Supreme Court Grants Justice Dep't Request to Reject Child Victims

Last week the United States Supreme Court ignored the extraordinary pleas of three nationally recognized child advocacy groups and granted the Justice Department's request to dismiss a child sex abuse victim's appeal for criminal restitution.

The case now returns to the district court which must follow the DC Circuit's holding that the victim in this case, Amy, does not have a clear and indisputable right to full restitution, but must instead trace precisely how her losses were “proximately” caused by each of the thousands of child molesters and pedophiles who collect and trade her child sex abuse images.

The Supreme Court's rejection means that a child pornography victim's right to criminal restitution in the federal courts will continue to be limited and denied in sixteen states and territories, including California, New York and Washington, DC. Only in the Fifth Circuit—encompassing the states of Texas, Louisiana and Mississippi—is restitution still mandatory.

The Court's denial—and the Justice Department's stubborn refusal to abandon a legal standard which the influential Ninth Circuit concluded "present[s] serious obstacles for victims seeking restitution in these sorts of cases"—leaves child sex abuse victims like Amy with scant chance for justice in the federal courts.

Pedophiles, child molesters and the Justice Department are likely to seize on the high court's rejection as a sign that criminal restitution for child sex abuse victims is all but impossible in the federal courts except under the most egregious circumstances.

We continue to urge everyone to Take Action and ask the Justice Department to stop siding with convicted child molesters and pedophiles instead of child sex abuse victims!

Just go to http://bit.ly/DOJustice for full details on how you can help.

For the complete background on this issue, visit http://www.childlaw.us/restitution/.

Take Action! Here's how you can help child sex abuse victims

Why is the Justice Department siding with convicted child molesters and pedophiles instead of child sex abuse victims? Many have called and e-mailed asking "what can I do to help convince the Justice Department to change its unacceptable position on this issue?"

Now you can easily support child sex abuse victims by submitting a request to Congress and the President.

Just click on the Take Action button which will launch our petition at Petition2Congress.com. We've filled in all the details and it only takes a minute.

Just add your name and zip code and a pre-formatted letter will be created which asks your Representative, Senators and the President to immediately contact the Justice Department and ask why the Criminal Division is opposing the victims in In re: Amy Unknown in the Fifth Circuit and United States v. Shawn Crawford in the Sixth Circuit.

The letter also asks Congress to hold hearings to find out why the Justice Department is siding with convicted child molesters and pedophiles instead of child sex abuse victims.

You will be given a chance to make any changes or edits to the letter before sending. For maximum impact Petition2Congress.com can hand-deliver a printed copy of your letter to Capitol Hill and the White House.

Amy and Vicky need your help. Hundreds of victims like them are effectively shut-out of the federal courts by the Justice Department's wrongheaded policy.

Almost 20 years ago, then-Senator Joe Biden promised victims that they would receive restitution from criminals convicted of child sex crimes. Ironically, Vice President Biden's own Justice Department is failing to live up to his vision in the Violence Against Women's Act.

You can help awaken the politicians in Washington with just a few clicks. Amy and Vicky thank everyone for their continued support. You can make a difference in their fight for justice!

Justice Department Sides with Child Molesters and Pedophiles AGAIN

When Justice Department attorneys refused to even sit with the child sex abuse victim at last year's oral argument before the Fifth Circuit Court of Appeals in New Orleans, Chief Judge Edith Jones proclaimed:

"What I don't understand is why the government has switched sides. They were on Amy's side in the trial court, were they not? I'm not sure how they can switch sides now and say that the statute doesn't entitle her to relief. That seems very—if not duplicitous—very strange to me. And it's also in derogation of the obvious intent of that provision of the statute."

Now, over a year later, the Justice Department has done the exact same thing again in the Sixth Circuit. Only this time they are asking the Court of Appeals to nullify a court-ordered million dollar award to a child sex abuse victim.

Why is the Obama Justice Department siding with convicted child molesters and pedophiles instead of child sex abuse victims?

In response to this shameful position, the Marsh Law Firm has joined forces with lawyers for the victim in this case and requested immediate intervention in the Sixth Circuit Court of Appeals to defend the million dollar judgment which was abandoned by the government on appeal.

The child sex abuse victim in this case, Vicky, is represented by Seattle attorney Carol Hepburn, who declared:

"It's bad enough that we so often have to fight child molesters and pedophiles all over the country just to get some measure of restitution for the victim. Now we have to fight the government too. Unfortunately the government has turned on us in one of the few cases where we won something significant which would really make a difference in my client's life. I just don't understand why the government is deciding to flip-flop and now go against the victim in these cases."

According to crime victims’ rights advocate Paul Cassell, a former federal judge who is currently a law professor at the S.J. Quinney College of Law at University of Utah (and who also represents Vicky on appeal on a pro bono basis):

"It is unconscionable that the government would abandon a child victim on appeal without any notice or a chance to respond. We only found out about this appeal by accident. If we hadn't intervened, no one would have protected this substantial award before the Court of Appeals. Who could have imagined that the government—which worked so hard at the trial court to obtain this award—would suddenly and without warning switch sides before the Sixth Circuit? The Justice Department simply forgot about the child victim when it filed its appeal pleadings."

Marsh Law Firm partner, James R. Marsh, emphasized that the legal fight for child sex abuse victims will continue whenever and wherever necessary:

"The Department of Justice has fought against us in the Fifth Circuit, the District of Columbia Circuit, the Supreme Court and now the Sixth Circuit. Apparently the decision to abandon child sex abuse victims is being made by lifelong apparatchiks who haven't left Washington in a long, long time. This kind of stupidity is one reason why the American people have such distrust and cynicism in our government right now. It defies any sense of common decency that some government lawyer in Washington, DC would think it's a good idea to expend taxpayer dollars to fight against the interests of child sex abuse victims everywhere in the country."

Marsh exclaimed:

"At a time when Penn State has incited international indignity, it's outrageous that the federal government is marshaling every effort to deny child sex abuse victims criminal restitution which was a central part of the law championed by the Administration's own Vice President Biden as part of his landmark 1994 Violence Against Women's Act. Now that the Senate is holding hearings on how well the nation is protecting children from abuse and neglect, they should start by asking why their own Justice Department is siding with convicted child molesters and pedophiles against the interests of child sex abuse victims."

Click here to Take Action on this issue!

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 www.freemanlewis.com.

Court Rules Attorney-Client Privilege ≠ Colorado GAL-Attorneys

Last week, the Colorado Supreme Court ruled that the attorney-client privilege does not apply to conversations between guardians ad litem and the children they represent in child abuse, child welfare and custody cases. In Colorado, a guardian ad litem is an attorney appointed to represent a child who has been abused or neglected or is in foster care. They are also appointed for children are accused of crimes or involved in a custody fight.

In a very controversial 5-2 decision, the Court held that “because a child who is the subject of a dependency and neglect proceeding is not the client of a court-appointed guardian ad litem, neither the statutory attorney-client privilege nor ethical rules governing an attorney’s obligations of confidentiality to a client strictly apply to communications by the child.”

Justice Nathan Coats, writing for the majority, found that a guardian ad litem does not represent litigants on opposite sides of a case “or even the demands or wishes of the child. … The guardian ad litem is statutorily tasked with assessing and making recommendations to the court concerning the best interests of the child.”

The underlying case, People v. Gabriesheski, involved a man criminally charged with abusing his step-daughter. While that case was pending, the department of human
services filed a case in juvenile court and an attorney was appointed as guardian ad litem to represent the child victim. During the criminal case, the prosecutors
attempted to call the GAL to testify about her private conversations with the victim. Both lower courts held that the conversations between the victim and her GAL were
protected by attorney-client privilege.

The Supreme Court reversed, basing its decision on the duty of a child's attorney to protect his or her client from abuse; a lawyer acting as a guardian ad litem is supposed to help the court act in the child's best interest even if the child doesn't want the lawyer to reveal information.

