Sixth Circuit Rejects Commonsense Approach to Child Pornography Restitution

Last week, the Sixth Circuit issued this confusing decision on child pornography restitution in the combined cases of United States v. James D. Gamble and Shawn Crawford.

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.

This entry was posted in Child Pornography, Legal Decisions, Restitution on by .

About James R. Marsh

A graduate of the University of Michigan Law School and its acclaimed Child Advocacy Law Clinic, James represents victims of sex abuse in schools, colleges, churches, foster care, and government and military institutions; online sexual exploitation; sexting; child pornography; child trafficking; sextortion; and revenge porn. He is an experienced trial attorney and frequent commentator and author on legal issues affecting children. James founded the nationally recognized Children’s Law Center in Washington, DC and currently serve as co-chair of its emeritus board.

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