A Long Island judge has dismissed a $6 million defamation action filed by a teenager against four former classmates who set up a Facebook page on which they joked that the teen used heroin and contracted AIDS by having sex with animals in Africa.
The judge ruled that no reasonable person could believe that the allegedly defamatory statements were facts.
"A reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil."
"Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other."
The judge also dismissed a negligent-supervision claim against the teenagers' parents, saying that a computer does not constitute, as required by New York case law, a "dangerous instrument." "To declare a computer a dangerous instrument in the hands of teenagers in an age of ubiquitous computer ownership would create an exception that would engulf the rule against parental liability," the judge concluded.
The plaintiff in Finkel v. Dauber sought $3 million for the damage to her reputation and character and another $3 million in punitive damages.
In June 2009, a Manhattan judge granted Facebook's motion for summary judgment on the basis of the Communications Decency Act of 1996 which provides immunity to service providers for "information originating with a third-party user."
In dismissing the case, the judge found that "while the posts display an utter lack of taste and propriety, they do not constitute statements of fact. The entire context and tone of the posts constitute evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact."
This case illustrates the continuing difficulty in applying even long-established legal principles to cyberspace where hyperbole and conjecture are contagious. According to this court, the more sensational the statement, the more protection the poster will enjoy. In a world where almost anything is possible, and most of it is posted online, individuals seemingly enjoy less and less protection from even the most outrageous and sensationalistic statements.
Wednesday, July 28, 2010
Constitution Cannot Keep Special Ed Students in School
In a recent little noticed unpublished First Circuit decision, former USSC Justice Souter held that "whatever the scope of a school’s responsibility towards its students . . . there is no apparent constitutional obligation to impose physical restraint upon teenagers not at immediate risk of harm to themselves or others."
This case was brought by mothers of teenagers who were not physically restrained by school officials from leaving their schools during instructional hours. The mothers brought action under state law as well as 42 U.S.C. § 1983 and § 1988 seeking monetary and injunctive relief for violating Fourteenth Amendment due process, the mothers’ right to preserve family integrity and the children’s right to enjoy freedom from abuse and neglect.
The school system explained their policy of permissiveness by referring to a state education regulation limiting use of lawful physical restraint to instances in which children’s unfettered behavior would raise a risk of “assault or imminent, serious, physical harm” to themselves or others; absent such danger, the prevention of truancy would not be worth the burden of defending the liability claims that would doubtless eventuate.
The magistrate judge hearing the case below recognized that the schools’ refusal to confine children to school premises during school hours effectively converted the state’s compulsory attendance law into the children’s option to wander off into trouble that the parents could not effectively prevent. He suggested that the mothers consider the possibility of relief from the general regulation through Individual Educational Plans for their children as special education students.
The mothers argued that inadequate supervision in schools infringes their rights to maintain the integrity of their families under Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), cases that held it to be beyond the power of states to limit a parent’s choice to provide foreign language instruction in elementary schools or to resort to private education. The Court found, however, that these cases recognized a parent’s liberty to be free from state interference with certain education choices, not a right to require state or local government to run public schools in a way a parent might think they ought to be administered. Any actionable interference with family integrity must be “directly aimed at the parent-child relationship.” Manarite v. Springfield, 957 F.2d 953, 960 (1st Cir. 1992).
Judge Souter further found that the Supreme Court’s discussion in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200 (1989), is on point: “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." According to Souter:
This decision did not consider any rights parents might have under the Individuals with Disabilities Education Act [IDEA] or other state or federal regulation. Clearly, the court might have found that a policy and practice of allowing special education students to leave with impunity might effectively deny them a free appropriate public education [FAPE]. Beyond this, however, there is no Constitutional duty for schools to keep children in the classroom, nor is there any apparent duty to insure their safety or well-being (or even notice to the parents or police) once they leave school grounds.
The case is Saez v. City of Springfield.
This case was brought by mothers of teenagers who were not physically restrained by school officials from leaving their schools during instructional hours. The mothers brought action under state law as well as 42 U.S.C. § 1983 and § 1988 seeking monetary and injunctive relief for violating Fourteenth Amendment due process, the mothers’ right to preserve family integrity and the children’s right to enjoy freedom from abuse and neglect.
The school system explained their policy of permissiveness by referring to a state education regulation limiting use of lawful physical restraint to instances in which children’s unfettered behavior would raise a risk of “assault or imminent, serious, physical harm” to themselves or others; absent such danger, the prevention of truancy would not be worth the burden of defending the liability claims that would doubtless eventuate.
The magistrate judge hearing the case below recognized that the schools’ refusal to confine children to school premises during school hours effectively converted the state’s compulsory attendance law into the children’s option to wander off into trouble that the parents could not effectively prevent. He suggested that the mothers consider the possibility of relief from the general regulation through Individual Educational Plans for their children as special education students.