The dissent wrote that “the majority's decision deprives children of the right to legal representation. … the impact of this decision will have devastating effects on the ability of guardians ad litem to fully represent the best interests of children in dependency and neglect proceedings. Because children will no longer have the protection of the attorney-client privilege, guardians ad litem will be required to disclose information about their wards even when it is not in the child's best interests to do so. This outcome, which appears to be based on a generalization that a child is incapable of being involved in the legal process, is at odds with a child's fundamental right to be represented in court, and fails to protect the legal rights of children.”

The Rocky Mountain Children’s Law Center, a nonprofit organization that provides legal advocacy for abused and neglected children in Colorado, stated that “this decision denies children in the Colorado child protection system effective legal representation by depriving them of the opportunity to have confidential conversations with the attorneys appointed to protect their best interests. The Colorado Supreme Court has decided that abused children are not entitled to one of the most basic benefits of legal representation, which is having a trusting, confidential relationship with an attorney.”

Jeff Koy, the director of litigation of the Children’s Law Center, who has served as a court-appointed GAL for more than 12 years, argued in this case that conversations between GALs and children should be protected. “Children have a right to be in a safe home and receive the treatment services they need. GALs are charged with ensuring that children are provided these protections. To do this effectively, children must be able to trust us,” said Koy. “They have to be able to
confide in us about where they feel safe and what happened to them without fear of having their confidences betrayed. Otherwise, the very people who abused them may
learn what the child said.”

“The children we represent have often been through horrific abuse before landing in state care,” Koy said. “They need someone to confide in. Until today, that person was their GAL.”

The old adage “hard cases make bad law” rings especially true in this case. As a longtime victim's advocate and even longer-time children's advocate, the tension between what's best for your client and what should be done to keep your client healthy and safe thankfully does not often conflict. When it does, however, the implications can be far-reaching.

Many years ago I represented an eleven year old child in exactly the same situation. After an immigrant girl was removed from her home for alleged physical abuse, I was appointed as her “law guardian.” At that time the GAL role was ill-defined and unclear. My client denied the abuse and wanted desperately to return to her family.

When the judge asked me for my recommendation, I stated emphatically that my client wanted to return home. When pressed further, I informed that court that I was not personally or professionally taking a position on whether or not she should return home, but instead informing the court of my client's expressed wishes. I explained that I had interviewed my client, her teachers and family friends; that my client was mature enough to have a position; that she understood the consequences of her decision; that she expressed her wishes to me clearly and repeatedly; that I was my client's only voice in the court system and felt compelled to advocate for her expressed wishes and not her “best interests.”

Reluctantly, the court turned to the child welfare agency which was unable to substantiate any of the abuse charges and the case was dismissed allowing my client to return home.

I'm not sure how I would have handled the case if my client told me she was being abused. Understanding what I now know about victims, I can appreciate the fact that children rarely disclose physical and sexual abuse and when they do they should be believed.

When children do disclose such things to their attorney-GAL, there are legitimate and ethical ways to address any real or perceived conflict. The child's attorney can ask that a GAL be appointed to represent the child's best interest. The child's attorney can ask the court to permit withdrawal based on “irreconcilable differences” which make the attorney-client relationship is unsustainable. The child's attorney can counsel the client to an end result which keeps the client safe and preserves confidences.

What makes this case so unsettling is that the Colorado Supreme Court is directly requesting that an attorney reveal client confidences. This case is not about a “recommendation” or a request for “the child's best interest.” It is a direct invasion into the relationship between the child and her attorney. It goes far beyond defining the role of an attorney-GAL to assaulting the very foundation of the now non-existent attorney-client relationship.

The Colorado Supreme Court's decision strips a child from ANY advocate in the court system. It applies not only to sexual abuses cases, but to all cases involving a child including custody, child welfare and even criminal cases. Imagine a juvenile delinquency case in which the prosecutor can force the child's attorney to testify against his or her client. Imagine a child custody case in which a parent can force a child's GAL to testify about which parent the child prefers.

The Court's decision here has far-reaching implications. It was ill-advised, ill-conceived and vastly over-broad. In solving one perceived problem (after all, we don't know that the child client in this case told her attorney anything about the sexual abuse), it creates an untold number of complications with the end-result that children in the Colorado court system no longer have reliable advocates or an unconstrained voice.

Assessing Current Restitution Law to&nbsp;<br>Effectively Serve Victims in Child Abuse Imagery Cases&nbsp;^{<a href="#FN*">*</a>}

This article discusses the Marsh Law Firm's pioneering work to secure criminal restitution for our client Amy. It appeared in the National Center for Prosecution of Child Abuse Update earlier this year, before our appeal to the United States Supreme Court. The NCPCA Update can be downloaded in full here.

by Angela Downes, Meg Garvin, Wanda Lucibello, Alison Wilkinson, Terry Campos, and Hon. Paul Cassell²

Amy was only four years old when her uncle sexually assaulted her and documented that assault through photographs. Although the assault took place in 1993, now nearly 20 years later those photographs continue to circulate on the Internet and are among the most actively traded child abuse images known to law enforcement. These horrific images continue to haunt Amy; in her own words:

There is a lot I don’t remember [about the abuse], but now I can’t forget, because the disgusting images of what he did to me are still out there on the Internet. Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again.³

What Amy so powerfully conveys is what nearly every victim of this type of abuse suffers; they live in constant fear that even as they make a quick run to the grocery store, as they step into a job interview, or as they walk down the street, someone will recognize them from the horrific images in circulation. Unlike the physical abuse, this fear never stops. As Amy has said to courts nationwide, “[i]t’s like I’m being abused over and over and over again.”⁴

The images at issue are often labeled “child pornography.” While this term is widely accepted it dilutes the graphic content of the images—sexual and physical assaults on a child. Consequently, a more apt term is “child abuse imagery.” Legislators and courts have long recognized that children depicted in such images are harmed not only by the sexual exploitation involved in creating the images, but also by the distribution, possession, and viewing of their sexual abuse.⁵ This recognition is supported by social science research.⁶ Legislators and courts have similarly recognized the importance of awarding restitution to victims who are harmed by crime to help make them whole, and to aid their recovery.⁷

Thus, it seems reasonable that children depicted in child abuse images should be awarded restitution from their offender(s), including offenders who possess and view images of their abuse.

Despite the logic, justness, and legality of affording restitution to these victims,⁸ over the last several years the right of these victims to full restitution has become a contested issue in the federal district courts.⁹ Some courts refuse to afford any restitution, others award de minimus restitution, and another awarded the full amount of requested restitution in excess of $3,000,000.¹⁰ The different outcomes can be attributed in significant part to varied legal interpretations of the governing statute, 18 U.S.C. § 2259, and causation.

While Amy and other similarly situated victims can never be brought back to the lives they lived before their abuse, or before the images of their abuse became a staple of the online industry, attorneys can nonetheless go a long way in helping them by securing adequate restitution for them in the courts. To help practitioners aid victim recovery, this article provides a brief overview of the current state of the law, identifies key issues at play in the courts, and suggests some practices to employ in representation of these victims.

The Scope of the Definition of “Victim” for Restitution Purposes Under Section 2259

18 U.S.C. § 2259(a) governs restitution for offenses involving sexual exploitation and other abuse of children, including possession of covered images. Section 2259 provides that a district court “shall order restitution for any offense under this chapter.” 18 U.S.C. § 2259(a).¹¹ According to Section 2259, a restitution order must be for “the full amount of the victim’s losses as determined by the court.” 18 U.S.C. § 2259(b)(1). Notably, Section 2259 broadly defines the victim, providing that a “victim” is an “individual harmed as a result of a commission of a crime under [the statutes regarding child abuse imagery] …” 18 U.S.C. § 2259(c). This broad definition of “victim” contrasts with many other federal definitions of “victim” in which Congress has used a narrower definition.
See, e.g., 18 U.S.C. § 3663(a)(2) (defining “victim” to be a “person directly and proximately harmed as a result of the commission of an offense.”) 18 U.S.C. § 3663A(a)(2) (same). Unlike these other statutes, § 2259 does not explicitly require a “direct” or “proximate” harm to the individual for that individual to qualify for restitution; rather, according to the statute’s plain language, any harm resulting from a qualifying offense is sufficient.

