400,666 US Girls Under Ten Are Forcibly Raped

A recently released report by the Centers for Disease Control and Prevention reveals some sobering numbers: nearly 1 in 5 women have been raped in their lifetime. This statistic is widely known and almost universally accepted. But what do these numbers say about children?

According to the study, approximately 80% of female victims experienced their first rape before the age of 25 and almost half experienced the first rape before age 18 (30% between 11-17 years old and 12% at or before the age of 10).

When you crunch the numbers even more, you discover that approximately 400,666 girls under ten have experienced "completed forced penetration, attempted forced penetration, or alcohol/drug facilitated completed penetration."

This translates into six girls in each and every elementary school in the United States.
In my town, with four elementary schools, that's 24 girls.

Exactly who are these girls in your community? Who is responsible for these crimes? And who is serving these victims?


Here's how I calculated these numbers. According to the CDC, "18.3% of women in the United States have been raped at some time in their lives, including completed forced penetration, attempted forced penetration, or alcohol/drug facilitated completed penetration." Of this 18.3%, 12% were raped "at or before the age of 10." Doing the math, 12% of 18.3% is 2%. According to the United States Census, there are approximately 152,925,887 women in the United States. Of these, 6.7% are under 5 years old and 6.4% are 5 to 9 years old. Add 6.7% and 6.4% and you get 13.1% of the population are girls ages 0 to 9 - the target population. This translates to 20,033,291 girls ages 0 to 9 in the United States. If 2% of those 20 million girls experience rape, that's 400,666 girls.



According to the National Center for Education Statistics, there are 67,148 elementary school in the United States. 400,666 girls divided by 67,148 elementary school equals 6 girls per elementary school who experience "forced penetration, attempted forced penetration, or alcohol/drug facilitated completed penetration" before their tenth birthday.

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.

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.

New York Times Reports on Marsh Law Firm's Restitution Efforts

In a follow-up to a February 2010 profile of the Marsh Law Firm's groundbreaking work pursuing federal criminal restitution for victims of child pornography, the New York Times released this story today about a decision in the Second Circuit.

A victim of child pornography seeking restitution should not receive court-ordered payments from those who possessed the images but had no hand in creating them, a federal appeals panel ruled Thursday. The young woman, referred to in court papers as Amy, was known as “Misty” in pornographic images created by her uncle. The uncle was convicted and imprisoned on child pornography charges, but the images continue to be widely circulated and downloaded.

Since then, Amy’s lawyers have entered pleas in hundreds of child pornography possession cases around the country seeking payment for their client’s lost wages and counseling through federal criminal restitution statutes, asking for more than $3 million in each case. They have submitted nearly 700 of these pleas, and have recovered $345,000 so far.

Some federal district courts have granted nothing, stating that the link between Amy’s harm and the act of possession is too tenuous to support a restitution order. A Florida court ordered the full $3,680,153, with others in between.

The Second Circuit decision may be the toughest of several recent rulings in cases involving Amy; a decision out of the 11th Circuit upheld the restitution award, while others have denied payment.

Paul G. Cassell, a former federal judge and Utah law professor who has joined Amy’s legal team for appellate argument, said that with federal circuits divided, “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.”

Amy's fight for justice is far from over, however, and her case is already pending in the Supreme Court. More on this in the coming days. For now, read the full story on the New York Times website here.

Fifth Circuit Issues Landmark Ruling for Child Victims

Late yesterday, the Fifth Circuit Court of Appeals in New Orleans adopted my longstanding position that there is no general proximate cause requirement governing restitution for victims of child pornography.

Since the New York Times wrote this story last year about our firm's effort to obtain restitution for a child pornography victim known as "Amy," hundreds of federal district courts across the country have denied restitution or issued de minimus restitution orders on her behalf.

The Fifth Circuit's unprecedented decision held that proximate cause is not a general requirement when deciding restitution and only applies to one open ended provision in the list of enumerated damages in the restitution law written by then-Senator Joe Biden as part of his landmark 1994 Violence Against Women Act (VAWA).

