Current Restitution Law is Failing Child Pornography Victims
Legislators and courts have long recognized what common sense makes clear – children depicted in child abuse images are harmed not only by the sexual abuse captured by the images, but also by the subsequent distribution, possession, and viewing of the images of their abuse. 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 in their recovery. Thus, it seems a straightforward proposition that children depicted in child abuse images should be awarded restitution from their offenders, including those offenders who possess and view their abuse. In fact, this simple supposition seems to underpin the statute governing restitution in cases involving sexual exploitation.
Despite the logic, justness, and legality of affording restitution to the victims in child abuse images, federal courts differ greatly in their approach to the restitution rights of these victims in the context of possession cases. As discussed below, over the last year alone, courts have awarded these victims full restitution, partial restitution, di minimus restitution, or even no restitution at all. These differences in outcome can be attributed, at least in part, to varied legal interpretations of the governing restitution statute, 18 U.S.C. § 2259. This article provides a brief overview of the current state of the law, and suggests that a court-based or legislative solution is urgently needed to avoid further victimization of these victims.
Law Governing Restitution in Possession of Child Abuse Image Cases
Section 2259 of Title 18 of the United States Code governs restitution for offenses involving the sexual exploitation and other abuse of children. Section 2259 provides that a district court “shall order restitution for any offense under [the Sexual Exploitation and Other Abuse of Children Chapter of Title 18].” Possession of material depicting the sexual exploitation of children is an offense under the chapter to which Section 2259 applies. The use of the word “shall” makes awarding restitution to persons who meet the statute’s definition of “victim” mandatory under Section 2259.
Children Depicted in Child Abuse Images are “Victims” for the Purposes of § 2259
Section 2259 employs a broad definition of victim, providing that a “victim” is an “individual harmed as a result of a commission of a crime under [the Sexual Exploitation and Other Abuse of Children Chapter of Title 18].” This broad definition of “victim” stands in contrast to the narrower definition of “victim” contained in other federal restitution statutes. For instance, both the Victim Witness Protection Act and the Mandatory Victim Restitution Act define a “victim” to be a “person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered . . . .” Since neither the word “directly” nor “proximately” appear in Section 2259, according to the statute’s plain language, any “harm” resulting from a qualifying offense is sufficient to create victim status.
Courts have clearly determined that an offender’s possession of child abuse images harms the children depicted therein. The United States Supreme Court first acknowledged such harm in 1982 in New York v. Ferber. In Ferber, the Court upheld a New York
law that criminalized the promotion of child abuse images, finding that “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.” The Court also found that the distribution of child abuse images 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.” In reaching this conclusion, the Court noted:
Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography.
In 1998, the Fifth Circuit Court of Appeals expanded upon the Ferber Court’s analysis to find that “the children depicted in child pornography may be considered to be the victims of the crime of receiving child pornography.” The court then articulated three specific harms caused by possession of child abuse images:
First, the simple fact that the images have been disseminated perpetuates the abuse initiated by the producer of the materials. . . . The consumer who “merely” or “passively” receives or possesses child pornography directly contributes to the child’s continued victimization.
Second, the mere existence of the child pornography represents an invasion of the privacy of the child depicted. . . . The recipient of the child pornography obviously perpetuates the existence of the images received, and therefore the recipient may be considered to be invading the privacy of the children depicted, directly victimizing these children.
Third, the consumer of child pornography instigates the original production of child pornography by providing an economic motive for creating and distributing the materials. . . . The consumers of child pornography therefore victimize the children depicted in child pornography by enabling and supporting the continued production of child pornography, which entails continuous direct abuse and victimization of child subjects.
More recently, as discussed below, many federal courts have expressly found that, for the purposes of Section 2259, the possession of child abuse images harms the children depicted therein.
