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December 7, 2011

"Avenging 'Amy': Compensating Victims of Child Pornography Through 18 U.S.C. § 2259"

The title of this post is the title of this new paper by Steven Joffee now available via SSRN. Here is the abstract:

Child Pornography is a vicious and heinous crime that preys on the most vulnerable and innocent members of our society.  In recognition of the devastating impact that child pornography can have on its victims, Congress has enacted multiple anti-child-pornography statutes designed to address the problem. Among these statutes is the Mandatory Restitution for Victims of Sex Crimes Act, codified at 18 U.S.C. section 2259.  Section 2259 was specifically enacted to ensure that victims of any defendant convicted of producing, distributing, or possessing child pornography would receive restitution for the full amount of the victim’s losses.

Although Congress intended for Section 2259 to apply in any case in which a victim has “suffered harm” as a result of a defendant’s conduct, its inclusion of the term “proximate result” in the Act’s catchall loss provision has created much confusion amongst federal courts.  As a result of this confusion, several courts have simply ignored the mandatory language of Section 2259 and have flatly refused to award victims of child pornography with restitution, ultimately rendering the Act mere rhetoric.

To resolve this debate, and to end the further victimization of child pornography victims by courts refusing to grant restitution, the United States Supreme Court should grant certiorari to resolve this issue, or alternatively, Congress should amend the Act to make the requisite level of causation more clear.  Only by resolving this issue will Congress’ intent to provide all victims harmed by child pornography with full compensation be achieved, ensuring that those who harm the “Amys” of this world will be held fully responsible for their abhorrent conduct.

December 7, 2011 at 11:33 AM | Permalink

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Comments

Perhaps the Court should. The statute in question has been used to require restitution payments from possessors of child pornography who were not responsible for the original abuse or production of the images, and with no finding of any subsequent distribution. If proximate cause is the standard, these awards aren't defensible.

Posted by: Richard | Dec 7, 2011 12:55:46 PM

"To resolve this debate, and to end the further victimization of child pornography victims by courts refusing to grant restitution, the United States Supreme Court should grant certiorari to resolve this issue, or alternatively, Congress should amend the Act to make the requisite level of causation more clear."

Yeah, because you really impress upon judges the importance of an issue by suggesting that they are complicit in child molesting.

Posted by: C.E. | Dec 8, 2011 12:23:27 AM

There is still time for Congress to adopt my suggestion for what are essentially user fees paid by the icky pervs to compensate the victims. I do not believe that regular criminal law analogies have any merit in restitution for these cases because in that case, only the original producer and distributor would be liable for the full amount of harm. Subsequent distributors and possessors might create a bit of additional harm, but it would be a small amount - such that a mere possessor might only be liable for a nominal amount of additional harm.

I do believe that copyright provides an appropriate comparison - the original icky perv who created and introduced the image to the stream of commerce is liable to the extent of the full amount of harm. Subsequent distributors and possessors would be liable to the extent of their crime - which is essentially possessing - or distributing - an unauthorized copy of the victim. Thus, subsequent icky pervs compensation should be set to pay what is essentially a user's fee to be distributed to known victims for restitution. Congress can choose an amount which distributors and simple possessors pay into the compensation fund which will then fund Amy and Vicki and other victims. They could also create a system where the amount paid to the compensation fund is tied to the defendnat's income and asset level such that a defendant with more assets may be given a higher assessment to the compensation fund.

The victims would then no longer receive notice of new cases - their only dealings would be with the compensation fund who would pay them the restitution for their crime. Excess amounts of user fees once currently known victims with provable financial harm are given restitution for their crimes could be used to help find and then compensate all known victims of child pronography.

The system would be more efficient and more fair than the current system which is dominated by attorneys for two victims who are attempting to get large amounts of restitution while other victims are getting nothing for their victimization. IT would also provide for much more stringent standards to determine the level of needed restitution to avoid cases where victims are overcompensated at the expense of other victims - the current system appears to provide little protection for that.

Of course, no one listens to me about what the law should be, so I'm sure such a sensible common sense solution will never become law

Posted by: virginia | Dec 8, 2011 10:08:55 AM

i like that ideal virginia as long as two things were done

1. Should only apply to crimes that occure AFTER it's passage like the U.S. CONSTUTION requires!

2. IF as you suggest instead of a FLAT fee they use some kind of graduated scheme based on income...that scheudled should be clear and concise and IN THE LAW! so anyone can see it! maybe something useing the individuals FEDERAL TAX info to set!

Posted by: rodsmith | Dec 9, 2011 11:15:03 PM

more bull$h!t...

Posted by: counterpoint | Dec 14, 2011 1:09:04 PM

The harms are so different between people.
Some children are scarred for life and have to go to counseling for it, while others never even remember anything happening.
Certainly the thin-skull rule may make it so that the defendant takes the plaintiff as he finds him, but does this mean that there was no harm to the person who never even remembers it (lucky defendant)?

I can also see why proximate cause is an issue. Is the perpetrator the causation of the mental issues the person has, which are likely caused concurrently by dozens of major issues, the childhood porn issue being just one...?

Difficult problem to address.

Posted by: Aledo Texas Attorney | Feb 13, 2012 4:24:34 PM

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