How Much Restitution Will be Permitted for Child Pornography Victims
The Second Circuit Speaks; Will The Supreme Court Step In?

Guest Legal Analysis by Jennifer Freeman of Freeman Lewis LLP

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

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