Congress has also recognized the harm caused by possession of child abuse images in a variety of contexts. In the Child Pornography Prevention Act of 1996, Congress found that “where children are used in its production, child pornography permanently records the victim’s abuse, and its continued existence causes the child victims of sexual abuse continuing harm by haunting those children in future years.” More recently, Congress addressed the harm of child pornography in the Adam Walsh Child Protection and Safety Act of 2006. In the legislative history of the Adam Walsh Act, Congress found that “[t]he illegal production, transportation, distribution, receipt, advertising, and possession of child pornography . . . is harmful to the physiological, emotional, and mental health of the children depicted in child pornography and has a substantial and detrimental effect on society as a whole.” Congress noted that “every instance of
viewing child pornography represents a renewed violation of the privacy of the victims and repetition of their abuse.”
As discussed above, Section 2259 requires only that an individual be “harmed as a result of a commission of a [qualifying crime]” to qualify as a “victim,” and further provides that all qualifying victims are entitled to mandatory restitution where the crime of conviction is possession of material depicting the sexual exploitation of children. The findings by courts and Congress make clear that children depicted in child abuse images are harmed not only by the production of such images, but by the distribution and possession of such images. Thus, these victims are entitled to mandatory restitution from their offender(s), including those individuals who possess and view images of their abuse.
The Restitution Analysis in Recent Possession Cases
Since July 2009, over a dozen federal district courts have grappled with the specific question of restitution owed to victims depicted in child abuse images when the crime at issue is possession. During this time, every court that reached the issue found that the victim depicted was harmed by the offender’s possession of the images depicting his or her abuse.
Despite their consistency in finding the requisite harm to the victims, these courts have split on how much restitution to award to the victims depicted in the images. Only one court has awarded the full restitution requested, while others have awarded partial restitution, di minimus restitution, or no restitution at all. The difference in outcome seems to mainly
turn on the courts’ causation analyses – meaning what offer of proof the court deems necessary to establish a causal connection between the defendant’s specific offense and the victim’s harm.
The one court that awarded full restitution relied on “credible and persuasive” expert testimony that the child depicted in the images was harmed by the possession and distribution of her images. With this finding of harm, the court held that the child was a “victim” under Section 2259, and was, pursuant to the statute, entitled to recover in restitution the full amount of her losses. The court then turned to the calculation of the victim’s full amount of loss, and gave credence to the evidence put forth by the government and the victim’s attorney regarding lost wages and benefits, as well as future counseling costs, and held the defendant jointly and severally liable, for the full amount, with other defendants ordered to pay restitution to the victim, recognizing that some of these defendants had yet to be identified. Notably, the court held that the fact that the victim did not have personal knowledge of this particular defendant’s activities at the time experts evaluated her and calculated her full loss did “not negate the harm that [she] suffered and continues to suffer as a result of this defendant’s possession of images depicting her sexual abuse as a child.”
One court that awarded partial restitution relied on the victim’s impact statement as well expert testimony regarding harm, and held that each person who possesses and uses the images of the victim exacerbates the harm that the original production and distribution caused, and that, despite the fact that hundreds or thousands
may possess the same images, the defendant’s conduct “remains a substantial cause of that harm.” In analyzing the victim’s claim of loss, the
court determined that the evidence presented to demonstrate loss improperly conflated the harm that the victim suffered from the possession of the images with the harm that she suffered as a result of the abuse depicted in the
images. The court therefore analyzed each of the victim’s requests in order to decipher which loss could be shown to be causally related to a possession offense. Using this analysis, the court refused to order restitution for loss of income or benefits, holding that the government failed to meet its burden to show a causal connection between such loss and defendant’s possession. With regard to counseling costs, however, the court held that the harm from production, distribution, and possession “are closely related for purposes of counseling and cannot be separate[d] to allocate costs between them as it appears that [the victim] will require counseling for both.” Relying on the language of Section 2259 that requires an award for the full amount of damages, the court held the defendant liable for what it determined to be the full amount of future counseling costs.