The mothers argued that inadequate supervision in schools infringes their rights to maintain the integrity of their families under Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), cases that held it to be beyond the power of states to limit a parent’s choice to provide foreign language instruction in elementary schools or to resort to private education. The Court found, however, that these cases recognized a parent’s liberty to be free from state interference with certain education choices, not a right to require state or local government to run public schools in a way a parent might think they ought to be administered. Any actionable interference with family integrity must be “directly aimed at the parent-child relationship.” Manarite v. Springfield, 957 F.2d 953, 960 (1st Cir. 1992).
Judge Souter further found that the Supreme Court’s discussion in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200 (1989), is on point: “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." According to Souter:
The situation of the children in this case is not even close to facts that would thus raise a state obligation. There is neither restraint of the child (that indeed is the very complaint), nor any practice or circumstance rendering the child unable to care for himself, nor failure to provide basic human needs of food, clothing, shelter, medical care or reasonable safety. As the Supreme Court later observed in Vernonia School District 47J v. Acton, 515 U.S. 646, 655 (1995), “we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional ‘duty to protect’” (citing DeShaney, 489 U.S. at 200).
This decision did not consider any rights parents might have under the Individuals with Disabilities Education Act [IDEA] or other state or federal regulation. Clearly, the court might have found that a policy and practice of allowing special education students to leave with impunity might effectively deny them a free appropriate public education [FAPE]. Beyond this, however, there is no Constitutional duty for schools to keep children in the classroom, nor is there any apparent duty to insure their safety or well-being (or even notice to the parents or police) once they leave school grounds.
The case is Saez v. City of Springfield.
Thursday, July 22, 2010
Kansas Passes State "Masha's Law"
Almost 5 years ago, the Marsh Law Firm was instrumental in enhancing the federal civil legal rights of children who are victims of child pornography. Borrowing from intellectual property law, our firm helped draft, introduce and pass—in just seven months—a comprehensive update to a long-forgotten federal law which gives victims the right to sue anyone who produces, distributes or possess their child sex abuse images. Masha’s Law provides statutory damages of $150,000 for each violation of federal child pornography provisions and was incorporated into the Adam Walsh Child Protection and Safety Act signed by President Bush on July 27, 2006.
In 2008, Florida passed a state version of Masha's Law. Now Kansas has joined the effort by passing a state law which is modeled on the federal law we helped write.
The bill provides a recovery for actual damages of at least $150,000. In order to bring a civil action against a producer, promoter, or intentional possessor of child pornography the plaintiff must prove that while he or she was under the age of 18, he or she was the victim of an offense that resulted in a conviction, that offense was used in the production of child pornography, and the victim suffered personal or psychological injury as a result.
Civil action may be pursued through private counsel or by the Attorney General at the victim’s request. The bill also creates a three year statute of limitations.
In 2008, Florida passed a state version of Masha's Law. Now Kansas has joined the effort by passing a state law which is modeled on the federal law we helped write.
The bill provides a recovery for actual damages of at least $150,000. In order to bring a civil action against a producer, promoter, or intentional possessor of child pornography the plaintiff must prove that while he or she was under the age of 18, he or she was the victim of an offense that resulted in a conviction, that offense was used in the production of child pornography, and the victim suffered personal or psychological injury as a result.
Civil action may be pursued through private counsel or by the Attorney General at the victim’s request. The bill also creates a three year statute of limitations.
Monday, July 19, 2010
Improving the Legal Representation of Children
In October 2009, the U.S. Children’s Bureau named University of Michigan Law School the National Quality Improvement Center on the Representation of Children in the Child Welfare System (QIC-ChildRep).
The QIC-ChildRep, is a five-year, $5 million dollar project to gather, develop and communicate knowledge on child representation, promote consensus on the role of the child’s legal representative, and provide one of the first empirically-based analyses of how legal representation for the child might best be delivered.
The Center, which is run by the legendary child advocate Don Duquette, has a great website and promises to answer the following questions:
The QIC-ChildRep, is a five-year, $5 million dollar project to gather, develop and communicate knowledge on child representation, promote consensus on the role of the child’s legal representative, and provide one of the first empirically-based analyses of how legal representation for the child might best be delivered.
The Center, which is run by the legendary child advocate Don Duquette, has a great website and promises to answer the following questions:
- What should be the duties and responsibilities of the child’s representative in civil child protection proceedings?
- Who should represent the child in such proceedings? A lawyer? A CASA? A social worker? A team?
- What does the child representative do that makes a difference in a child’s life?
- How can effective representation for the child be accomplished? That is, what organizational structure best delivers legal services for a child?
- By what criteria is effective child representation to be measured?
- How should the child's representative accommodate the child's wishes in setting the goals of the advocacy?
Wednesday, July 7, 2010
Current Restitution Law is Failing Child Pornography Victims
Legislators and courts have long recognized what common sense makes clear - children depicted in child abuse images[1] are harmed not only by the sexual abuse captured by the images, but also by the subsequent distribution, possession, and viewing of the images of their abuse.[2] 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 in their recovery.[3] Thus, it seems a straightforward proposition that children depicted in child abuse images should be awarded restitution from their offenders, including those offenders who possess and view their abuse. In fact, this simple supposition seems to underpin the statute governing restitution in cases involving sexual exploitation.[4]
Despite the logic, justness, and legality of affording restitution to the victims in child abuse images, federal courts differ greatly in their approach to the restitution rights of these victims[5] in the context of possession cases. As discussed below, over the last year alone, courts have awarded these victims full restitution, partial restitution, di minimus restitution, or even no restitution at all. These differences in outcome can be attributed, at least in part, to varied legal interpretations of the governing restitution statute, 18 U.S.C. § 2259. This article provides a brief overview of the current state of the law, and suggests that a court-based or legislative solution is urgently needed to avoid further victimization of these victims.