What makes this decision exceptional is that it was decided under a higher standard of review which is limited to mandamus - a rarely used procedural mechanism to bring an appeal. Mandamus requires that the lower court’s decision be “clearly and indisputably wrong” instead of standard “de novo” appellate review.

In December 2009, we sought both mandamus and standard appellate review of an adverse restitution decision issued in the Eastern District of Texas. The Fifth Circuit initially ruled 2-1 against our position, but consolidated and reconsidered our appeal last year.

Oral argument was held in early November with former federal judge Professor Paul Cassell skillfully presenting Amy's case.

In issuing its decision, the Court adopted our long-established argument that proximate cause does not apply to the entire restitution statute, just to one subsection of the statute.

This decision will make it much easier for victims of child pornography and exploitation to hold each and every criminal defendant liable in restitution for the “full amount” of their damages.

Writing for the three judge panel, Chief Judge Edith H. Jones conclusively held that even under heightened mandamus review, the district court’s decision to deny Amy restitution because the government failed to prove what losses, if any, were proximately caused by the defendants possession of two pornographic images, was “clearly and indisputably wrong.”

The structure and language of § 2259(b)(3) impose a proximate causation requirement only on miscellaneous “other losses” for which a victim seeks restitution. . . . Comparing the language of § 2259 with other restitution statutes affirms the conclusion that proximate causation applies only to the catchall category of harms.

The Court concluded that:

Restricting the “proximate result” language to the catchall category in which it appears does not open the door to limitless restitution. The statute itself includes a general causation requirement in its definition of a victim: “For purposes of this section, the term ‘victim’ means the individual harmed as a result of a commission of a crime under this chapter . . .” 18 U.S.C. § 2259(c). (emphasis added). . . . Given the statute’s built-in causation requirement and the volume of causation evidence in the context of child pornography, fears over excessive punishment are misplaced. . . . Incorporating a proximate causation requirement where none exists is a clear and indisputable error. Amy is entitled to receive restitution under the Crime Victim Rights Act.

We do not yet know if either the United States or the defendant will seek review by the full court or appeal the decision to the United States Supreme Court.

Darkness of Child Sex Abuse Leads to Suicide

Bill Zeller, a Princeton Ph.D candidate and renowned internet programmer, died Wednesday from injuries sustained in a suicide attempt. He was 27.


Zeller stunned everyone with a 4,000-word suicide note detailing a childhood of physical and sexual abuse which he had never before disclosed to anyone.


Presumably, Zeller's sexual abuse was not captured on film for the entire pedophile world to share and celebrate repeatedly in perpetuity. Sadly, most child pornography defendants minimize the impact of their criminal behavior on victims who can never escape this constant reminder of their initial abuse and exploitation. Unfortunately, many judges agree holding that although victims are "harmed" by child pornography possession, they aren't damaged in any measurable way.


Zeller's confession is so compelling, not only because it highlight the lifelong hell which victims experience, but because it describes a hell which is untainted by the constant reminder of child pornography. Add child pornography to Zeller's story and you can begin to imagine the hurt and pain suffered by the victims like Amy, Vicky and Masha Allen.


Zeller's suicide note is reproduced here in it's entirety:

I have the urge to declare my sanity and justify my actions, but I assume I'll never be able to convince anyone that this was the right decision. Maybe it's true that anyone who does this is insane by definition, but I can at least explain my reasoning. I considered not writing any of this because of how personal it is, but I like tying up loose ends and don't want people to wonder why I did this. Since I've never spoken to anyone about what happened to me, people would likely draw the wrong conclusions.


My first memories as a child are of being raped, repeatedly. This has affected every aspect of my life. This darkness, which is the only way I can describe it, has followed me like a fog, but at times intensified and overwhelmed me, usually triggered by a distinct situation. In kindergarten I couldn't use the bathroom and would stand petrified whenever I needed to, which started a trend of awkward and unexplained social behavior. The damage that was done to my body still prevents me from using the bathroom normally, but now it's less of a physical impediment than a daily reminder of what was done to me.