The courts that have awarded di minimus restitution have determined that although restitution is mandatory in all possession cases under Section 2259, the definition of “victim” in the statute requires some showing of a casual connection between the defendant’s possession and specific losses before restitution can be awarded. For these courts, “Section 2259 leaves the court in a legal quandary: The court must award restitution and the government must show the harm caused by [defendant], but it is difficult to determine the amount of harm caused by [defendant].” To resolve this “difficult determination,” these courts looked to 18 U.S.C. § 2255, which provides that the minimum amount recoverable in an action for personal injuries caused by the sexual exploitation of children is $150,000. Based on this figure, and, through a discount calculation (the basis of which is less than clear), each came to a di minimus restitution award.<
The courts that have declined to award restitution have rejected the government’s argument that Section 2259 does not require it to establish by a preponderance of the evidence that a specific loss was proximately caused by an individual defendant’s specific offense. Based upon this reading of the law of causation, these courts have determined that, despite substantial victim impact statements and expert reports detailing “tragic harms” to the victim, the government and victim failed to prove by a preponderance of the evidence that any specific portion of the victim’s harm was proximately caused by the
defendant’s specific possession or viewing of the images at issue, as opposed to the initial abuse or other acts of receipt and distribution. Unlike the di minimus courts, these courts have not turned to the civil statute for guidance to calculate a minimum amount of harm, and instead have refused to award any restitution.
So which court(s) are correctly analyzing the restitution issue? A key canon of statutory interpretation dictates that when interpreting a statute one must look to the language of the statute itself. Therefore, to determine whether causation is sufficiently established by a showing that the individual is a victim who is depicted in the images such that he or she meets the definition of “victim” under Section 2259, and what showing of causation is required for a victim to recover restitution from any particular defendant requires an analysis of the language of Section 2259.
Causation Under Section 2259
Section 2259 mandates restitution for “the full amount of the victim’s losses as determined by the
court.” Under the statute, the term “full amount of
the victim’s losses” includes any costs incurred by the victim for:
(A) medical services relating to 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) attorneys’ fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.
As the plain language makes clear, five of the six categories of losses recognized in Section 2259 do not contain a proximate cause requirement. Only the sixth “catchall” category of losses contains such a requirement.
Another common canon of statutory construction provides that, where Congress includes particular language in one section of a statute but omits it in another section of the same law, the omission is presumed intentional. The presumptively intentional omission of “proximate result” in the first five of the subsections suggests that Congress did not want burden victims of child abuse images with a requirement that they show a proximate cause for these losses.
As discussed above, Section 2259 employs a broad definition of victim, providing that a “victim” is
an “individual harmed as a result of a commission of a crime under [the Sexual Exploitation and Other Abuse of Children Chapter of Title 18].” As also discussed above, courts and Congress have made clear findings that children depicted in child abuse images are harmed when someone possesses the images of their abuse. Thus, relying on the plain language of the statute, and court and Congressional findings, sufficient causal connection for categories of loss (A)-(E) is established upon a finding that the individual asserting victim status is, in fact, the person depicted in the image that is possessed.
Courts that have ordered di minimus restitution or no restitution require – contrary to the plain language of Section 2259, congressional intent, and good public policy – a causal connection of proximate cause for all six categories of claims. While this is not an ideal approach, victims in child abuse image possession cases are likely to meet such a requirement. Under general tort law, the outcome of an act need only be foreseeable to establish that the act is the proximate cause of that outcome. “[W]hat is required to be foreseeable is only the general character or general type of the event or harm and not its precise nature, details, or above all manner of occurrence.” Thus, the applicable test “is whether the defendant reasonably should have anticipated any injury” resulting from his conduct. As noted above, courts and Congress have determined that every possessor of child abuse images harms the victim depicted in the images, and that possession of the images is, in fact, causally connected to the original creation and the distribution of these images. Thus, it is entirely foreseeable that each defendant who possesses the images harms the victim.