Law Governing Restitution in Possession of Child Abuse Image Cases
Section 2259 of Title 18 of the United States Code governs restitution for offenses involving the sexual exploitation and other abuse of children. Section 2259 provides that a district court “shall order restitution for any offense under [the Sexual Exploitation and Other Abuse of Children Chapter of Title 18].”[6] Possession of material depicting the sexual exploitation of children is an offense under the chapter to which Section 2259 applies.[7] The use of the word “shall” makes awarding restitution to persons who meet the statute’s definition of “victim” mandatory under Section 2259.[8]
Children Depicted in Child Abuse Images are “Victims” for the Purposes of § 2259
Section 2259 employs a broad definition of victim, providing that a “victim” is an “individual harmed as a result of a commission of a crime under [the Sexual Exploitation and Other Abuse of Children Chapter of Title 18].”[9] This broad definition of “victim” stands in contrast to the narrower definition of “victim” contained in other federal restitution statutes. For instance, both the Victim Witness Protection Act[10] and the Mandatory Victim Restitution Act[11] define a “victim” to be a “person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered . . . .”[12] Since neither the word “directly” nor “proximately” appear in Section 2259, according to the statute’s plain language, any “harm” resulting from a qualifying offense is sufficient to create victim status.
Courts have clearly determined that an offender’s possession of child abuse images harms the children depicted therein. The United States Supreme Court first acknowledged such harm in 1982 in New York v. Ferber.[13] 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.”[14] The Court also found that the distribution of child abuse images 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.”[15] In reaching this conclusion, the Court noted:
In 1998, the Fifth Circuit Court of Appeals expanded upon the Ferber Court’s analysis to find that “the children depicted in child pornography may be considered to be the victims of the crime of receiving child pornography.”[17] The court then articulated three specific harms caused by possession of child abuse images:
More recently, as discussed below, many federal courts have expressly found that, for the purposes of Section 2259, the possession of child abuse images harms the children depicted therein.
Congress has also recognized the harm caused by possession of child abuse images in a variety of contexts. In the Child Pornography Prevention Act of 1996, Congress found that “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.”[19] More recently, Congress addressed the harm of child pornography in the Adam Walsh Child Protection and Safety Act of 2006.[20] In the legislative history of the Adam Walsh Act, Congress found that “[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 and has a substantial and detrimental effect on society as a whole.”[21] Congress noted that “every instance of
viewing child pornography represents a renewed violation of the privacy of the victims and repetition of their abuse.”[22]
As discussed above, Section 2259 requires only that an individual be “harmed as a result of a commission of a [qualifying crime]” to qualify as a “victim,” and further provides that all qualifying victims are entitled to mandatory restitution where the crime of conviction is possession of material depicting the sexual exploitation of children. The findings by courts and Congress make clear that children depicted in child abuse images are harmed not only by the production of such images, but by the distribution and possession of such images. Thus, these victims are entitled to mandatory restitution from their offender(s), including those individuals who possess and view images of their abuse.
The Restitution Analysis in Recent Possession Cases
Since July 2009, over a dozen federal district courts have grappled with the specific question of restitution owed to victims depicted in child abuse images when the crime at issue is possession.[23] During this time, every court that reached the issue found that the victim depicted was harmed by the offender’s possession of the images depicting his or her abuse.[24]
Despite their consistency in finding the requisite harm to the victims, these courts have split on how much restitution to award to the victims depicted in the images. Only one court has awarded the full restitution requested,[25] while others have awarded partial restitution,[26] di minimus restitution,[27] or no restitution at all.[28] The difference in outcome seems to mainly
turn on the courts’ causation analyses - meaning what offer of proof the court deems necessary to establish a causal connection between the defendant’s specific offense and the victim’s harm.
The one court that awarded full restitution relied on “credible and persuasive” expert testimony that the child depicted in the images was harmed by the possession and distribution of her images.[29] With this finding of harm, the court held that the child was a “victim” under Section 2259, and was, pursuant to the statute, entitled to recover in restitution the full amount of her losses.
One court that awarded partial restitution relied on the victim’s impact statement as well expert testimony regarding harm, and held that each person who possesses and uses the images of the victim exacerbates the harm that the original production and distribution caused, and that, despite the fact that hundreds or thousands
may possess the same images, the defendant’s conduct “remains a substantial cause of that harm.”[33] In analyzing the victim’s claim of loss, the
court determined that the evidence presented to demonstrate loss improperly conflated the harm that the victim suffered from the possession of the images with the harm that she suffered as a result of the abuse depicted in the
images.[34] The court therefore analyzed each of the victim’s requests in order to decipher which loss could be shown to be causally related to a possession offense. Using this analysis, the court refused to order restitution for loss of income or benefits, holding that the government failed to meet its burden to show a causal connection between such loss and defendant’s possession.