This darkness followed me as I grew up. I remember spending hours playing with legos, having my world consist of me and a box of cold, plastic blocks. Just waiting for everything to end. It's the same thing I do now, but instead of legos it's surfing the web or reading or listening to a baseball game. Most of my life has been spent feeling dead inside, waiting for my body to catch up.


At times growing up I would feel inconsolable rage, but I never connected this to what happened until puberty. I was able to keep the darkness at bay for a few hours at a time by doing things that required intense concentration, but it would always come back. Programming appealed to me for this reason. I was never particularly fond of computers or mathematically inclined, but the temporary peace it would provide was like a drug. But the darkness always returned and built up something like a tolerance, because programming has become less and less of a refuge.


The darkness is with me nearly every time I wake up. I feel like a grime is covering me. I feel like I'm trapped in a contimated body that no amount of washing will clean. Whenever I think about what happened I feel manic and itchy and can't concentrate on anything else. It manifests itself in hours of eating or staying up for days at a time or sleeping for sixteen hours straight or week long programming binges or constantly going to the gym. I'm exhausted from feeling like this every hour of every day.


Three to four nights a week I have nightmares about what happened. It makes me avoid sleep and constantly tired, because sleeping with what feels like hours of nightmares is not restful. I wake up sweaty and furious. I'm reminded every morning of what was done to me and the control it has over my life.


I've never been able to stop thinking about what happened to me and this hampered my social interactions. I would be angry and lost in thought and then be interrupted by someone saying "Hi" or making small talk, unable to understand why I seemed cold and distant. I walked around, viewing the outside world from a distant portal behind my eyes, unable to perform normal human niceties. I wondered what it would be like to take to other people without what happened constantly on my mind, and I wondered if other people had similar experiences that they were better able to mask.
Alcohol was also something that let me escape the darkness. It would always find me later, though, and it was always angry that I managed to escape and it made me pay. Many of the irresponsible things I did were the result of the darkness. Obviously I'm responsible for every decision and action, including this one, but there are reasons why things happen the way they do.


Alcohol and other drugs provided a way to ignore the realities of my situation. It was easy to spend the night drinking and forget that I had no future to look forward to. I never liked what alcohol did to me, but it was better than facing my existence honestly. I haven't touched alcohol or any other drug in over seven months (and no drugs or alcohol will be involved when I do this) and this has forced me to evaluate my life in an honest and clear way. There's no future here. The darkness will always be with me.


I used to think if I solved some problem or achieved some goal, maybe he would leave. It was comforting to identify tangible issues as the source of my problems instead of something that I'll never be able to change. I thought that if I got into to a good college, or a good grad school, or lost weight, or went to the gym nearly every day for a year, or created programs that millions of people used, or spent a summer or California or New York or published papers that I was proud of, then maybe I would feel some peace and not be constantly haunted and unhappy. But nothing I did made a dent in how depressed I was on a daily basis and nothing was in any way fulfilling. I'm not sure why I ever thought that would change anything.


I didn't realize how deep a hold he had on me and my life until my first relationship. I stupidly assumed that no matter how the darkness affected me personally, my romantic relationships would somehow be separated and protected. Growing up I viewed my future relationships as a possible escape from this thing that haunts me every day, but I began to realize how entangled it was with every aspect of my life and how it is never going to release me. Instead of being an escape, relationships and romantic contact with other people only intensified everything about him that I couldn't stand. I will never be able to have a relationship in which he is not the focus, affecting every aspect of my romantic interactions.