It is well-recognized that children depicted in child abuse images suffer life-long harm from the sexual abuse captured in the images, as well as by the distribution, possession, and viewing of the images their abuse. It is also well-established that victims of these crimes should receive restitution for their harm. As discussed above, over the last year alone, courts have awarded a wide range of restitution these victims – full, partial, di minimus, or even no restitution at all. These varied outcomes turn on the evidence that courts require regarding the relationship of the harm endured by the victim and the actions of a particular defendant.
A proper reading of Section 2259, together with prior court and Congressional findings on the harms that stem from possession, mandates that this causal relationship is sufficiently established as soon as a victim meets the statute’s definition of “victim.” Despite this, some courts are requiring that before a victim recover restitution they must endure a new harm – learning the details of each possessing offender’s conduct so that they can meet a burden of demonstrated harm from specific conduct of each defendant’s possession. Many of these victims have started on their path of recovery and have submitted to courts substantial evidence of harm and the costs they have, and will incur, from this harm. To require these victims to learn details of each possession will cause them new and increased harm, and flies in the face of public policy and congressional intent. The better approach is to recognize that the harm suffered by these victims is complex and life-long.
Given the intertwining and interrelatedness of production, distribution, and possession, artificially segregating the harms from each of aspect the victim’s abuse is improper. Instead courts should recognize that that the harm from production, distribution, and possession “are closely related” and “cannot be separate[d] to allocate costs between them,” and require all defendants to be jointly and severally liable for the full amount of the victim’s losses. If courts will not or cannot reach this outcome, the law must be clarified to ensure that these victims are afforded restitution for the full amount of their losses without requiring them to endure further victimization at the hands of the criminal justice system.
This article originally appeared in NCVLI News, 12th Edition (2010).
It was written by Meg Garvin, MA, JD and is reproduced here with permission.
 “Child pornography” is a term often used to describe an image that depicts a child being sexually abused. While the term is commonly accepted, its use dilutes the reality of what the image depicts, and the immense harm it causes the child depicted. Consequently, throughout this article the term “child abuse image” will be used instead of “child pornography” whenever possible.
 See, e.g., Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 501, 120 Stat. 587, 624 (2006) (“Every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse.”); New York v. Ferber, 458 U.S. 747, 759 (1982) (finding that the distribution of child abuse images is
“intrinsically related to the sexual abuse of children” because, inter alia,
“the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation”); United States v. Norris, 159 F.3d 926, 929-30 (5th Cir. 1998) (noting that the receipt of child abuse images harms the children depicted in the images because the crime (1) “perpetuates the abuse initiated by the producer of the material”; (2) “represents an invasion of the privacy of the child depicted”; and (3) “instigates the original production of child pornography by providing an economic motive for creating and distributing the materials”).
 See S. Rep. No. 104-179, at 12 (1996), as reprinted in 1996 U.S.C.C.A.N. 924, 925 (noting that the purpose of the Mandatory Victims Restitution Act, (MVRA), 18 U.S.C. § 3663A(b)(2)(C) was “to ensure that the loss to crime victims is recognized, and that they receive the restitution that they are due” because “[i]t is [ ] necessary to ensure that the offender realizes the damage caused by the offense and pays the debt owed to the victim as well as to society”); Hughey v. United States, 495 U.S. 411, 416 (1990) (stating that “ the ordinary meaning of ‘restitution’ is restoring someone to a position he occupied before a particular event”); United States v. Boccagna, 450 F.3d 107, 115 (2d Cir. 2006) (“[I]t can fairly be said that the primary and overreaching purpose of the MVRA is to make victims of crime whole, to fully compensate these victims for their losses and to restore these victims to their original well-being.”) (quotation marks and citations omitted).
 See 18 U.S.C. § 2259(a) (mandating full restitution for children who are the victims of sexual exploitation and other abuse).