The courts that have awarded di minimus restitution have determined that although restitution is mandatory in all possession cases under Section 2259, the definition of “victim” in the statute requires some showing of a casual connection between the defendant’s possession and specific losses before restitution can be awarded. For these courts, “Section 2259 leaves the court in a legal quandary: The court must award restitution and the government must show the harm caused by [defendant], but it is difficult to determine the amount of harm caused by [defendant].”[38] To resolve this “difficult determination,” these courts looked to 18 U.S.C. § 2255, which provides that the minimum amount recoverable in an action for personal injuries caused by the sexual exploitation of children is $150,000.[39] Based on this figure, and, through a discount calculation (the basis of which is less than clear), each came to a di minimus restitution award.name="_ftnref40" title=""><[40]
The courts that have declined to award restitution have rejected the government’s argument that Section 2259 does not require it to establish by a preponderance of the evidence that a specific loss was proximately caused by an individual defendant’s specific offense.[41] Based upon this reading of the law of causation, these courts have determined that, despite substantial victim impact statements and expert reports detailing “tragic harms” to the victim, the government and victim failed to prove by a preponderance of the evidence that any specific portion of the victim’s harm was proximately caused by the
defendant’s specific possession or viewing of the images at issue, as opposed to the initial abuse or other acts of receipt and distribution.[42] Unlike the di minimus courts, these courts have not turned to the civil statute for guidance to calculate a minimum amount of harm, and instead have refused to award any restitution.
So which court(s) are correctly analyzing the restitution issue? A key canon of statutory interpretation dictates that when interpreting a statute one must look to the language of the statute itself.title="">[43] Therefore, to determine whether causation is sufficiently established by a showing that the individual is a victim who is depicted in the images such that he or she meets the definition of “victim” under Section 2259, and what showing of causation is required for a victim to recover restitution from any particular defendant requires an analysis of the language of Section 2259.
Causation Under Section 2259
Section 2259 mandates restitution for “the full amount of the victim’s losses as determined by the
court.”[44] Under the statute, the term “full amount of
the victim’s losses” includes any costs incurred by the victim for:
As the plain language makes clear, five of the six categories of losses recognized in Section 2259 do not contain a proximate cause requirement. Only the sixth “catchall” category of losses contains such a requirement.
Another common canon of statutory construction provides that, where Congress includes particular language in one section of a statute but omits it in another section of the same law, the omission is presumed intentional.[46] The presumptively intentional omission of “proximate result” in the first five of the subsections suggests that Congress did not want burden victims of child abuse images with a requirement that they show a proximate cause for these losses.
As discussed above, Section 2259 employs a broad definition of victim, providing that a “victim” is
an “individual harmed as a result of a commission of a crime under [the Sexual Exploitation and Other Abuse of Children Chapter of Title 18].”[47] As also discussed above, courts and Congress have made clear findings that children depicted in child abuse images are harmed when someone possesses the images of their abuse. Thus, relying on the plain language of the statute, and court and Congressional findings, sufficient causal connection for categories of loss (A)-(E) is established upon a finding that the individual asserting victim status is, in fact, the person depicted in the image that is possessed.
Courts that have ordered di minimus restitution or no restitution require - contrary to the plain language of Section 2259, congressional intent, and good public policy - a causal connection of proximate cause for all six categories of claims. While this is not an ideal approach, victims in child abuse image possession cases are likely to meet such a requirement. Under general tort law,[48] the outcome of an act need only be foreseeable to establish that the act is the proximate cause of that outcome. "[W]hat 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."[49] Thus, the applicable test “is whether the defendant reasonably should have anticipated any injury” resulting from his conduct.[50] As noted above, courts and Congress have determined that every possessor of child abuse images harms the victim depicted in the images, and that possession of the images is, in fact, causally connected to the original creation and the distribution of these images. Thus, it is entirely foreseeable that each defendant who possesses the images harms the victim.[51]
Conclusion
It is well-recognized that children depicted in child abuse images suffer life-long harm from the sexual abuse captured in the images, as well as by the distribution, possession, and viewing of the images their abuse. It is also well-established that victims of these crimes should receive restitution for their harm. As discussed above, over the last year alone, courts have awarded a wide range of restitution these victims - full, partial, di minimus, or even no restitution at all. These varied outcomes turn on the evidence that courts require regarding the relationship of the harm endured by the victim and the actions of a particular defendant.
A proper reading of Section 2259, together with prior court and Congressional findings on the harms that stem from possession, mandates that this causal relationship is sufficiently established as soon as a victim meets the statute’s definition of “victim.” Despite this, some courts are requiring that before a victim recover restitution they must endure a new harm - learning the details of each possessing offender’s conduct so that they can meet a burden of demonstrated harm from specific conduct of each defendant’s possession. Many of these victims have started on their path of recovery and have submitted to courts substantial evidence of harm and the costs they have, and will incur, from this harm. To require these victims to learn details of each possession will cause them new and increased harm, and flies in the face of public policy and congressional intent. The better approach is to recognize that the harm suffered by these victims is complex and life-long.
