DOJ Interpretation Guts VAWA Protections


Okay, so maybe sexually exploited children don’t get you activated. I’ll admit it’s an unpleasant niche most people would rather not think about. And the child pornography restitution statute which is being considered by federal district courts across the country and in several courts of appeal will arguably affect a relatively small number of victims.

A closer look, however, reveals that the child pornography restitution statute, 18 U.S.C. 2259, is exactly the same as two other restitution statutes which were enacted at the same time. The first is the sex abuse restitution act, 18 U.S.C. 2248, which applies to sex crimes committed on federal land, Indian reservations and the interstate trafficking of minors.

The second, however, involves provisions which are at the heart of the federal Violence Against Women’s Act (VAWA) and includes stalking, interstate domestic violence,
and interstate violation of a protection order.

The VAWA restitution statute, 18 U.S.C. 2264, allows any victim who was harmed from stalking, interestste domestic violence or interstate violation of a protection order to receive restitution for the “full amount” their losses including 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, plus any costs incurred in obtaining a civil protection order; and

(F) any other losses suffered by the victim as a proximate result of the offense.

Congress passed this remedial landmark legislation to fully compensate victims of stalking, domestic violence and interstate violation of a protection order for the losses they suffer. To address these serious harms, Section 2264 makes restitution “mandatory.” To underscore the mandatory nature of restitution, Congress repeated later in the statute that issuance of a restitution order is mandatory.

Section 2264’s provisions are also broader than other federal restitution statutes. The VAWA restitution statute extends its protections to any “victim” who is simply “harmed” by stalking, interstate domestic violence, or the interstate violation of a protection order, requiring neither “proximate harm” nor “direct harm.”

By purposely omitting the narrowing qualifiers “directly” and “proximately” found in other general restitution statutes, Congress decided not to burden victims with any obligation to demonstrate a “direct” or “proximate” harm as prerequisite to receiving restitution.

Unfortunately, the Department of Justice doesn’t agree with this plain statutory language.

Although Congress placed the “proximate result” language only in subsection (F) of the restitution statute, the Department of Justice continues to argue in courts of appeal throughout the country that Congress implicitly intended that phrase be read backwards through the other five preceding sections.

Simply put, DOJ’s position contradicts not only the plain language of the child pornography restitution statute, but the plain language of exact same VAWA restitution statute as well.

Bottom Line: what the courts decide in the coming months about restitution for victims of child pornography will also effect restitution for victims of domestic violence all over the country.

Unfortunately, the Justice Department has abandoned these victims on appeal by advancing a legal standard which the courts consider unworkable.

In October, the Justice Department filed a Supreme Court brief opposing child 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, stalking, interstate domestic violence, and interstate violation of a protection order 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 these victims. The Justice Department has one more chance to do the right thing by supporting victims.

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 victims like her need your help. Right now these 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 victims that they would receive full restitution from criminals convicted of child exploitation, stalking, interstate domestic violence, and interstate violation of a protection order. 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!

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