Findings cited during passage of two recent federal laws confirm that Congress understood that a child depicted in child abuse images is the primary victim of child exploitation crimes— including possession. See Child Pornography Prevention Act of 1996, Pub. L. No. 104-208, Div. A, tit. I, § 121, subsec. 1(2), 110 Stat. 3009-26 (Sept. 30, 1996) (“Where children are used in its production, child pornography permanently records the victim’s abuse, and its continued existence causes the child victims of sexual abuse continuing harm by haunting those children in future years.”); Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 501(1)(A), 2(D), 120 Stat. 587, 623-24 (July 27, 2006) (“[T]he illegal production, transportation, distribution, receipt, advertising and possession of child pornography … is harmful to the physiological, emotional, and mental health of the children depicted in child pornography. … Every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse.”).

Courts have similarly determined that an offender’s possession of child abuse images causes harm to the depicted children.The United States Supreme Court first acknowledged such harm in 1982 in New York v. Ferber, 458 U.S. 747 (1982). In Ferber, the Court upheld a New York law that criminalized the promotion of child abuse images, finding that “[t]he prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.”¹²

In reaching its decision, the Court noted

[b]ecause the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography.¹³

The Court reaffirmed this truism in Ashcroft v. Free Speech Coal., 535 U.S. 234, 249 (2002 (“[A]s a permanent record of a child’s abuse, the continued circulation itself would harm the child who had participated.”). Likewise, lower federal courts have routinely found that a child portrayed in child abuse images is a legal victim under § 2259.¹⁴

Based on a plain reading of § 2259, and clear findings by the courts and Congress, children depicted in child abuse images qualify as “victims” harmed under Section 2259 and are entitled to mandatory full restitution from their offender(s), including those offenders who possess and view their abuse.

So what is the dispute about? The Causation Required under § 2259

Over the past several years numerous federal courts¹⁵ have grappled with whether restitution is owed to victims depicted in child abuse images when the crime at issue is possession. As noted above, the courts have routinely found the victim depicted was harmed by the offender’s possession of the images depicting their abuse.¹⁶

Despite the consistency among the courts in finding harm to the victims, the courts have split on whether, and how much restitution to award the victims depicted in the imagery; amounts vary between full restitution,¹⁷ de minimus restitution,¹⁸ and no restitution.¹⁹ The difference in outcome turns on the courts’ causation analyses—meaning whether a causal connection between the defendant’s offense and the victim’s harm must be demonstrated, and, if so, by what showing.²⁰

When interpreting a statute, one must start with the language of the statute.²¹ §2259 requires that a victim be compensated for the “full amount of the victim’s losses,” for the following:

(A) medical services relating to 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) attorneys’ fees, as well as other costs incurred; and

(F) any other losses suffered by the victim as a proximate result of the offense.²²

As the statute’s plain language makes clear, five of the six categories of losses contain no proximate cause requirement, whereas the sixth “catchall” category contains such a requirement.
Another key to interpreting a statute is that when Congress includes language in one section of a statute but omits it in another section of the same law, it is presumed that Congress intentionally excluded the language.²³ The presumptively intentional omission of “proximate result” from the first five subsections suggests that Congress did not want to burden victims of child abuse images with a requirement that they show a
proximate cause for these losses. Avoiding imposing such burden is in line with public policy and congressional intent.²⁴

Even assuming, contrary to the plain language, congressional intent, and good public policy, that the statute imposes a general proximate cause requirement on all six categories of claims, victims in child abuse imagery possession cases should easily meet such proximate cause requirement. Under general tort law,²⁵ there is universal agreement that proximate causation is that which is foreseeable and “what is required to be foreseeable is only the general character or general type of the event or harm and not its precise nature, details, or above all manner of occurrence.”²⁶ Thus, the test of foreseeability “is whether the defendant reasonably should have anticipated any injury” resulting from his crime.²⁷

In the context of § 2259, no court has found that “mathematical precision” is required in determining the causal connection between the offense of conviction and the victim’s harm.²⁸
Rather, in determining causation, a “rule of reasonableness is applied.”²⁹ “Reasonableness” is shown if it is demonstrated that the defendant’s actions were a “substantial factor” in causing the victim’s harm.³⁰ Some jurisdictions have found that simply possessing child pornography is sufficient to establish a substantial factor.³¹ Other courts, while not finding an automatic connection between defendant’s acts and the victim’s harm, have nonetheless found that defendant’s possession or distribution was a substantial factor in causing the victim’s harm.³² To be a “substantial factor”in causing the victim’s harm, the defendant need not be the only source of injury.³³ Nor must the victim know of the defendant’s identity.³⁴ It is sufficient to establish that: (1) the victim is a victim of child abuse images; (2) the victim suffered harm as a result of the possession of those images; and (3) defendant was one such individual in possession (or conspired to be in possession) of those images. Consequently, regardless of the analysis engaged, victims whose child abuse images are possessed are entitled to restitution from the possessor.³⁵

What can a Practitioner Do? Independent Participation in the Criminal Case

Crime Victims’ Rights Act of 2004, 18 U.S.C. § 3771, affords victims of crime eight enumerated rights as well as explicit trial-level standing to assert those rights and appellate-standing to seek expedited, mandatory review if those rights are denied. Among the rights codified is the right to restitution.³⁶ While the United States Attorneys’ offices have an independent obligation and burden to seek restitution on behalf of the victim, and the court has an independent obligation to ensure CVRA rights are afforded, under the CVRA a victim’s attorney can independently file a restitution memorandum seeking restitution. An effective restitution memorandum that includes affidavits, calculations, and seeks mental health³⁷ and future lost income³⁸ can go a long way to securing restitution, which can aid the victim on the path to healing.³⁹

Conclusion

Children who suffered unimaginable violations at the hands of their abusers are now, due largely due to the explosion of online technology, suffering violations daily as new offenders view the images of their abuse and use those images to groom other children for future harm. There is consensus among the courts and Congress that these victims are harmed by the possession of these images. There is, however, confusion among the courts regarding when and how much restitution to afford these victims when the only crime at issue is possession.These victims have started recoveries and have submitted evidence of harm, restitution will help their recovery. Although the analysis presented in this article regarding restitution in child abuse image possession seems a straightforward proposition, courts nationwide continue to splinter. Consequently, it is very likely that this issue will only beresolved in the coming years through a decision by United States Supreme Court. Practitioners nationwide can help victims and courts by briefing the issue.

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* “Child pornography” is often used for images that show the scene of the crime of a child being sexually abused.While the term is commonly accepted, its use dilutes what the image is and the immense harm it causes the child depicted. Consequently, throughout this article the term “child abuse image” will be used whenever possible.

2 Angela Downes is a senior attorney with NDAA’s National Center for the Prosecution of Child Abuse. Her practice focuses on child abuse issues, including the interrelationship between child abuse and domestic violence, human trafficking and victims’ issues. Meg Garvin, M.A., J.D., is the executive director of the National Crime Victim Law Institute (NCVLI) and a clinical professor of law at Lewis & Clark Law School. Ms. Garvin is recognized as a leading expert on victims’ rights. Wanda Lucibello is the chief of the Special Victims Division for the Brooklyn DA’s Office. She is well-known throughout the country as an expert on domestic violence issues. Terry Campos is an attorney with the National Crime Victims Law Institute (NCVLI). Alison Wilkinson is an attorney at NCVLI and clinical faculty at Lewis & Clark Law School, where she co-teaches a clinic on victim’s rights. Hon. Paul G. Cassell was nominated for the U.S. District Court for the District of Utah by President George W. Bush on June 20, 2001. On May 13, 2002, the Senate confirmed Judge Cassell.

