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February 7, 2019

"The New Amy, Vicky, and Andy Act: A Positive Step Towards Full Restitution for Child Pornography Victims"

The title of this post is the title of this new article authored by Paul Cassell and James Marsh, which is forthcoming in the February 2019 issue of the Federal Sentencing Reporter.  Here is its abstract:

Providing restitution to victims of child pornography crimes has proven to be a challenge for courts across the country.  Child pornography is often widely disseminated to countless thousands of criminals who have a prurient interest in such materials. While the victims of child pornography crimes often have significant financial losses from the crimes (such as the need for long term psychological counseling), allocating a victim’s losses to any particular criminal defendant is problematic.

Five years ago, the Supreme Court gave its answer on how to resolve this issue with its ruling in Paroline v. United States.  Interpreting a restitution statute enacted by Congress, the Court concluded that in a child pornography prosecution, a restitution award from a particular defendant is only appropriate to the extent that it reflects “the defendant’s relative role in the causal process that underlies the victim’s general losses.”

In the ensuing years, lower courts have struggled to implement this holding.  Just recently, Congress stepped in to ensure that victims will receive appropriate restitution. In November 2018, the Senate and House resolved their differences in how to handle the issue, passing the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (or “AVAA” for short).  President Trump signed the legislation into law on December 7, 2018.

In this article, we describe the impact of this important new legislation. We set the stage by describing the need for restitution for child pornography victims, using the story of the lead victim in the Act (“Amy”) as an illustration of why restitution is needed.  We then turn to the problematic legal regime that was created by the Supreme Court’s Paroline decision, noting some of the confusion in the lower courts following the ruling.  Against this backdrop, we then discuss the AVAA, explaining how it will be a useful step forward for victims of these crimes.  One even more important possibility is that the Act could set a precedent for expanding restitution for victims in the future.

February 7, 2019 at 08:55 AM | Permalink

Comments

"relative role in the causal process"
Our nation is now considering legal action against the distributors...of opioids. Shouldn't there be like minded legal pursuits against those who are complicit in the streaming of such illicit material? P2P services? ISP services?

Posted by: tommyc | Feb 7, 2019 11:17:38 AM

Child pornography is often widely disseminated to countless thousands of criminals who have a prurient interest in such materials.

Criminals? Child porn is distributed to anyone. Freely available on the internet. Sometimes distributed by the FBI.

The "prurient interest" is not what makes criminals; simply clicking the link is what makes a criminal.

Not defending the use of child porn but pointing out how crazy the laws are. The person who created the images by recording abuse is the one responsible for damages. Those convicted of looking at the images are being used as a source of funds...and their arrests are way for law enforcement to look as if they stopping child abuse when they are not.

Recording something other than abuse should not be treated as if it were abuse.

Posted by: marie | Feb 7, 2019 12:04:00 PM

I agree with the other comments. The big ISPs need to be held accountable for allowing this stuff to be distributed.

Posted by: Chris W | Feb 7, 2019 3:32:57 PM

Mr. Berman, may I remind you that you yourself pointed out a few years ago that you wish that some kind of technology be developed that aids in the PREVENTION of this horrible material to be so freely streamed to anyone who has an internet connection. I ask you, what other crime is so easily accessible, and so freely available? There are a lot of vulnerable people in the world. Should civilized societies continue to allow ongoing sexual exploitation of minors as a tool to entrap its vulnerable citizens?

Posted by: tommyc | Feb 7, 2019 10:20:08 PM

As a general matter, tommyc, I prefer using technology to try to proactive prevent crime rather than simply have punitive reactions to crimes later committed. But my sense is that some criminals will often find ways to evade even the best crime-stopping technologies.

Posted by: Doug B | Feb 8, 2019 12:48:45 AM

I agree with you Mr. Berman...on both your statements...with a caveat. I think my point might be better presented by using an analogy: If the internet could materialize, (Star Trek comes to mind) opioids in one's own home, for free, with zero warnings, offered to anyone in the household, would opioid use in our country increase or stay the same?

Posted by: tommyc | Feb 8, 2019 9:36:20 AM

A good question, tommyc, but not a perfect analogy. Especially when the CP involves sexual acts between adults and young children, a person knowingly accessing such material must know that a child has been victimize to make the CP and should know that the dissemination of that material serves to exacerbate the victimization. One of various reasons I am supportive of providing restitution to victims of child pornography crimes is because it helps ensure people realize that these crimes are anything but victimless.

Posted by: Doug B | Feb 8, 2019 10:35:26 AM

Yes, on its surface it's not a perfect analogy. Before I say more, I should state in very clear terms that CP is not a victimless crime. And that restitution for, not only CP possession, but for many crimes should be considered in light of the very real loss the victims incur. Still I wonder what other crimes of this level of seriousness are so readily available to the general public. We are talking about doctors, lawyers, the clergy, judges, state troopers, psychologist, FBI agents,those who have clinically diagnosable issues, etc...
So, we're in agreement regarding the harm it does to the victim, and to the need for restitution...but from whom? Should our ISP's, and P2P sites continue to be immune from prosecution, and restitution? (Think how the opioid crisis is being adjudicated now).
These crimes are committed mostly by "otherwise law abiding individuals." As is stated by Judge Reinhardt in your September 08, 2014 post. Judge Reinhardt goes on to state; "it is my view that psychological impairment is in most, not all, cases the cause of the criminal conduct."
Our society concentrates so much effort in demonizing and criminalizing this unusual class of offenders. Have we fully examined the role the internet may have in the commission of this crime? In closing, my concerns are best summed up by what Judge Reinhardt stated in US v. Hardrick:
"Many lives of otherwise decent people have been ruined by psychological problems they are not presently capable of controlling. Incarcerating them will not end the horror of child pornography or the injury it inflicts on children. All it accomplishes is to create another class of people with ruined lives - victims of serious mental illness who society should instead attempt to treat in a constructive and humane manner."

Posted by: tommyc | Feb 8, 2019 3:12:35 PM

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