Relationships always started out fine and I'd be able to ignore him for a few weeks. But as we got closer emotionally the darkness would return and every night it'd be me, her and the darkness in a black and gruesome threesome. He would surround me and penetrate me and the more we did the more intense it became. It made me hate being touched, because as long as we were separated I could view her like an outsider viewing something good and kind and untainted. Once we touched, the darkness would envelope her too and take her over and the evil inside me would surround her. I always felt like I was infecting anyone I was with.


Relationships didn't work. No one I dated was the right match, and I thought that maybe if I found the right person it would overwhelm him. Part of me knew that finding the right person wouldn't help, so I became interested in girls who obviously had no interest in me. For a while I thought I was gay. I convinced myself that it wasn't the darkness at all, but rather my orientation, because this would give me control over why things didn't feel "right". The fact that the darkness affected sexual matters most intensely made this idea make some sense and I convinced myself of this for a number of years, starting in college after my first relationship ended. I told people I was gay (at Trinity, not at Princeton), even though I wasn't attracted to men and kept finding myself interested in girls. Because if being gay wasn't the answer, then what was? People thought I was avoiding my orientation, but I was actually avoiding the truth, which is that while I'm straight, I will never be content with anyone. I know now that the darkness will never leave.


Last spring I met someone who was unlike anyone else I'd ever met. Someone who showed me just how well two people could get along and how much I could care about another human being. Someone I know I could be with and love for the rest of my life, if I weren't so fucked up. Amazingly, she liked me. She liked the shell of the man the darkness had left behind. But it didn't matter because I couldn't be alone with her. It was never just the two of us, it was always the three of us: her, me and the darkness. The closer we got, the more intensely I'd feel the darkness, like some evil mirror of my emotions. All the closeness we had and I loved was complemented by agony that I couldn't stand, from him. I realized that I would never be able to give her, or anyone, all of me or only me. She could never have me without the darkness and evil inside me. I could never have just her, without the darkness being a part of all of our interactions. I will never be able to be at peace or content or in a healthy relationship. I realized the futility of the romantic part of my life. If I had never met her, I would have realized this as soon as I met someone else who I meshed similarly well with. It's likely that things wouldn't have worked out with her and we would have broken up (with our relationship ending, like the majority of relationships do) even if I didn't have this problem, since we only dated for a short time. But I will face exactly the same problems with the darkness with anyone else. Despite my hopes, love and compatibility is not enough. Nothing is enough. There's no way I can fix this or even push the darkness down far enough to make a relationship or any type of intimacy feasible.


So I watched as things fell apart between us. I had put an explicit time limit on our relationship, since I knew it couldn't last because of the darkness and didn't want to hold her back, and this caused a variety of problems. She was put in an unnatural situation that she never should have been a part of. It must have been very hard for her, not knowing what was actually going on with me, but this is not something I've ever been able to talk about with anyone. Losing her was very hard for me as well. Not because of her (I got over our relationship relatively quickly), but because of the realization that I would never have another relationship and because it signified the last true, exclusive personal connection I could ever have. This wasn't apparent to other people, because I could never talk about the real reasons for my sadness. I was very sad in the summer and fall, but it was not because of her, it was because I will never escape the darkness with anyone. She was so loving and kind to me and gave me everything I could have asked for under the circumstances. I'll never forget how much happiness she brought me in those briefs moments when I could ignore the darkness. I had originally planned to kill myself last winter but never got around to it. (Parts of this letter were written over a year ago, other parts days before doing this.) It was wrong of me to involve myself in her life if this were a possibility and I should have just left her alone, even though we only dated for a few months and things ended a long time ago. She's just one more person in a long list of people I've hurt.


I could spend pages talking about the other relationships I've had that were ruined because of my problems and my confusion related to the darkness. I've hurt so many great people because of who I am and my inability to experience what needs to be experienced. All I can say is that I tried to be honest with people about what I thought was true.
I've spent my life hurting people. Today will be the last time.