3 Transcript of Restitution Hearing Proceedings, June 22, 2009.

4 Id. at R837:19-20.

5 See Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 501, 120 Stat. 587, 624 (2006) (“Every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse.”); United States v. Norris, 159 F.3d 926, 929-30 (5th Cir. 1998) (noting that the harm caused by receipt of child abuse images occurs because the crime “perpetuates the abuse initiated by the producer of the material”; 2) “represents an invasion of the privacy of the child depicted” and; 3) “instigates the original production of child pornography by providing an economic motive for creating and distributing the materials.”); New York v. Ferber, 458 U.S. 747, 759 & n.10 (1982) (noting that distribution of child abuse imagery exacerbates harm to the child. … “A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography.”) (citation omitted).

6 David P. Shouvlin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545 (1981) quoted in Ferber, 458 U.S. at 759 n.10 (1982) See also Audrey Rogers, Child Pornography’s Forgotten Victims, 28 Pace L. Rev. 847, 853 (2008) (noting victims of child abuse images “may suffer psychological injuries including depression, anger, withdrawal, low self-esteem and feelings of worthlessness”) (citing Eva J. Klain, et al., Child Pornography:The Criminal Justice System Response, Nat’l Ctr. for Missing & Exploited Children, March 2001, at 10.

7 See S.Rep. No. 104-179, at 12 (1996), as reprinted in 1996 U.S.C.C.A.N. 924, 925 (noting that purpose of the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A (b)(2)(C) was “to ensure that the loss to crime victims is recognized, and that they receive the restitution that they are due” because “[i]t is necessary to ensure that the offender realizes the damage caused by the offense and pays the debt owed to the victim as well as to society.”); United States v. Boccagna, 450 F.3d 107, 115 (2d Cir. 2006) (“[I]t can fairly be said that the ‘primary and overarching’ purpose of the MVRA ‘is to make victims of crime whole, to fully compensate these victims for their losses and to restore these victims to their original well-being.’”) (citation omitted); Hughey v. United States, 495 U.S. 411, 416 (1990) (“[T]he ordinary meaning of ‘restitution’ is restoring someone to a position he occupied before a particular event …”). See also Sheldon, Kerry; Dennis Howitt, Sex Offenders and the Internet 9 (John Wiley and Sons) (2007).

8 This article addresses only the issue of awarding restitution to those victims who have been identified; not the larger issue of how to help those thousands or tens of thousands of children who have not yet been identified. The National Center for Missing and Exploited Children (NCMEC) is the organization that maintains the national identification database for children, and is diligently working to identify more and more of the victims in pornographic material defendants possess.

9 As of the writing of this article, the one federal circuit court that dealt with the issue resolved the issue on standard of review grounds rather than engaging the merits of the arguments. See In re Amy, 591 F.3d 792 (5th Cir. 2009).

10 See United States v.VanBrackle, 2009 WL 4928050 (N.D.Ga). Past Victims of child sexual abuse that appeared in images found in defendant’s possession were not entitled to restitution … where the victims failed to establish the amount of harm resulting from defendant’s acts. The victims provided sufficient evidence regarding the total amount of harm resulting from the abuse suffered, but failed to establish the amount of harm proximately caused by defendant’s acts. See also Pornography, and the Issue of Restitution at a Price Set by the Victim by John Schwartz, New York Times, February 3, 2010.

11 Possession of material involving the sexual exploitation of children is a covered crime. See 18 U.S.C. § 2252.The use of the word “shall” makes awarding of restitution under § 2259 mandatory. See Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2532 (2007) (“As used in statutes … this word [shall] is general ly imperative or mandatory”) (citation omitted).

12 Id. at 757.

13 Id. at 759 n.10 (quoting Shoulvin, 17 Wake Forest L. Rev. at 545).

14 See, e.g., United States v.Tillmon, 195 F.3d 640, 644 (11th Cir. 1999) (finding that children depicted in child abuse images remain victims not only when the pictures are taken or purchased, but also when they are transported or distributed, and stating that the distribution of these images “exacerbates” harm by “constituting a continuing invasion of privacy” and “by providing the very market that led to the creation of the images in the first place”); United States v. Staples, No. 09-
14017-CR, 2009 WL 2827204, *3 (S.D. Fla. Sept. 2, 2009) (finding Amy to be a victim under § 2259 due to the harm she “suffered and continues to suffer as a result of defendant’s possession of images depicting her sexual abuse as a child.”); United States v. Boos, 127 F.3d 1207, 1210 (9th Cir. 1997) (finding it “scarcely debatable that children depicted” in child abuse images were victims in this case trying defendant of conspiracy to distribute or receive child pornography and distribution of child pornography); Norris, 159 F.3d at 929-30 (stating, in receipt of child pornography case, that the victimization of the children depicted in child abuse images “does not end when the pornographer’s camera is put away” but rather “[t]he pornography’s continued existence causes the child victims [of sexual abuse] continuing harm by haunting the children for years to come.”) (citation omitted); United States v. Goff, 501 F.3d 250, 259 (3rd Cir. 2007) (stating, in possession case, “[h]aving paid others to ‘act out’ for him, the victims are no less damaged for his having remained safely at home, and his voyeurism has actively contributed to a tide of depravity that Congress, expressing the will of our nation, has condemned in the strongest terms.”); United States v. Hardy, 707 F. Supp. 2d 597, 605 (W.D. Pa. 2010) (finding Amy to be a statutory victim under § 2259 in a case in which defendant was convicted of receipt, possession, and distribution of pornographic images of her).

15 At the writing of this article, an eleventh District Court is in the midst of the issue. See United States v. Buchanan, Case No. 09- CR-0045, 2010 U.S. Dist. LEXIS 165, at *3 (D.Minn. Jan. 4,
2010) (noting that “the Court will no longer accept silence from the government when an identified victim of a child- pornography offense seeks restitution” and ordering the government to file a memorandum explaining why the identified victim is not entitled to restitution).

16 See, e.g,, United States v. Paroline, 672 F. Supp. 2d 781, 787 (E.D. Tex. 2009), aff’d, In re Amy, 591 F.3d 792; United States v.Van Brackle, No. 2:08-CR-042, 2009 WL 4928050, at *3 (N.D. Ga. Dec. 17, 2009); United States v. Hicks, No. 1:09-cr-150, 2009 WL 4110260, at *3 (E.D.Va. Nov. 24, 2009); United States v. Berk, 666 F. Supp. 2d 182, 191 (D. Me. 2009); Staples, 2009 WL 2827204, at *3 (S.D. Fla. Sept. 2, 2009); United States v. Ferenci, No. 1:08-CR-0414, 2009 WL 2579102, at *4 (E.D. Cal. Aug. 19, 2009); United States v. Renga, No. 1:08-CR-0270, 2009 WL 2579103, at *4 (E.D. Cal. Aug. 19, 2009); United States v. Zane, No. 1:08-CR-0369, 2009 WL 2567832, at *4 (E.D. Cal. Aug. 18, 2009); United States v. Monk, No. 1:08-CR-0365, 2009 WL 2567831, at *4 (E.D. Cal. Aug. 18, 2009). But see United States v. Simon, No. CR-08-0907, 2009 WL 2424673, at *7 (N.D. Cal. Aug. 7, 2009) (concluding that victim had been harmed by others but not specifying whether harm was from possession, and refusing to award restitution because insufficient evidence of harm to victim from defendant’s possession conduct).

17 See Staples, 2009 WL 2827204, at *3 (S.D. Fla. Sept. 2, 2009) (awarding $3,680,153.00 in restitution to the victim “Amy”).

18 See, e.g, Hicks, 2009 WL 4110260, at *3 (awarding $3,525.00 in restitution to the victim “Vicky”); Ferenci, 2009 WL 2579102, at *4 (awarding $3,000.00 in restitution to victim “Vicky”); Renga, 2009 WL 2579103, at *4 (awarding $3,000.00 in restitution to victim “Vicky”); Zane, 2009 WL 2567832, at *4 (awarding $3,000.00 in restitution to each victim, “Vicky” and “Amy”); and Monk, 2009 WL 2567831, at *4 (awarding $3,000.00 in restitution to each victim, “Vicky” and “Amy”).

