Opprescedent Decisions Continue for Victims of Child Pornography

Last month, in United States v. Robert M. Fast, the Eighth Circuit, in a 2-1 split decision, rejected full restitution for child pornography victims, holding that:

Congress determined that these [child pornography] restitution offenses typically proximately cause the losses enumerated in subsections 2259(b)(3)(A) through (E). Congress did not mean that a specific defendant automatically proximately causes those losses in every case. The government still has to prove that the defendant proximately caused those losses.

[I]njury to the child depicted in the child pornography…is a readily foreseeable result of distribution and possession of child pornography. Proving proximate cause may require nothing more than “expert reports and…victim impact statements” about the costs enumerated in subsections (A) through (E) that the victim incurred after the defendant’s offense began. Determining the “full amount of the victim’s losses” that a defendant’s offense caused is best left to the district court in the first instance.

(emphasis added)

The Court also rejected joint and several liability and contribution which would shift the burden of collecting full restitution from victims to criminals:

Vicky argues that the district court should have held Fast jointly and severally liable for the full amount of her losses. Then, she asserts, he could seek contribution from other defendants liable to her. Section 3664 states, “If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim’s loss
and economic circumstances of each defendant.” 18 U.S.C. § 3664(h). Because “there is only one defendant in this case,” section 3664(h) does not apply.

The Dissent agreed with the Marsh Law Firm’s approach as articulated by the Fifth Circuit:

In In re Amy Unknown, the Fifth Circuit concluded that the plain language of section 2259 imposes a proximate cause requirement only on losses awarded under
subsection (b)(3)(F). The court reasoned that the rule of the last antecedent, a well-established rule of statutory construction, “instructs that ‘a limiting
clause or phrase,’ such as the ‘proximate result’ phrase in § 2259(b)(3)(F), ‘should ordinarily be read as modifying only the noun or phrase that it immediately follows.’”

Significantly, the Supreme Court applied the rule of the last antecedent in two recent cases.

Because “[t]he 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,” and because there is “no
‘other indicia of meaning’ in the statute to suggest that the rule of the last antecedent does not apply here,” the court found that losses in subsections (A)-(E) are not subject to a proximate cause requirement.

Thus, under the Fifth Circuit’s approach, as long as losses in subsections (A)-(E) are incurred “as a result of a commission of a crime under this chapter,” § 2259(c), a district court must award victims “the full amount” of their losses under section 2259(b)(1), regardless of whether the defendant proximately caused those losses. Only miscellaneous “other losses” are subject to a proximate cause requirement.

This, of course, does not mean that the statute imposes no causal requirement at all. As explained above, section 2259 defines “victim” as “the individual harmed
as a result of a commission of a crime under this chapter,” § 2259(c), and then requires courts to order restitution for “the full amount of the victim’s losses,”
§ 2259(b)(1).

Thus, before a court can order restitution, it must determine that (1) the defendant committed a qualifying offense and (2) the person seeking restitution
suffered harm as a result of that offense. See § 2259. To the extent that the harm resulting from the offense involves medical services, therapy or rehabilitation,
transportation, temporary housing, child care, lost income, or attorneys’ fees and costs under subsections (A)-(E), a defendant must pay restitution for the full amount of
those harms, regardless of whether the defendant proximately caused them.

Congress likely chose not to impose a proximate cause requirement for these types of losses because proving proximate causation would be virtually impossible in many
situations, thus leaving child victims without redress.

(emphasis added)

Concerning the ancient and somewhat discredited legal theory of “proximate cause,” the Dissent found that:

“[P]roximate cause” involves more of a policy judgment about whether a particular defendant’s action bears a sufficient causal relationship to an injury such that the law should hold the defendant liable for the injury. On one end of the spectrum is the example above, where the victim’s psychological
problems are “caused” by innumerable unknown defendants. In this situation, the causal link between a specific defendant’s conduct and the victim’s losses is more
tenuous because it would be virtually impossible to show that the victim’s psychological trauma and attendant counseling expenses would have been any less
had that individual defendant not viewed the images. In other words, it is unclear whether the victim could prove that an individual defendant “proximately caused” his
or her losses.

(emphasis added)

Addressing the victim’s joint and several and contribution arguments, the Dissent found that:

Section 2259(b)(1) clearly states that the restitution order must be for “the full amount of the victim’s losses.” Read in tandem with subsection 2259(c), which defines “victim” as “the individual harmed as a result of a commission of a crime under this chapter,” the statute’s reference to “the full amount of the victim’s losses” is best understood as all losses the victim suffered as a result of the defendant’s crime
under Title 18, Part I, Chapter 110: Sexual Exploitation and Other Abuse of Children.

Applying normal common-law principles, where the losses stem from an indivisible
injury, the defendant must be held jointly and severally liable for that injury. For example, if the hypothetical victim above has incurred a total of $500,000 in
counseling expenses as a result of knowing that numerous unknown people are viewing his or her pornographic images, and the court makes a factual finding that
his or her psychological trauma is an indivisible injury, then the district court must enter a restitution order for $500,000, even though the individual defendant is not the
only person responsible for those losses.

If the court determines that some or all of the victim’s injuries are divisible, then the court must apportion liability for those losses and enter a restitution order reflecting only the portion of those losses for which the defendant is individually responsible. An example of divisible
losses might be attorney’s fees incurred in pursing a restitution action against a specific defendant.

In cases where a restitution order reflects joint and several liability, traditional joint and several liability principles would allow a defendant to bring contribution actions against other individuals who contributed to the victim’s losses.

These same principles would prevent victims from recouping more than “the full amount” of their losses since a defendant ordered to pay restitution could introduce evidence that the victim had already collected some or all of that restitution from a defendant in a different case.

[T]he fact that Congress drafted the statute to require defendants to reimburse victims for “the full amount” of their losses reflects the policy judgment that child victims should be fully compensated for their losses in the most efficient manner possible; defendants, rather than child victims, should bear the responsibility of filing additional lawsuits against other responsible parties in order to apportion responsibility among them.

Both Congress and the courts
are familiar with this approach of shifting responsibility for apportionment to defendants, as this is essentially the same approach used in CERCLA litigation.

This interpretation not only reflects the plain language of the statute, but also embraces the sensible policy choice that the responsibility for potentially burdensome
litigation should fall on people who commit crimes against children, rather than on those children.

(emphasis added)

In a statement about the decision, Marsh Law Firm partner James R. Marsh, who helped write the brief in this case, declared:

While we are disappointed by the majority’s reflexive rejection of full restitution for victims of child pornography, we are heartened by the dissent’s commonsense approach and sensitivity to the multifarious challenges facing victims of child pornography.

For every wrong there must be a remedy; the law must not serve as a prophylactic barrier to achieving justice. Congress clearly wanted child victims to be fully and fairly compensated by convicted child molesters and pedophiles. The battle for full restition for child pornography victims will continue with the Dissent’s and Fifth Circuit’s veracious exegesis as our unimpeached polestar.

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