Given the intertwining and interrelatedness of production, distribution, and possession, artificially segregating the harms from each of aspect the victim’s abuse is improper. Instead courts should recognize that that the harm from production, distribution, and possession “are closely related” and “cannot be separate[d] to allocate costs between them,”[52] and require all defendants to be jointly and severally liable for the full amount of the victim’s losses. If courts will not or cannot reach this outcome, the law must be clarified to ensure that these victims are afforded restitution for the full amount of their losses without requiring them to endure further victimization at the hands of the criminal justice system.
This article originally appeared in NCVLI News, 12th Edition (2010).
It was written by Meg Garvin, MA, JD and is reproduced here with permission.
Ms. Garvin is the Director of the National Crime Victim Law Institute (NCVLI) and a Clinical Professor of Law at Lewis & Clark Law School in Portland, Oregon.
You can contact Meg at garvin@lclark.edu and learn more about NCVLI at www.ncvli.org
[1] “Child pornography” is a term often used to describe an image that depicts a child being sexually abused. While the term is commonly accepted, its use dilutes the reality of what the image depicts, and the immense harm it causes the child depicted. Consequently, throughout this article the term “child abuse image” will be used instead of “child pornography” whenever possible.
[2] See, e.g., 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.”); New York v. Ferber, 458 U.S. 747, 759 (1982) (finding that the distribution of child abuse images is
“intrinsically related to the sexual abuse of children” because, inter alia,
“the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation”); United States v. Norris, 159 F.3d 926, 929-30 (5th Cir. 1998) (noting that the receipt of child abuse images harms the children depicted in the images because the crime (1) “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”).
[3] See S. Rep. No. 104-179, at 12 (1996), as reprinted in 1996 U.S.C.C.A.N. 924, 925 (noting that the 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”); Hughey v. United States, 495 U.S. 411, 416 (1990) (stating that “ the ordinary meaning of ‘restitution’ is restoring someone to a position he occupied before a particular event”); United States v. Boccagna, 450 F.3d 107, 115 (2d Cir. 2006) (“[I]t can fairly be said that the primary and overreaching 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.”) (quotation marks and citations omitted).
[4] See 18 U.S.C. § 2259(a) (mandating full restitution for children who are the victims of sexual exploitation and other abuse).
[5] This article addresses only the issue of awarding restitution to those victims in child abuse images who have been identified, not the larger issue of how to help those thousands or tens of thousands of children whose identities are unknown. The National Center for Missing and Exploited Children is the organization that maintains the national identification database for these children, and is diligently working to identify more and more of the victims in the materials containing child abuse images that defendants possess.
[6] 18 U.S.C.§ 2259(a) (emphasis added).
[7] 18 U.S.C. § 2252.
[8] See Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661-62 (2007) (“As used in statutes . . . this word [shall] is generally
imperative or mandatory.”) (citations omitted).
[9] 18 U.S.C. § 2259(c)(emphasis added).
[10] 18 U.S.C. § 3663.
[11] 18 U.S.C. § 3663A.
[12] 18 U.S.C. § 3663(a)(2); 18 U.S.C. § 3663A(2).
[13] 458 U.S. 747 (1982).
[14] Id.at 757.
[15] Id. at 759.
[16] Id. at 759 n.10 (quoting David P. Shoulvin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545 (1981)).
[17] United States v. Norris, 159 F.3d 926, 929 (5th Cir. 1998).
[18] Id. at 929-30 (internal citations and quotations omitted).
[19] Child Pornography Prevention Act of 1996, Pub. L. 104-208 § 121, 110 Stat. 3009, 26 (1996).
[20] Pub. L. No. 109-248.
[21] Id. at § 501.
[22] Id.
[23] See, e.g., United States v. Scheidt, 1:07-CR-00293, 2010 WL 144837 (E.D. Cal. Jan 11, 2010); United States v. Ferenci, No. 1:08-CR-0414, 2009 WL 2579102 (E.D. Cal. Aug. 19, 2009); United States v. Monk, No. 1:08-CR-0365, 2009 WL 2567831 (E.D. Cal. Aug. 18, 2009); United States v. Renga, No. 1:08-CR-0270, 2009 WL 2579103 (E.D. Cal. Aug. 19, 2009); United States v. Zane, No. 1:08-CR-0369, 2009 WL 2567832 (E.D. Cal. Aug. 18, 2009); United States v. Simon, No. CR-08-0907, 2009 WL 2424673 (N.D. Cal. Aug. 7, 2009); United States v. Staples, No. 09-14017, 2009 WL 2827204 (S.D. Fla. Sept. 2, 2009); United States v. Van Brackle, No. 2:08-CR-042, 2009 WL 4928050 (N.D. Ga. Dec. 17, 2009); United States v. Berk, No. 08-CR-212, 2009 WL 3451085 (D. Me. Oct. 26, 2009); United States v. Aumais, No. 08-CR-711 (N.D.N.Y. Jan. 13, 2010); United States v. Brunner, No. 5:08cr16, 2010 WL 148433 (W.D.N.C. Jan. 12, 2010); United States v. Hicks, No. 1:09-CR-150, 2009 WL 4110260 (E.D. Va. Nov. 24, 2009); United States v. Paroline, No. 6:08-CR-61, 2009 WL 4572786 (E.D. Tex. Dec. 7, 2009). The only federal circuit court of appeals to address this precise issue resolved the matter on standard of review grounds rather than engaging the merits of the arguments. See In re Amy, 591 F.2d 792 (5th Cir. 2009).