19 See, e.g., Paroline, 672 F. Supp. 2d at 793 (E.D.Tex. 2009), aff’d, In re Amy, 591 F.3d 792; Van Brackle, 2009 WL 4928050, at *5; Berk, 666 F. Supp. 2d at 191; Simon, 2009 WL 2424673, at *7.

20 A review of the 2009 cases reveals that a court awarding full restitution—United States v. Staples—does not include an explicit causation analysis; courts that have awarded de minimus restitution each determined that a causal connection must be shown, but then, without detailing the analysis, these courts looked to the minimum civil recovery in 18 U.S.C. § 2255 (i.e., $150,000), and, through a less than clear discount calculation, each came to a de minimus restitution award; and the courts that declined awarding restitution each required a causal connection and then determined the government and victim failed in their burden to prove what portion of the victim’s harm was caused by the defendant’s specific possession or viewing.

21 Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1985).

22 18 U.S.C. §§ 2259(3)(A)-(F).

23 Russello v. United States, 464 U.S. 16, 23 (1983).

24 In context other than child abuse imagery restitution, a number of courts have found § 2259 incorporates a causation requirement. See, e.g., United States v. Laney, 189 F.3d 954, 965 (9th Cir. 1999) (holding that section 2259 “incorporates a requirement of proximate causation”).

25 There are a variety of causation analyses that can be used—each of which applies to particular circumstances.This article is using the causation analysis from tort to exemplify how even under this analysis the courts are going astray.

26 See Prosser and Keeton on the Law of Torts § 43, at 299 (5th ed. 1984); 4 Harper, James and Gray on Torts § 20.5(6), at 203 (3d ed. 2007) (“Foreseeability does not mean that the precise hazard or the exact consequences that were encountered should have been foreseen.”).

27 Elliot v.Turner Constr. Co., 381 F.3d 995, 1006 (10th Cir. 2004).

28 See United States v. Brunner, No. 5:08cr16, 2010 WL 148433, at *3 (W.D.N.C. Jan. 12, 2010) (“[N]o circuit to address the issue [of causal harm] has ‘imposed a requirement of causation approaching mathematical precision’ when determining the amount of restitution that is appropriate.”) (citing United States v. Doe, 488 F.3d 1154, 1159-60 (9th Cir. 2007)). See also United States v. Aumais, No. 08-CR-711, 2010 WL 3033821, at *2 (N.D.N.Y. Jan. 13, 2010) (Homer, Mag.) (finding the causal requirement of § 2259 “does not require proof ‘approaching mathematical precision’”) (citing Doe, 488 F.3d at 1160) (adopted by United States v. Aumais, No. 8:08-CR-711, 2010 WL 3034730 (N.D.N.Y. Aug. 3, 2010).

29 Doe, 488 F.3d at 1160.

30 See, e.g., United States v. Crandon, 173 F.3d 122, 126 (3rd Cir. 1999) (holding district court did not abuse its discretion in finding proximate causation between defendant’s receipt of child pornography and victim’s hospitalization, and thus awarding restitution, because “it was entirely reasonable for the District Court to conclude that the additional strain or trauma stemming from [defendant’s] actions was a substantial factor in causing the ultimate loss.”); Hardy, 707 F. Supp. 2d at 614, (finding proximate causation requirement satisfied by showing defendant’s distribution, receipt, and possession was a “substantial factor in [Amy’s] psychological harm and economic losses”); Aumais, 2010 WL 3033821, at *5 (“Proximate causation does not require proof that the conduct in question was the sole cause of harm or even the greatest cause as long as the conduct was a substantial factor in causing the harm.”).

31 See, e.g., Goff, 501 F.3d at 259 (stating that “[t]he simple fact that the images have been disseminated perpetuates the abuse initiated by the producer of the materials[,]” which “directly contribute[s] to this continuing victimization[,]” and continuing “the victims are no less damaged for his having remained safely at home …”); Norris, 159 F.3d at 930 (“[T]he victimization of a child depicted in pornographic materials flows just as directly from the crime of knowingly receiving child pornography as it does from the arguably more culpable offenses of producing or distributing pornography.”); Brunner, 2010 WL 148433, at *2 (finding defendant’s possession was a proximate cause of injury, stating “[i]n receiving and possessing the pornographic images of [the victims] taken while they
were children, Defendant participated in an ongoing cycle of abuse and thereby contributed to the victims’ mental and emotional trauma.”).

32 See, e.g., Hardy, 707 F. Supp. 2d at 614 (finding defendant convicted of distributing, receiving, and possessing child pornography was a “substantial factor in [Amy’s] psychological harm and economic losses” because the defendant’s conduct aided in the circulation of the images, and the circulation caused harm to the victim); Aumais, 2010 WL 3033821, at *6 (finding defendant convicted of transportation and possession
was a substantial factor in causing Amy’s harm because “the government ha[d] established … that [the victim] was depicted in child pornography, [that] those who possessed … the images of [her] exacerbated the harm to her … by creating a market for the transfer of the images and … expanding the humiliation and degradation which Amy experiences from the existence of the images, and that [defendant] was one such possessor … of [the] images.”); Hicks, 2009 WL 4110260, *4 (finding “ample evidence that when [defendant] sought to receive the pornographic images depicting [the victim’s] abuse, his actions presented a sufficiently proximate tie to her ongoing injuries to justify an award of restitution under § 2259”). See generally Zane, 2009 WL 2567832, *4 (finding the government met its burden of showing that a defendant possessing pornographic images of Amy and another victim caused harm to them); Monk, 2009 WL 2567831, at *4 (same); Renga, 2009 WL 2579103, *4 (same); Ferenci, 2009 WL 2579102, at *4 (same) United States v. Scheidt, 1:07-CR-00293
AWI, 2010 WL 144837, *4 (E.D. Cal. Jan. 11, 2010) (same).

33 See Aumais, 2010 WL 3033821 at *5-6 (“The question of the substantiality, importance, and significance of the harm caused concerns the extent of that harm and not the comparative responsibility for the harm. … That harm is not obviated or diminished by the fact that others also possessed the images. Rather, it exacerbates the harm by confirming how expansive has become the number of individuals exploiting Amy’s images.”). See also Hardy, 707 F. Supp. 2d at 614 (finding defendant to be a proximate cause of Amy’s harm even though her images would be circulating on the internet if it were not for defendant).

34 See, e.g. Staples, 2009 WL 2827204, at *3 (“The fact that the victim, ‘Amy,’ did not have personal knowledge of this defendant’s activities at the time she was evaluated by [the expert] does not negate the harm that ‘Amy’ suffered and continues to suffer as a result of this defendant’s possession of images depicting her sexual abuse as a child.”); Aumais, 2010
WL 3033821 at *6 (“Actual knowledge by Amy that [defendant] possessed and used her images is not required to establish causation.”).

35 While a thorough discussion is beyond the scope of this article, it should be noted that several courts have addressed whether finding a possessing defendant liable for the full amount of damages violates the excessive fines provision of the Eighth Amendment; if, however, a court finds proximate causation has been established, then there is no Eighth Amendment issue. See Hardy, 707 F. Supp. 2d at 616 (noting that since it found that defendant was a proximate cause of Amy’s harm, “an award of restitution that approximates those harms will satisfy the Eighth Amendment”).

36 18 U.S.C. § 3771 (providing that victims have the right to “restitution as provided by law”).

37 Numerous courts have found that future counseling expenses are appropriate under § 2259 (awarding $475,800 for future treatment and counseling costs to Amy under § 2259); Aumais, 2010 WL 3033821, at *9 (awarding $48,483 to Amy under § 2259 for future counseling services); Brunner, 2010 WL 148433, at *4 (awarding $5000 to Amy under § 2259 for future counseling services); United States v. Julian, 242 F.3d 1245, 1248 (10th Cir. 2001) (finding it was appropriate to order future counseling costs under § 2259); United States v. Danser, 270 F.3d 451, 455 (7th Cir. 2001) (“In light of Congress’s intent to make whole those victims of sexual exploitation, we find that section 2259 allows for restitutionary damages for the future costs of therapy.”); Laney, 189 F.3d at 966 (“The language of the relevant statutes shows that Congress intended to allow district courts to include future counseling expenses in the amount of restitution under section 2259.”).