 This article addresses only the issue of awarding restitution to those victims in child abuse images who have been identified, not the larger issue of how to help those thousands or tens of thousands of children whose identities are unknown. The National Center for Missing and Exploited Children is the organization that maintains the national identification database for these children, and is diligently working to identify more and more of the victims in the materials containing child abuse images that defendants possess.
 18 U.S.C.§ 2259(a) (emphasis added).
 18 U.S.C. § 2252.
 See Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661-62 (2007) (“As used in statutes . . . this word [shall] is generally
imperative or mandatory.”) (citations omitted).
 18 U.S.C. § 2259(c)(emphasis added).
 18 U.S.C. § 3663.
 18 U.S.C. § 3663A.
 18 U.S.C. § 3663(a)(2); 18 U.S.C. § 3663A(2).
 458 U.S. 747 (1982).
 Id.at 757.
 Id. at 759.
 Id. at 759 n.10 (quoting David P. Shoulvin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545 (1981)).
 United States v. Norris, 159 F.3d 926, 929 (5th Cir. 1998).
 Id. at 929-30 (internal citations and quotations omitted).
 Child Pornography Prevention Act of 1996, Pub. L. 104-208 § 121, 110 Stat. 3009, 26 (1996).
 Pub. L. No. 109-248.
 Id. at § 501.
 See, e.g., United States v. Scheidt, 1:07-CR-00293, 2010 WL 144837 (E.D. Cal. Jan 11, 2010); United States v. Ferenci, No. 1:08-CR-0414, 2009 WL 2579102 (E.D. Cal. Aug. 19, 2009); United States v. Monk, No. 1:08-CR-0365, 2009 WL 2567831 (E.D. Cal. Aug. 18, 2009); United States v. Renga, No. 1:08-CR-0270, 2009 WL 2579103 (E.D. Cal. Aug. 19, 2009); United States v. Zane, No. 1:08-CR-0369, 2009 WL 2567832 (E.D. Cal. Aug. 18, 2009); United States v. Simon, No. CR-08-0907, 2009 WL 2424673 (N.D. Cal. Aug. 7, 2009); United States v. Staples, No. 09-14017, 2009 WL 2827204 (S.D. Fla. Sept. 2, 2009); United States v. Van Brackle, No. 2:08-CR-042, 2009 WL 4928050 (N.D. Ga. Dec. 17, 2009); United States v. Berk, No. 08-CR-212, 2009 WL 3451085 (D. Me. Oct. 26, 2009); United States v. Aumais, No. 08-CR-711 (N.D.N.Y. Jan. 13, 2010); United States v. Brunner, No. 5:08cr16, 2010 WL 148433 (W.D.N.C. Jan. 12, 2010); United States v. Hicks, No. 1:09-CR-150, 2009 WL 4110260 (E.D. Va. Nov. 24, 2009); United States v. Paroline, No. 6:08-CR-61, 2009 WL 4572786 (E.D. Tex. Dec. 7, 2009). The only federal circuit court of appeals to address this precise issue resolved the matter on standard of review grounds rather than engaging the merits of the arguments. See In re Amy, 591 F.2d 792 (5th Cir. 2009).
 e.g., Scheidt, 2010 WL 144837, at *4; Ferenci, 2009 WL 2579102, at *4; Monk, 2009 WL 2567831, at *4; Renga, 2009 WL 2579103, at *4; Zane, 2009 WL 2567832, at *4; Staples, 2009 WL 2827204, at *3; Van Brackle, 2009 WL 4928050, at *3; Berk, 2009 WL 3451085, at *7; Aumais, No. 08-CR-711, at 13; Brunner, 2010 WL 148433, at *2; Hicks, 2009 WL 4110260, at *3; Paroline, 2009 WL 4572786, at *4. But see Simon, 2009 WL 2424673, at * 6 (stating in dicta that the government had failed to meets its burden to show a causal connection between defendant’s possession of child abuse images and harm to the victim).
 See Staples, 2009 WL 2827204, at *3.
 See, e.g., Aumais, No. 08-CR-711.