I've told different people a lot of things, but I've never told anyone about what happened to me, ever, for obvious reasons. It took me a while to realize that no matter how close you are to someone or how much they claim to love you, people simply cannot keep secrets. I learned this a few years ago when I thought I was gay and told people. The more harmful the secret, the juicier the gossip and the more likely you are to be betrayed. People don't care about their word or what they've promised, they just do whatever the fuck they want and justify it later. It feels incredibly lonely to realize you can never share something with someone and have it be between just the two of you. I don't blame anyone in particular, I guess it's just how people are. Even if I felt like this is something I could have shared, I have no interest in being part of a friendship or relationship where the other person views me as the damaged and contaminated person that I am. So even if I were able to trust someone, I probably would not have told them about what happened to me. At this point I simply don't care who knows.


I feel an evil inside me. An evil that makes me want to end life. I need to stop this. I need to make sure I don't kill someone, which is not something that can be easily undone. I don't know if this is related to what happened to me or something different. I recognize the irony of killing myself to prevent myself from killing someone else, but this decision should indicate what I'm capable of.


So I've realized I will never escape the darkness or misery associated with it and I have a responsibility to stop myself from physically harming others.


I'm just a broken, miserable shell of a human being. Being molested has defined me as a person and shaped me as a human being and it has made me the monster I am and there's nothing I can do to escape it. I don't know any other existence. I don't know what life feels like where I'm apart from any of this. I actively despise the person I am. I just feel fundamentally broken, almost non-human. I feel like an animal that woke up one day in a human body, trying to make sense of a foreign world, living among creatures it doesn't understand and can't connect with.


I have accepted that the darkness will never allow me to be in a relationship. I will never go to sleep with someone in my arms, feeling the comfort of their hands around me. I will never know what uncontimated intimacy is like. I will never have an exclusive bond with someone, someone who can be the recipient of all the love I have to give. I will never have children, and I wanted to be a father so badly. I think I would have made a good dad. And even if I had fought through the darkness and married and had children all while being unable to feel intimacy, I could have never done that if suicide were a possibility. I did try to minimize pain, although I know that this decision will hurt many of you. If this hurts you, I hope that you can at least forget about me quickly.


There's no point in identifying who molested me, so I'm just going to leave it at that. I doubt the word of a dead guy with no evidence about something that happened over twenty years ago would have much sway.


You may wonder why I didn't just talk to a professional about this. I've seen a number of doctors since I was a teenager to talk about other issues and I'm positive that another doctor would not have helped. I was never given one piece of actionable advice, ever. More than a few spent a large part of the session reading their notes to remember who I was. And I have no interest in talking about being raped as a child, both because I know it wouldn't help and because I have no confidence it would remain secret. I know the legal and practical limits of doctor/patient confidentiality, growing up in a house where we'd hear stories about the various mental illnesses of famous people, stories that were passed down through generations. All it takes is one doctor who thinks my story is interesting enough to share or a doctor who thinks it's her right or responsibility to contact the authorities and have me identify the molestor (justifying her decision by telling herself that someone else might be in danger). All it takes is a single doctor who violates my trust, just like the "friends" who I told I was gay did, and everything would be made public and I'd be forced to live in a world where people would know how fucked up I am. And yes, I realize this indicates that I have severe trust issues, but they're based on a large number of experiences with people who have shown a profound disrepect for their word and the privacy of others.


People say suicide is selfish. I think it's selfish to ask people to continue living painful and miserable lives, just so you possibly won't feel sad for a week or two. Suicide may be a permanent solution to a temporary problem, but it's also a permanent solution to a ~23 year-old problem that grows more intense and overwhelming every day.


Some people are just dealt bad hands in this life. I know many people have it worse than I do, and maybe I'm just not a strong person, but I really did try to deal with this. I've tried to deal with this every day for the last 23 years and I just can't fucking take it anymore.


I often wonder what life must be like for other people. People who can feel the love from others and give it back unadulterated, people who can experience sex as an intimate and joyous experience, people who can experience the colors and happenings of this world without constant misery. I wonder who I'd be if things had been different or if I were a stronger person. It sounds pretty great.


