Fifth Circuit Endorses Full Restitution for Child Pornography Victims

Today, in a rare en banc decision, the Fifth Circuit endorsed the Marsh Law Firm’s argument that victims of child pornography are entitled to restitution for the full amount of their losses.

In a case which has been winding its way through the courts since 2009, ten of fifteen judges agreed that the Mandatory
Restitution for Sexual Exploitation of Children Act of 1994 “imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse.”

The Court further declared that the child pornography restitution statute (18 U.S.C. § 2259):

requires a district court to engage in a two-step inquiry to award restitution where it determines that § 2259 applies.

First, the district court must determine whether a person seeking restitution is a crime victim under § 2259—that is, “the individual harmed as a result of a commission of a crime under this chapter.” 18 U.S.C. § 2259(c). The Supreme Court has acknowledged that “[t]he distribution of photographs and films depicting sexual activity by juveniles is
intrinsically related to the sexual abuse of children,” New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), and this court has elaborated that “children depicted in child pornography may be considered to be the victims of the crime of receiving child pornography.” United States v. Norris, 159 F.3d 926, 929 (5th Cir.1998).

This logic applies with equal force to defendants who possess child pornography: By possessing, receiving, and distributing child pornography, defendants collectively create the demand that fuels the creation of the abusive images. Thus, where a defendant is convicted of possessing, receiving, or distributing child pornography, a person is a victim under this definition if the images the defendant possesses, receives, or distributes include those of that individual.

Second, the district court must ascertain the full amount of the victim’s losses as defined under § 2259(b)(3)(A)-(F), limiting only § 2259(b)(3)(F) by the proximate result language contained in that subsection, and craft an order guided by the mechanisms described in § 3664, with a particular focus on its mechanism for joint and several liability.

The Fifth Circuit concluded:

Once a district court determines that a person is a victim, that is, an “individual harmed as a result of a commission of a crime” under the chapter that relates to the sexual exploitation and abuse of children, § 2259 requires the district court to order restitution for that victim. See 18 U.S.C. § 2259(a), (b)(4)(A), (c).

The restitution order that follows must encompass “the full amount of the victim’s losses.” Id . § 2259(b)(1). Those losses include five categories of specific losses—medical services related to physical, psychiatric, or psychological care; physical and occupational therapy or rehabilitation; necessary transportation, temporary housing, and childcare expenses; lost income; and attorney’s fees and costs—and one category of “other losses suffered by the victim as a proximate result of the offense.” Id . § 2259(b)(3).

The 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.

The defendants are expected to appeal to the United States Supreme Court which might hear the case by this term ending July 1, 2013.

For prior blog posts on the Fifth Circuit’s long-running consideration of In re: Amy Unknown, see Fifth Circuit Issues Landmark Ruling for Child Victims, Fifth Circuit Decides to Reconsider Restitution Victory, and Landmark Children’s Rights Case Now Before the Fifth Circuit.

For the full text of the decision, In re: Amy Unknown, 701 F.3d 749 (5th Cir. 2012), click here.

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