[24] e.g., Scheidt, 2010 WL 144837, at *4; Ferenci, 2009 WL 2579102, at *4; Monk, 2009 WL 2567831, at *4; Renga, 2009 WL 2579103, at *4; Zane, 2009 WL 2567832, at *4; Staples, 2009 WL 2827204, at *3; Van Brackle, 2009 WL 4928050, at *3; Berk, 2009 WL 3451085, at *7; Aumais, No. 08-CR-711, at 13; Brunner, 2010 WL 148433, at *2; Hicks, 2009 WL 4110260, at *3; Paroline, 2009 WL 4572786, at *4. But see Simon, 2009 WL 2424673, at * 6 (stating in dicta that the government had failed to meets its burden to show a causal connection between defendant's possession of child abuse images and harm to the victim).
[25] See Staples, 2009 WL 2827204, at *3.
[26] See, e.g., Aumais, No. 08-CR-711.
[27] See, e.g., Scheidt, 2010 WL 144837, at *4, Ferenci, 2009 WL 2579102, at *4; Monk, 2009 WL 2567831, at *4; Renga, 2009 WL 2579103, at *4; Zane, 2009 WL 2567832, at *4; Hicks, 2009 WL 4110260, at *3.
[28] See e.g., Van Brackle, 2009 WL 4928050, at *5; Berk, 2009 WL 3451085, at *7; Paroline, 2009 WL 4572786, at *4.
[29] Staples, 2009 WL 2827204, at *3.
[30] Id.
[31] Id. at *4.
[32] Id. at *3.
[33] Aumais, No. 08-CR-711, at 4-13.
[34] Id. at 15.
[35] Id.
[36] Id. at 15-16.
[37] Id. at 16-17.
[38] See, e.g., Scheidt, 2010 WL 144837, at *4; Ferenci, 2009 WL 2579102, at *4; Monk, 2009 WL 2567831, at *4; Renga, 2009 WL 2579103, at *4; Zane, 2009 WL 2567832, at *5.
[39] 18 U.S.C. § 2255(a).
[40] See, e.g., Scheidt, 2010 WL 144837, at *5 ("The court finds that $3,000 should be awarded as restitution in favor of [the victim]. This amount is two percent of the $150,000 amount reflected in Section 2255. Given the high amount of the deemed damages in Section 2255, the court finds an amount less than $3,000 inconsistent with Congress's findings on the harm to children victims of child pornography. At the same time, the court finds $3,000 is a level of restitution that the court is confident is somewhat less than the actual harm this particular defendant caused each victim, resolving any due process concerns."); Ferenci, 2009 WL 2579102, at *5 (same); Monk, 2009 WL 2567831, at *5 (same); Renga, 2009 WL 2579103, at *5 (same) ; Zane, 2009 WL 2567832, at *5 (same); Hicks, 2009 WL 4110260, at *6 ("In the end, the Court finds that the amount of $3,000, the amount identified as the correct restitution figure in several of the previously-decided [cases involving the same victim of the child abuse images], plus attorney's fees, is appropriate. The Court believes that at least fifty defendants will be successfully prosecuted for unlawfully possessing or receiving the [series of abuse images of the victim], given the numbers prosecuted to date. If restitution orders of $3,000 per case result, [the victim] will be compensated in full. Like the Eastern District of California, this Court is confident that the amount of harm [defendant] actually inflicted upon [the victim] exceeds the amount awarded, and thus [defendant] has little to protest in the way of due process or otherwise.").
[41] See, e.g., Van Brackle, 2009 WL 4928050, at *4; Berk, 2009 WL 3451085, at *5.
[42] See, e.g., Van Brackle, 2009 WL 4928050, at *5; Berk, 2009 WL 3451085, at *8.
[43] Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1985).
[44] 18 U.S.C. § 2259(b)(1).
[45] Id. at (b)(3).
[46] Russello v. United States, 464 U.S. 16, 23 (1983).
[47] 18 U.S.C. § 2259(c) (emphasis added).
[48] 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.
[49] 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.").
[50] Elliot v. Turner Const. Co., 381 F.3d 995, 1006 (10th Cir. 2004) (emphasis in original).
[51] Notably, the victims in each of the cases that have issued from district courts since July 2009 discussed above did not rest on these presumptions, but presented considerable expert testimony and evidence of their losses, as well as victim impact statements recounting the harm. For instance, one victim submitted an impact statement that states, in part: "It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it. It's like I'm being abused over and over again."
[52] Aumais, No. 08-CR-711, at 16.