I'm prepared for death. I'm prepared for the pain and I am ready to no longer exist. Thanks to the strictness of New Jersey gun laws this will probably be much more painful than it needs to be, but what can you do. My only fear at this point is messing something up and surviving.

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I'd also like to address my family, if you can call them that. I despise everything they stand for and I truly hate them, in a non-emotional, dispassionate and what I believe is a healthy way. The world will be a better place when they're dead--one with less hatred and intolerance.


If you're unfamiliar with the situation, my parents are fundamentalist Christians who kicked me out of their house and cut me off financially when I was 19 because I refused to attend seven hours of church a week.


They live in a black and white reality they've constructed for themselves. They partition the world into good and evil and survive by hating everything they fear or misunderstand and calling it love. They don't understand that good and decent people exist all around us, "saved" or not, and that evil and cruel people occupy a large percentage of their church. They take advantage of people looking for hope by teaching them to practice the same hatred they practice.


A random example:


"I am personally convinced that if a Muslim truly believes and obeys the Koran, he will be a terrorist." - George Zeller, August 24, 2010.


If you choose to follow a religion where, for example, devout Catholics who are trying to be good people are all going to Hell but child molestors go to Heaven (as long as they were "saved" at some point), that's your choice, but it's fucked up. Maybe a God who operates by those rules does exist. If so, fuck Him.


Their church was always more important than the members of their family and they happily sacrificed whatever necessary in order to satisfy their contrived beliefs about who they should be.


I grew up in a house where love was proxied through a God I could never believe in. A house where the love of music with any sort of a beat was literally beaten out of me. A house full of hatred and intolerance, run by two people who were experts at appearing kind and warm when others were around. Parents who tell an eight year old that his grandmother is going to Hell because she's Catholic. Parents who claim not to be racist but then talk about the horrors of miscegenation. I could list hundreds of other examples, but it's tiring.


Since being kicked out, I've interacted with them in relatively normal ways. I talk to them on the phone like nothing happened. I'm not sure why. Maybe because I like pretending I have a family. Maybe I like having people I can talk to about what's been going on in my life. Whatever the reason, it's not real and it feels like a sham. I should have never allowed this reconnection to happen.


I wrote the above a while ago, and I do feel like that much of the time. At other times, though, I feel less hateful. I know my parents honestly believe the crap they believe in. I know that my mom, at least, loved me very much and tried her best. One reason I put this off for so long is because I know how much pain it will cause her. She has been sad since she found out I wasn't "saved", since she believes I'm going to Hell, which is not a sadness for which I am responsible.


That was never going to change, and presumably she believes the state of my physical body is much less important than the state of my soul. Still, I cannot intellectually justify this decision, knowing how much it will hurt her. Maybe my ability to take my own life, knowing how much pain it will cause, shows that I am a monster who doesn't deserve to live. All I know is that I can't deal with this pain any longer and I'm am truly sorry I couldn't wait until my family and everyone I knew died so this could be done without hurting anyone. For years I've wished that I'd be hit by a bus or die while saving a baby from drowning so my death might be more acceptable, but I was never so lucky.

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To those of you who have shown me love, thank you for putting up with all my shittiness and moodiness and arbitrariness. I was never the person I wanted to be. Maybe without the darkness I would have been a better person, maybe not. I did try to be a good person, but I realize I never got very far.


I'm sorry for the pain this causes. I really do wish I had another option. I hope this letter explains why I needed to do this. If you can't understand this decision, I hope you can at least forgive me.


Bill Zeller

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Please save this letter and repost it if gets deleted. I don't want people to wonder why I did this. I disseminated it more widely than I might have otherwise because I'm worried that my family might try to restrict access to it. I don't mind if this letter is made public. In fact, I'd prefer it be made public to people being unable to read it and drawing their own conclusions.


Feel free to republish this letter, but only if it is reproduced in its entirety.