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March 1, 2012

First Circuit jumps into circuit split in affirming child porn restitution award

In a long discussion at the end of a long opinion, the First Circuit yesterday weighed in on the various statutory issues that arise when restitution is sought as part of the punishment for a child porn downloader.  Folks following this issue, which has split the circuits in various ways, should read the full opinion in US v. Kearney, No. 10-2434 (1st Cir. Feb. 29, 2012) (available here), and here are some notable snippets:

Under § 2259, restitution may only be awarded to a "victim," which "means the individual harmed as a result of a commission of a crime under this chapter." 18 U.S.C. § 2259(c). Kearney contends that it is "unclear" that Vicky is a victim of Kearney's conduct, with little explanation.

Vicky is plainly a victim of Kearney's crimes.  Any argument that Vicky has not suffered harm as a result of Kearney's crimes defies both fact and law....

It is clear to us that Congress intended some causal link between the losses and the offense to support the mandated restitution.  However, in this statute, Congress also did not specify the level of causation except in one place -- the catch-all clause of the definition of losses, 18 U.S.C. § 2259(b)(3)(F).

With the exception of only a Fifth Circuit panel (which relied on the difference in language between the catch-all clause and the other clauses) in an opinion which has been vacated for rehearing en banc, In re Amy Unknown, 636 F.3d at 198-201, all other circuit decisions have said they interpret the statute as using a proximate causation standard connecting the offense to the losses.... The government does not dispute that a proximate cause test applies.

This seeming agreement on a standard suggests more harmony than there is.  On rather similar facts the circuits have reached different outcomes in applying the proximate cause test, and those outcomes cannot be entirely explained by differences in the facts of record. Compare Monzel, 641 F.3d at 537-40 (finding proximate cause but remanding to determine the amount of harm so caused), and McDaniel, 631 F.3d at 1209 (holding that the district court did not clearly err in finding proximate cause), with McGarity, 2012 WL 370104, at *37-38 (finding that proximate cause was not established); Aumais, 656 F.3d at 154-55 (same), and Kennedy, 643 F.3d at 1263-65 (same).  In our view, any proximate cause standard must be understood and applied in terms of the precise language of the statute and the clear intentions of Congress....

The restitution statute was enacted against a body of Supreme Court case law explaining the type of harm caused by distribution and possession of child pornography, including psychological harm, as discussed above.  These cases make clear that injury to the child depicted in the child pornography, including injury that will require mental-health treatment, is a readily foreseeable result of distribution and possession of child pornography.

March 1, 2012 at 06:45 PM | Permalink

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Comments

Any psychological harm comes from the victim notification system of the federal government. The notification is harmful and traumatic. If I were a defendant, I would file a cross claim against that notification program.

Posted by: Supremacy Claus | Mar 2, 2012 7:08:37 AM

Left out in the summary that Professor Berman posted are one interesting and one relevant facts

The interesting fact - the panel included retired Justice Souter who signed on to the compensation of child porn victims

the relevant fact - the restitution amount was small perhaps even nominal at $3800 - hence, while the court found harm in the redistribution of child porn, it was a small amount. That seems fair.

Erika :)

Posted by: virginia | Mar 2, 2012 11:07:17 AM

What next, a "loss of enjoyment of life" clause? You're only a victim so long as you CHOOSE to be one.

Posted by: hadenuff | Mar 2, 2012 10:12:06 PM

In response to the comment of Supremacy Clause that, "Any psychological harm comes from the victim notification system of the federal government. The notification is harmful and traumatic. If I were a defendant, I would file a cross claim against that notification program.," what this comment ignores is that the federal victim notification system is optional. Victims can and do choose to opt out, and victims of child exploitation offenses are expressly asked whether they wish to receive notifications. In other words, the notification in these types of cases is only done when the victim wants to be notified.

Posted by: Anonymous | Mar 4, 2012 6:41:33 PM

You're only a victim so long as you CHOOSE to be one.

Posted by: Thomas Sabo | Mar 5, 2012 2:15:28 AM

virginia, you think $3,800 is "nominal"? Do you even know what nominal means?

Child porn distribution does not cause any actual harm. The harm took place in the manufacture of the child porn, not the distribution of it.

The proper measure of damages with child porn is the same as for all other copyright cases: disgorgement of profits to the uncompensated co-author(the child). This is what celebrities do when their sex tapes get leaked, they sue for half the profits.

If the government is going to impose fines on child porn convicts, and then use those fines to pay the children depicted in the videos, that is certainly within the government's power to do. But do not mislabel those fines as "restitution" because that is not what it is.

Posted by: lawyerguy | Mar 6, 2012 11:41:39 PM

Doesn't ANYONE worry about what a perverse incentive such "restitution" could create?

In other words, the "restitution" incentivizes the production of child pornography, at least on the child's end. If there are news stories showing that one particular former victim has been collecting checks for decades, a predator might show this to a child as part of a grooming process to entice the child into co-operating.

If the payments are lucrative enough to the victims, what is to prevent a child from potentially choosing to get involved with producing videos for distribution, in the expectation that she will be set for life?

Posted by: lawyerguy | Mar 6, 2012 11:49:08 PM

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