 See, e.g., Scheidt, 2010 WL 144837, at *4, Ferenci, 2009 WL 2579102, at *4; Monk, 2009 WL 2567831, at *4; Renga, 2009 WL 2579103, at *4; Zane, 2009 WL 2567832, at *4; Hicks, 2009 WL 4110260, at *3.
 See e.g., Van Brackle, 2009 WL 4928050, at *5; Berk, 2009 WL 3451085, at *7; Paroline, 2009 WL 4572786, at *4.
 Staples, 2009 WL 2827204, at *3.
 Id. at *4.
 Id. at *3.
 Aumais, No. 08-CR-711, at 4-13.
 Id. at 15.
 Id. at 15-16.
 Id. at 16-17.
 See, e.g., Scheidt, 2010 WL 144837, at *4; Ferenci, 2009 WL 2579102, at *4; Monk, 2009 WL 2567831, at *4; Renga, 2009 WL 2579103, at *4; Zane, 2009 WL 2567832, at *5.
 18 U.S.C. § 2255(a).
 See, e.g., Scheidt, 2010 WL 144837, at *5 (“The court finds that $3,000 should be awarded as restitution in favor of [the victim]. This amount is two percent of the $150,000 amount reflected in Section 2255. Given the high amount of the deemed damages in Section 2255, the court finds an amount less than $3,000 inconsistent with Congress’s findings on the harm to children victims of child pornography. At the same time, the court finds $3,000 is a level of restitution that the court is confident is somewhat less than the actual harm this particular defendant caused each victim, resolving any due process concerns.”); Ferenci, 2009 WL 2579102, at *5 (same); Monk, 2009 WL 2567831, at *5 (same); Renga, 2009 WL 2579103, at *5 (same) ; Zane, 2009 WL 2567832, at *5 (same); Hicks, 2009 WL 4110260, at *6 (“In the end, the Court finds that the amount of $3,000, the amount identified as the correct restitution figure in several of the previously-decided [cases involving the same victim of the child abuse images], plus attorney’s fees, is appropriate. The Court believes that at least fifty defendants will be successfully prosecuted for unlawfully possessing or receiving the [series of abuse images of the victim], given the numbers prosecuted to date. If restitution orders of $3,000 per case result, [the victim] will be compensated in full. Like the Eastern District of California, this Court is confident that the amount of harm [defendant] actually inflicted upon [the victim] exceeds the amount awarded, and thus [defendant] has little to protest in the way of due process or otherwise.”).
 See, e.g., Van Brackle, 2009 WL 4928050, at *4; Berk, 2009 WL 3451085, at *5.
 See, e.g., Van Brackle, 2009 WL 4928050, at *5; Berk, 2009 WL 3451085, at *8.
 Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1985).
 18 U.S.C. § 2259(b)(1).
 Id. at (b)(3).
 Russello v. United States, 464 U.S. 16, 23 (1983).
 18 U.S.C. § 2259(c) (emphasis added).
 There are a variety of causation analyses that can be used, each of which applies to particular circumstances. This article is using the causation analysis from tort to exemplify how even under this analysis the courts are going astray.
 See Prosser and Keeton on the Law of Torts § 43, at 299 (5th ed. 1984) 4 Harper, James and Gray on Torts § 20.5(6), at 203 (3d ed. 2007) (“Foreseeability does not mean that the precise hazard or the exact consequences that were encountered should have been foreseen.”).
 Elliot v. Turner Const. Co., 381 F.3d 995, 1006 (10th Cir. 2004) (emphasis in original).
 Notably, the victims in each of the cases that have issued from district courts since July 2009 discussed above did not rest on these presumptions, but presented considerable expert testimony and evidence of their losses, as well as victim impact statements recounting the harm. For instance, one victim submitted an impact statement that states, in part: “It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it. It’s like I’m being abused over and over again.”
 Aumais, No. 08-CR-711, at 16.