38 Numerous courts have found that future lost wages are appropriate under either § 2259 or the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A is incorporated by reference in § 2259). See, e.g., Staples, 2009 WL 2827204, at *4 (awarding $3.2 million for future lost wages and employee benefits to Amy); Brunner, 2010 WL 148433, at *4 (awarding $1000 to Amy for future lost earnings); United States v. Serawop, 409 F.Supp.2d 1356, 1358 (D. Utah 2006), aff’d, 505 F.3d 1112 (10th Cir. 2007) (awarding future lost income under the MVRA ); United States v. Cienfuegos, 462 F.3d 1160, 1169 (9th Cir. 2006) (finding it was error for district court to deny future lost income under the MVRA); United States v. Oslund, 453 F.3d 1048, 1063 (8th Cir. 2006) (finding an award of future lost income to be appropriate under the MVRA). See generally Koile v. State, 934 So.2d 1226, 1234 (Fla. 2006) (finding the restitution statute authorized a restitution award to the estate of murder victim in an amount consisting of victim’s future lost income).

39 Attorneys who want assistance with such pleading can contact the National Crime Victim Law Institute, The National Alliance of Victims’ Rights Attorneys, or the National District Attorneys Association to obtain technical assistance and sample pleadings.

Child Pornography Victims Abandoned at the Supreme Court

Last week, the Solicitor General filed this brief with the United States Supreme Court which effectively denies child victims the ability to obtain criminal restitution from the thousands of child molesters and pedophiles who collect and share child pornography.

The defendant in the case currently pending before the Supreme Court, Amy v. Monzel, admitted to law enforcement that he sexually abused his granddaughter and traded images of girls being sexually abused. A search of his home uncovered more than 800 child sex abuse images including pictures of Amy, the victim in this case. The defendant pleaded guilty to distributing child pornography and was sentenced to 10 years in prison.

The District court ordered the defendant to pay just $5000 in criminal restitution to Amy, a girl whose rape and sexual abuse images were found in his collection. That award was overturned on appeal. Amy then appealed to the Supreme Court where three amici joined her in asking the Court to take the case.

Despite supporting the victims in the lower courts, the government abandoned victims of child pornography at the Supreme Court by asking the Court not to review the Court of Appeals’ denial of restitution. The Solicitor General's position on this issue effectively strips victims of child pornography the ability to obtain criminal restitution from any of the thousands of child molesters and pedophiles who collect and share their child sex abuse images.

The Solicitor General is essentially asking the Supreme Court to uphold a standard of proof that government cannot meet. During the past two years, the government has failed in hundreds of cases throughout the country to convince federal judges that the standard they are now defending in the Supreme Court will result in any restitution for victims of child pornography. In July, the government lost this case in the Ninth Circuit on just this issue and decided not to appeal to the Supreme Court.

Victims of child pornography deserve their day in court. Three amicus filed briefs in the Supreme Court supporting this basic right, highlighting the importance of this issue for children who are sexually abused and exploited through child pornography.

As a candidate in 2008, President Obama supported the death penalty for defendants convicted of raping a child. Now the Solicitor General is promoting a standard which will save some of these same defendants from paying restitution to their victims. While millionaire child molesters are housed in government prisons at taxpayer expense, child sex abuse victims like Amy must rely on public assistance and charity to take care of their most basic needs.

When Congress—led by then Senator and now Vice President Biden—passed the child pornography restitution statute in 1994, it made restitution mandatory for victims. In fact, Congress felt so strongly that every child pornography victim receive the “full amount” of their losses that it used the word mandatory twice in the statute. Despite this clear requirement, federal courts throughout the country are confused and their often arbitrary approaches have led to widely differing outcomes for victims. A deepening split among the Courts of Appeals and the district courts require a decisive decision and direction that only the Supreme Court can provide.

Only the Supreme Court can conclusively guarantee a child pornography victim's right to restitution. Justice delayed is justice denied. Victims of child pornography have waited and suffered long enough.

Child Pornography Restitution Now Before the Supreme Court

Two years ago, the Marsh Law Firm filed the first-ever request for federal criminal restitution against a convicted child pornography collector. Since then, we have filed over 700 requests for restitution in every federal district court in the country.

Despite a few decisive victories, a child pornography victim's right to restitution is being curtailed in circuit after circuit. Recent federal Circuit Court decisions have effectively barred restitution in the Second and Ninth Circuit and the District of Columbia Circuit. Only in the Fifth Circuit—encompassing the states of Texas, Louisiana and Mississippi—is restitution still mandatory.

When Congress passed the child pornography restitution statute in 1994, it made restitution mandatory for victims. In fact, Congress felt so strongly that every child pornography victim receive the “full amount” of their losses that it used the word mandatory twice in the statute. Despite this clear requirement, many federal courts have sought to limit the amount that convicted child pornography collectors pay their victims by forcing victims to prove precisely how much each individual defendant injured them.

The federal district courts are also severely divided on how to interpret the child pornography restitution statute. Some district courts have held that victims seeking restitution need not establish proximate cause. Other district courts have read a general proximate cause requirement into the statute and then concluded that proximate cause was not established.

Still other district courts read a general proximate cause requirement (or in some courts simply “causation”) into the statute and then find that the victim provided sufficient proof to obtain at least some restitution. The approaches are often arbitrary and have led to widely differing outcomes. For example, a few district courts have
awarded “nominal” restitution in an arbitrary amount, sometimes as low as $100.

The Fifth Circuit got it right in March when it found that “[c]ourts are required to award victims of child sex abuse ‘the full amount of the victim’s losses.’” It held that “Congress abandoned the proximate causation language that would have reached all categories of harm … This change is consistent with the reasons for enacting a second generation of restitution statutes. The evolution in victims’ rights statutes demonstrates Congress’s choice to abandon a global requirement of proximate causation.”

Last month, in an effort to restore a child pornography victim's rapidly eroding right to restitution, the Marsh Law Firm filed a Petition for a Writ of Certiorari in the United States Supreme Court. Only the Supreme Court can conclusively resolve this issue and guarantee a victim's right to restitution under the child pornography restitution statute. A deepening split amongst the federal circuits and the district courts require a decisive decision and direction that only the Supreme Court can provide.

A coalition of child advocates recently filed three separate amicus briefs supporting our request for Supreme Court review. This rare occurrence will hopefully put the issue of child victim restitution squarely before the Court which is now considering whether or not to accept our case.

Thank you to all the amici who spent a significant amount of time and effort to get these uncommon amicus briefs filed during the summer months. Child victims are grateful for your tireless work on their behalf now and in the future.

Click on the links to read the briefs by the National Center for Missing and Exploited Children, the National Crime Victim Law Institute and the National Association to Protect Children.

The Marsh Law Firm's Petition for Cert is here.

No Neglect by Mother who Mistakingly Left Child Home Alone

Last month the New Jersey Supreme Court in Dept of Children & Families, Div. of Youth & Family Servs. v. T.B. held that a finding of neglect was improperly entered against a mother who left her four-year-old child unsupervised for two hours under the mistaken belief that his grandmother was in the home.

Susan and her then four-year-old-son, John, were living with Susan’s mother, Mary, and step-father, Jim, who assisted in caring for John on a regular basis. Although Susan and John lived downstairs, the entire house was accessible to John and he moved freely to the upstairs portion of the home where his grandparents lived.

On Sunday, March 25, 2007, Susan and John returned home between 7:00 p.m. and 7:30 p.m. Susan immediately put John to bed and, with the belief that Mary was home, went to eat dinner with a friend. Susan believed that Mary was home sleeping because she saw Mary’s car in the driveway; Mary had been ill all week with the flu; Mary was always home on Sunday nights to prepare for work on Monday morning; and Jim worked on Sunday nights.