Despite the logic, justness, and legality of affording restitution to the victims in child abuse images, federal courts differ greatly in their approach to the restitution rights of these victims[5] in the context of possession cases. As discussed below, over the last year alone, courts have awarded these victims full restitution, partial restitution, di minimus restitution, or even no restitution at all. These differences in outcome can be attributed, at least in part, to varied legal interpretations of the governing restitution statute, 18 U.S.C. § 2259. This article provides a brief overview of the current state of the law, and suggests that a court-based or legislative solution is urgently needed to avoid further victimization of these victims.
Law Governing Restitution in Possession of Child Abuse Image Cases
Section 2259 of Title 18 of the United States Code governs restitution for offenses involving the sexual exploitation and other abuse of children. Section 2259 provides that a district court “shall order restitution for any offense under [the Sexual Exploitation and Other Abuse of Children Chapter of Title 18].”[6] Possession of material depicting the sexual exploitation of children is an offense under the chapter to which Section 2259 applies.[7] The use of the word “shall” makes awarding restitution to persons who meet the statute’s definition of “victim” mandatory under Section 2259.[8]
Children Depicted in Child Abuse Images are “Victims” for the Purposes of § 2259
Section 2259 employs a broad definition of victim, providing that a “victim” is an “individual harmed as a result of a commission of a crime under [the Sexual Exploitation and Other Abuse of Children Chapter of Title 18].”[9] This broad definition of “victim” stands in contrast to the narrower definition of “victim” contained in other federal restitution statutes. For instance, both the Victim Witness Protection Act[10] and the Mandatory Victim Restitution Act[11] define a “victim” to be a “person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered . . . .”[12] Since neither the word “directly” nor “proximately” appear in Section 2259, according to the statute’s plain language, any “harm” resulting from a qualifying offense is sufficient to create victim status.
Courts have clearly determined that an offender’s possession of child abuse images harms the children depicted therein. The United States Supreme Court first acknowledged such harm in 1982 in New York v. Ferber.[13] 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.”[14] The Court also found that the distribution of child abuse images 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.”[15] In reaching this conclusion, the Court noted:
Because 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.[16]
In 1998, the Fifth Circuit Court of Appeals expanded upon the Ferber Court’s analysis to find that “the children depicted in child pornography may be considered to be the victims of the crime of receiving child pornography.”[17] The court then articulated three specific harms caused by possession of child abuse images:
First, the simple fact that the images have been disseminated perpetuates the abuse initiated by the producer of the materials. . . . The consumer who “merely” or “passively” receives or possesses child pornography directly contributes to the child’s continued victimization.
Second, the mere existence of the child pornography represents an invasion of the privacy of the child depicted. . . . The recipient of the child pornography obviously perpetuates the existence of the images received, and therefore the recipient may be considered to be invading the privacy of the children depicted, directly victimizing these children.
Third, the consumer of child pornography instigates the original production of child pornography by providing an economic motive for creating and distributing the materials. . . . The consumers of child pornography therefore victimize the children depicted in child pornography by enabling and supporting the continued production of child pornography, which entails continuous direct abuse and victimization of child subjects.[18]
More recently, as discussed below, many federal courts have expressly found that, for the purposes of Section 2259, the possession of child abuse images harms the children depicted therein.
Congress has also recognized the harm caused by possession of child abuse images in a variety of contexts. In the Child Pornography Prevention Act of 1996, Congress found that “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.”[19] More recently, Congress addressed the harm of child pornography in the Adam Walsh Child Protection and Safety Act of 2006.[20] In the legislative history of the Adam Walsh Act, Congress found that “[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 and has a substantial and detrimental effect on society as a whole.”[21] Congress noted that “every instance of
viewing child pornography represents a renewed violation of the privacy of the victims and repetition of their abuse.”[22]
As discussed above, Section 2259 requires only that an individual be “harmed as a result of a commission of a [qualifying crime]” to qualify as a “victim,” and further provides that all qualifying victims are entitled to mandatory restitution where the crime of conviction is possession of material depicting the sexual exploitation of children. The findings by courts and Congress make clear that children depicted in child abuse images are harmed not only by the production of such images, but by the distribution and possession of such images. Thus, these victims are entitled to mandatory restitution from their offender(s), including those individuals who possess and view images of their abuse.
The Restitution Analysis in Recent Possession Cases
Since July 2009, over a dozen federal district courts have grappled with the specific question of restitution owed to victims depicted in child abuse images when the crime at issue is possession.[23] During this time, every court that reached the issue found that the victim depicted was harmed by the offender’s possession of the images depicting his or her abuse.[24]
Despite their consistency in finding the requisite harm to the victims, these courts have split on how much restitution to award to the victims depicted in the images. Only one court has awarded the full restitution requested,[25] while others have awarded partial restitution,[26] di minimus restitution,[27] or no restitution at all.[28] The difference in outcome seems to mainly
turn on the courts’ causation analyses - meaning what offer of proof the court deems necessary to establish a causal connection between the defendant’s specific offense and the victim’s harm.
