirmatively used the password to gain access to the victim’s electronic accounts."

The boy next contended that his conduct failed to satisfy the second element; that he “use[d] [the victim’s] information for any unlawful purpose.” He reasoned that at most he “possibly defamed” the victim, but asserted that civil torts do not constitute an “unlawful purpose” for purposes of the statute.

The Court also rejected this argument explaining that intentional civil torts, such as libel, constitute an “unlawful purpose” for purposes of the statute.

The Court affirmed the juvenile court's sentence.

For years commentators and technology experts have bemoaned the lack of traditional legal remedies in the brave new world of The Internet. Now more and more courts are finding that good old legal theories such as theft, defamation and invasion of privacy can and do apply in the digital realm, if only judges and lawyers have the courage to apply them.

Today's New York Times contains an article about state child welfare investigations of parents who legally possess marijuana:

The police found about 10 grams of marijuana, or about a third of an ounce, when they searched Penelope Harris’s apartment in the Bronx last year. The amount was below the legal threshold for even a misdemeanor, and prosecutors declined to charge her. But Ms. Harris, a mother whose son and niece were home when she was briefly in custody, could hardly rest easy.

The police had reported her arrest to the state’s child welfare hot line, and city caseworkers quickly arrived and took the children away.

Her son, then 10, spent more than a week in foster care. Her niece, who was 8 and living with her as a foster child, was placed in another home and not returned by the foster care agency for more than a year. Ms. Harris, 31, had to weather a lengthy child neglect inquiry, though she had no criminal record and had never before been investigated by the child welfare authorities, Ms. Harris and her lawyer said.

“I felt like less of a parent, like I had failed my children,” Ms. Harris said. “It tore me up.”

Hundreds of New Yorkers who have been caught with small amounts of marijuana, or who have simply admitted to using it, have become ensnared in civil child neglect cases in recent years, though they did not face even the least of criminal charges, according to city records and defense lawyers. A small number of parents in these cases have even lost custody of their children.

New York City’s child welfare agency said that it was pursuing these cases for appropriate reasons, and that marijuana use by parents could often hint at other serious problems in the way they cared for their children.

Is this good case work or child protection overkill?

Now consider this. Yesterday, the Ninth Circuit Court of Appeals decided in Dougherty v. City of Covina that a warrant to search a suspected child molester's computer was illegal when the only evidence linking the suspect to possession of child pornography was the experience of the requesting police officer.

In other words, while NYC caseworkers have lawful authority to remove kids from parents who possess legal amounts of marijuana based solely on their training and experience, law enforcement officials cannot search the computers of suspected child molesters based solely on their training and experience.

Should child welfare case workers be governed by the same Fourth Amendment constraints as law enforcement officers? Should a case worker be allowed to search the computers of suspected child sex abusers without a warrant? Is searching a computer any different from searching a refrigerator and finding a small amount of marijuana?

A recently published article in the American Bar Association's Child Law Practice examines the potential effects of failing to preserve or produce evidence in the child welfare context. Best practices are offered from three perspectives—the plaintiff, the defending agency, and the court.

Litigation involving public and private social services agencies should make administrators and attorneys keenly aware of the obligation to preserve evidence. Across the country, torts regarding individual children in the child welfare system are common.

Professor Daniel Pollack and his co-author Associate Professor Dale Margolin explain that while lost records are common in child welfare torts, the issue has long been overlooked by litigators and courts. Recently, however, it is starting to receive attention. Attorneys and judges must be mindful of incomplete, altered, and destroyed case records. This includes taking preventative steps, while also being prepared to ask for evidentiary and other sanctions or pursuing separate tort actions when lost or destroyed records are harming a party.

Contact Professor Pollack by email for a copy of this timely in-depth article.