Mary, however, was not home because she and Jim took an impromptu trip to New York. Shortly after 9:00 p.m., John woke up and discovered that he was alone. He left the house, crossed the street, and told his neighbor that he could not find his mother. The police department was contacted. When Susan returned from dinner between 9:30 p.m. and 10:00 p.m. she was transported to the police station, where she gave a handwritten statement.

Mary and Jim returned from New York and attested to the impromptu nature of their trip and that Mary is always home on Sunday nights. No criminal charges were filed against Susan and the matter was turned over to DYFS.

DYFS substantiated the neglect allegation against Susan based upon inadequate supervision under New Jersey law.

Susan filed an appeal and the matter was referred to the Office of Administrative Law. After a hearing, the Administrative Law Judge (ALJ) recommended dismissal of the charges against Susan, concluding that DYFS did not prove by a preponderance of evidence that the physical, mental, or emotional condition of Susan’s child was impaired or was in imminent danger of becoming impaired as a result of her failure to exercise a minimum degree of care.

The DYFS Director rejected the ALJ’s decision and reinstated DYFS’s finding substantiating child neglect against Susan. The DYFS Director observed that Susan failed to take the cautionary actions of supervision that are expected and, although John was not harmed, the omission exposed him to a substantial risk of harm.

The Appellate Division affirmed. The Appellate Division was satisfied that sufficient credible evidence existed in the record to support the Director’s finding that Susan failed to exercise the minimum degree of care required under New Jersey law and concluded that Susan had placed John at substantial risk of harm by failing to ensure that her mother or step-father was at home before leaving the house.

The New Jersey Supreme Court granted Susan’s petition for certification.

The Court held that Susan did not fail to “exercise a minimum degree of care” under New Jersey law because her conduct did not rise to the level of gross negligence or recklessness. Therefore, her name must be removed from the Child Abuse Registry.

The Court explained that Susan’s conduct did not constitute a failure to “exercise a minimum degree of care.” Susan did not leave her son at home alone knowing there was no adult supervision.

Instead, Susan, who lived with her parents and is intimately familiar with the rhythms of their every-day-family-life, arrived at her home on a Sunday night and saw her mother’s car in the driveway. She knew that her mother was always home on Sunday nights and that her mother had been ill all week with the flu. Further, her mother and step-father attested that Susan’s mother is always home on Sunday nights and that the trip to New York was unexpected. What occurred was totally out of the ordinary.

The Court concluded that although Susan’s failure to perform the cautionary act of assuring her mother’s presence was clearly negligent, under all of the circumstances known to her it did not rise to the level of gross negligence or recklessness.

Teen Facebook Hacker Convicted of Felony Identity Theft

Last month a California state Court of Appeal ruled in In re Rolando S. that a teenage boy committed felony identity theft when he accessed a girl's account, altered her profile and posted obscene messages and comments.

The boy was one of several recipients of an unsolicited text message providing the password to the victim’s email account. He used the victim’s email and password to gain access to her Facebook account where he posted, in her name, the following messages:

On a male classmate’s wall: “I want to stick your dick in my mouth and then in my pussy and fuck me really hard and cum on my face.”

On another male classmate’s wall: “When we were dating we should have had sex. I always thought you had a cute dick, maybe we can have sex sometime.”

On the victim’s profile description: “Hey, Face Bookers, [sic] I’m [S.], a junior in high school and college, 17 years young, I want to be a pediatrician but I’m not sure
where I want to go to college yet. I have high standards for myself and plan to meet them all. I love to suck dick.”

The victim found out about the messages and informed
her father who removed the messages from her account and called the police. The boy admitted that he posted the messages and altered the victim's profile.

A juvenile petition was filed alleging one count of "willfully obtaining personal identifying information and using it for an unlawful purpose" in violation of California state law.

The boy was found guilty in juvenile court and sentenced to a juvenile academy for between 90 days and one year and placed on probation.

The boy argued that since he made no effort to obtain the password, instead passively receiving the text message on his cell phone “without his prior knowledge or consent,” he did not “willfully” obtain the victim’s email account
password for purposes of the statute.

The Court of Appeal rejected this argument, holding that the boy "willfully obtained the victim’s password when he chose to remember the password from the text message, and
later affirmatively used the password to gain access to the victim’s electronic accounts."

The boy next contended that his conduct failed to satisfy the second element; that he “use[d] [the victim’s] information for any unlawful purpose.” He reasoned that at most he “possibly defamed” the victim, but asserted that civil torts do not constitute an “unlawful purpose” for purposes of the statute.

The Court also rejected this argument explaining that intentional civil torts, such as libel, constitute an “unlawful purpose” for purposes of the statute.

The Court affirmed the juvenile court's sentence.

For years commentators and technology experts have bemoaned the lack of traditional legal remedies in the brave new world of The Internet. Now more and more courts are finding that good old legal theories such as theft, defamation and invasion of privacy can and do apply in the digital realm, if only judges and lawyers have the courage to apply them.

Legal marijuana possession = child abuse?

Today's New York Times contains an article about state child welfare investigations of parents who legally possess marijuana:

The police found about 10 grams of marijuana, or about a third of an ounce, when they searched Penelope Harris’s apartment in the Bronx last year. The amount was below the legal threshold for even a misdemeanor, and prosecutors declined to charge her. But Ms. Harris, a mother whose son and niece were home when she was briefly in custody, could hardly rest easy.

The police had reported her arrest to the state’s child welfare hot line, and city caseworkers quickly arrived and took the children away.

Her son, then 10, spent more than a week in foster care. Her niece, who was 8 and living with her as a foster child, was placed in another home and not returned by the foster care agency for more than a year. Ms. Harris, 31, had to weather a lengthy child neglect inquiry, though she had no criminal record and had never before been investigated by the child welfare authorities, Ms. Harris and her lawyer said.

“I felt like less of a parent, like I had failed my children,” Ms. Harris said. “It tore me up.”

Hundreds of New Yorkers who have been caught with small amounts of marijuana, or who have simply admitted to using it, have become ensnared in civil child neglect cases in recent years, though they did not face even the least of criminal charges, according to city records and defense lawyers. A small number of parents in these cases have even lost custody of their children.

New York City’s child welfare agency said that it was pursuing these cases for appropriate reasons, and that marijuana use by parents could often hint at other serious problems in the way they cared for their children.

Is this good case work or child protection overkill?

Now consider this. Yesterday, the Ninth Circuit Court of Appeals decided in Dougherty v. City of Covina that a warrant to search a suspected child molester's computer was illegal when the only evidence linking the suspect to possession of child pornography was the experience of the requesting police officer.

In other words, while NYC caseworkers have lawful authority to remove kids from parents who possess legal amounts of marijuana based solely on their training and experience, law enforcement officials cannot search the computers of suspected child molesters based solely on their training and experience.

Should child welfare case workers be governed by the same Fourth Amendment constraints as law enforcement officers? Should a case worker be allowed to search the computers of suspected child sex abusers without a warrant? Is searching a computer any different from searching a refrigerator and finding a small amount of marijuana?

Handling Lost/Destroyed Records in Child Welfare Tort Litigation

A recently published article in the American Bar Association's Child Law Practice examines the potential effects of failing to preserve or produce evidence in the child welfare context. Best practices are offered from three perspectives—the plaintiff, the defending agency, and the court.

Litigation involving public and private social services agencies should make administrators and attorneys keenly aware of the obligation to preserve evidence. Across the country, torts regarding individual children in the child welfare system are common.

Professor Daniel Pollack and his co-author Associate Professor Dale Margolin explain that while lost records are common in child welfare torts, the issue has long been overlooked by litigators and courts. Recently, however, it is starting to receive attention. Attorneys and judges must be mindful of incomplete, altered, and destroyed case records. This includes taking preventative steps, while also being prepared to ask for evidentiary and other sanctions or pursuing separate tort actions when lost or destroyed records are harming a party.

Contact Professor Pollack by email for a copy of this timely in-depth article.

Caylee Anthony - killed for child pornography?

Child advocate Wendy Murphy has a compelling blog entry about the Casey Anthony acquittal entitled "Not Guilty Verdict is the Right Result - But We're Not Done Yet."

Murphy argues that "Justice for Caylee is still possible, notwithstanding the acquittal, if people call for full disclosure of the entire investigative file - including an unsealing of the evidence thus far hidden from public view. Release of the photographs of Caylee that were seized from the Anthony home and placed “under seal” by the court would be a good place to start."

Law enforcement may have discovered "sexualized" images of Caylee on the Anthony family computers which were placed under seal to avoid prejudicing the jury. Murphy believes that "The style of Caylee’s death was more mob hit than parental homicide."

Murphy's most powerful argument for the Caylee Anthony child-sex-ring-victim theory is:

In fact, while a child might die after having her mouth taped shut, the most rational view of the duct tape evidence suggests the child died before the duct tape was applied and that the tape was meant only to hold in decomposition fluids. When a dead body beings to decompose, fluids emanate from places like the nose and mouth, and they emit putrid odors. The best way for a killer to delay detection is to seal the nose and mouth.

It’s certainly possible that at age 19, a high school dropout like Casey with no experience as a killer, nonetheless knew how to seal a dead body like a master murderer. And it’s true that her failure to report Caylee missing for more than a month is powerful evidence of her consciousness of guilt. The question is - guilt about what? It’s just as possible Casey did not kill her child; that she was afraid to call the cops - and that her fear was related to those sealed photographs.

As Casey’s brother Lee testified at trial, Casey was told that Caylee was taken from Casey to “teach her a lesson”. If, as I wrote in an earlier column, Casey knew the people who had Caylee, and stayed quiet in the hope they would give her child back, her failure to report Caylee missing makes sense.

Child pornography can be a big business which is much cheaper and safer than drug smuggling or human trafficking. A vulnerable mother with a drug debt and a small child is the perfect target for child pornography producers. There are hundreds of cases in which parents "sell" their children for drugs or cash. The children of prostitutes often end up involved in prostitution and child pornography. It's tragically easy to dispose of the "evidence" in a country where hundreds of thousands of children go missing each year.

Murphy has surprisingly taken some heat for her theory, but anyone who knows the reality behind the sordid world of child pornography and exploitation will find her analysis neither far-fetched nor hyperbolic.

In an interesting aside, the prosecutor in the Anthony case is also the prosecutor who vowed to send Masha Allen's rapist, Matthew Mancuso, to the Florida death chamber. Mancuso initially faced eight counts of capital sexual battery which could have made him eligible for the death penalty. Despite the fact that there were pictures of him raping his 10 year old adopted daughter at Disney World, Mancuso was allowed to plead guilty to attempted sexual battery. According to Florida law, "criminal attempt" means a person who attempts to commit an offense but fails in the perpetration of that offense. Inexplicably, Mancuso was allowed to plead down from a death sentence to just 14 years in prison.

The Mancuso case also contained controversial sealed evidence in the form of two highly unusual video-taped depositions of Faith and Masha Allen. Shortly after the depositions, the Florida state's attorney agreed to the lowest possible plea. Maybe having pictures as evidence doesn't matter after all.

Abused Child Victim Denied Lawyer at Psych Exam

Last month, a federal judge ruled that a child who is suing the Boy Scouts for emotional distress for abuse at a faith-based military camp is not entitled to have his lawyer present during a psychiatric examination.

In M.S. et al v. Cedar Bridge Military Academy et al, federal Magistrate Judge Martin C. Carlson found that a lawyer's presence "interjects an adversarial, partisan atmosphere into what should be otherwise a wholly objective inquiry."

Judge Carlson explained that there is a conflict between federal civil procedure and the Pennsylvania rules. The federal rule and case law discourage any observers, while Pennsylvania's Rule 4010 permits lawyers to attend such examinations.

The judge concluded that Rule 4010 is not a "rule of substance" that is binding on the federal courts, but rather "is simply a procedural preference which does not control our exercise of discretion" under Rule 35 of the Federal Rules of Civil Procedure.

Rule 35, however, allows the court to determine “the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.” Rule 35 "consigns the procedures to be used in conducting these examinations to the sound discretion of the court, an approach that is consistent with the general guidance of the rules which provide that issues relating to the scope of discovery rest in the sound discretion of the Court."

Clearly, under this analysis, Judge Carlson could have allowed the victim's parents or attorney to be present during the exam subject to whatever reasonable "conditions" the court imposed. Judge Carlson recognized that "[i]n considering this question, we note that the exercise of our discretion compels a choice between conflicting guidance. Rule 35 does not, by its terms, specify who may attend a psychiatric examination undertaken in connection with civil litigation."

There was no discussion that this case involves a child victim nor any consideration of the child's maturity or any special circumstances which would necessitate the attorney's presence at the exam.

Court Okays Student's MySpace Principal Parody

The Third Circuit Court of Appeals has finally ruled that school officials cannot discipline students for ridiculing their principals on MySpace during their hours away from school.

As I discussed last year in the blog here, the Court agreed to re-hear both cases en banc (with the Court's entire 14 judges considering the case). In the first, J.S. v. Blue Mountain School District, the judges were sharply split, voting 8-6 to overturn a 10-day suspension of a student who posted a fake profile on MySpace that portrayed the principal as a pedophile and a sex addict.

The majority opinion rejected the school district's argument that such lewd speech—even when it occurs off campus—may be punished if it targets school officials and has the potential to create a disturbance at school. Such a determination "would vest school officials with dangerously overbroad censorship discretion."

The Court found that the student had created the fake profile "as a joke," and took steps to make it private so that it would be accessible only to her and her friends.

While it was "indisputably vulgar," it was also "so juvenile and nonsensical that no reasonable person could take its content seriously."

The Court concluded that lewdness and a connection to the school community was not enough to satisfy the Tinker and Fraser tests. In order for the Court to rule for the school district, the explained that it would be forced to "adopt a rule that allows school officials to punish any speech by a student that takes place anywhere, at any time, as long as it is about the school or a school official, is brought to the attention of a school official, and is deemed 'offensive' by the prevailing authority."

The second case, Layshock v. Hermitage School District, was less controversial. The Court unanimously held that the school district waived any so-called Tinker defense that focuses on speech that causes disturbances at school.

The majority in that decision held that it would be "an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child's home and control his/her actions there to the same extent that it can control that child when he/she participates in school sponsored activities."

Supreme Court Tosses Child Welfare Fourth Amendment Case

Nearly a decade ago, a state child protective services worker and a county deputy sheriff interviewed then 9-year-old S.G. at her Oregon elementary school about allegations that her father had sexually abused her. They did not have a warrant or parental consent to conduct the interview. S.G. eventually stated that she had been abused. Her father stood trial for that abuse, but the jury failed to reach a verdict and the charges were later dismissed.

S.G.’s mother subsequently sued on S.G.’s behalf for damages under 42 U.S.C. §1983, alleging that the in-school interview breached the Fourth Amendment ’s proscription on unreasonable seizures. The District Court granted summary judgment to the officials and the Ninth Circuit affirmed.

The Court of Appeals first ruled that seizing S.G. absent a warrant, court order, parental consent, or exigent circumstances violated the Constitution. But the court further held that the officials were entitled to qualified immunity from damages liability because no clearly established law had warned them of the illegality of their conduct. The court explained that it had chosen to rule on the merits of the constitutional claim so that officials would be on notice that they could not dispense with traditional Fourth Amendment protections in this context.

This blog discussed this issue (but not this case) in an oft-visited 2005 post here.

In a very strange turn of events, the U.S. Supreme Court--which considered an appeal in this case--vacated the Ninth Circuit's decision concerning the applicability of the Fourth Amendment to child welfare "searches and seizures" but upheld qualified immunity for the defendant child protective services worker and county deputy sheriff.

In other words, the Court basically said that regardless of whether or not the Fourth Amendment applies in child welfare searches and seizures. the defendants had qualified immunity and could not be sued for interviewing S.G. without her parent's permission. The Court refused to answer whether or not the Fourth Amendment applies to such interviews. That issue will await another day and another case to be decided by the Supreme Court.

The full decision can be found here.