The one court that awarded full restitution relied on “credible and persuasive” expert testimony that the child depicted in the images was harmed by the possession and distribution of her images.[29] With this finding of harm, the court held that the child was a “victim” under Section 2259, and was, pursuant to the statute, entitled to recover in restitution the full amount of her losses.
One court that awarded partial restitution relied on the victim’s impact statement as well expert testimony regarding harm, and held that each person who possesses and uses the images of the victim exacerbates the harm that the original production and distribution caused, and that, despite the fact that hundreds or thousands
may possess the same images, the defendant’s conduct “remains a substantial cause of that harm.”[33] In analyzing the victim’s claim of loss, the
court determined that the evidence presented to demonstrate loss improperly conflated the harm that the victim suffered from the possession of the images with the harm that she suffered as a result of the abuse depicted in the
images.[34] The court therefore analyzed each of the victim’s requests in order to decipher which loss could be shown to be causally related to a possession offense. Using this analysis, the court refused to order restitution for loss of income or benefits, holding that the government failed to meet its burden to show a causal connection between such loss and defendant’s possession.
The courts that have awarded di minimus restitution have determined that although restitution is mandatory in all possession cases under Section 2259, the definition of “victim” in the statute requires some showing of a casual connection between the defendant’s possession and specific losses before restitution can be awarded. For these courts, “Section 2259 leaves the court in a legal quandary: The court must award restitution and the government must show the harm caused by [defendant], but it is difficult to determine the amount of harm caused by [defendant].”[38] To resolve this “difficult determination,” these courts looked to 18 U.S.C. § 2255, which provides that the minimum amount recoverable in an action for personal injuries caused by the sexual exploitation of children is $150,000.[39] Based on this figure, and, through a discount calculation (the basis of which is less than clear), each came to a di minimus restitution award.name="_ftnref40" title=""><[40]
The courts that have declined to award restitution have rejected the government’s argument that Section 2259 does not require it to establish by a preponderance of the evidence that a specific loss was proximately caused by an individual defendant’s specific offense.[41] Based upon this reading of the law of causation, these courts have determined that, despite substantial victim impact statements and expert reports detailing “tragic harms” to the victim, the government and victim failed to prove by a preponderance of the evidence that any specific portion of the victim’s harm was proximately caused by the
defendant’s specific possession or viewing of the images at issue, as opposed to the initial abuse or other acts of receipt and distribution.[42] Unlike the di minimus courts, these courts have not turned to the civil statute for guidance to calculate a minimum amount of harm, and instead have refused to award any restitution.
So which court(s) are correctly analyzing the restitution issue? A key canon of statutory interpretation dictates that when interpreting a statute one must look to the language of the statute itself.title="">[43] Therefore, to determine whether causation is sufficiently established by a showing that the individual is a victim who is depicted in the images such that he or she meets the definition of “victim” under Section 2259, and what showing of causation is required for a victim to recover restitution from any particular defendant requires an analysis of the language of Section 2259.
Causation Under Section 2259
Section 2259 mandates restitution for “the full amount of the victim’s losses as determined by the
court.”[44] Under the statute, the term “full amount of
the victim’s losses” includes any costs incurred by the victim for:
(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.title="">[45]
As the plain language makes clear, five of the six categories of losses recognized in Section 2259 do not contain a proximate cause requirement. Only the sixth “catchall” category of losses contains such a requirement.
Another common canon of statutory construction provides that, where Congress includes particular language in one section of a statute but omits it in another section of the same law, the omission is presumed intentional.[46] The presumptively intentional omission of “proximate result” in the first five of the subsections suggests that Congress did not want burden victims of child abuse images with a requirement that they show a proximate cause for these losses.
As discussed above, Section 2259 employs a broad definition of victim, providing that a “victim” is
an “individual harmed as a result of a commission of a crime under [the Sexual Exploitation and Other Abuse of Children Chapter of Title 18].”[47] As also discussed above, courts and Congress have made clear findings that children depicted in child abuse images are harmed when someone possesses the images of their abuse. Thus, relying on the plain language of the statute, and court and Congressional findings, sufficient causal connection for categories of loss (A)-(E) is established upon a finding that the individual asserting victim status is, in fact, the person depicted in the image that is possessed.
Courts that have ordered di minimus restitution or no restitution require - contrary to the plain language of Section 2259, congressional intent, and good public policy - a causal connection of proximate cause for all six categories of claims. While this is not an ideal approach, victims in child abuse image possession cases are likely to meet such a requirement. Under general tort law,[48] the outcome of an act need only be foreseeable to establish that the act is the proximate cause of that outcome. "[W]hat 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."[49] Thus, the applicable test “is whether the defendant reasonably should have anticipated any injury” resulting from his conduct.[50] As noted above, courts and Congress have determined that every possessor of child abuse images harms the victim depicted in the images, and that possession of the images is, in fact, causally connected to the original creation and the distribution of these images. Thus, it is entirely foreseeable that each defendant who possesses the images harms the victim.[51]
Conclusion
It is well-recognized that children depicted in child abuse images suffer life-long harm from the sexual abuse captured in the images, as well as by the distribution, possession, and viewing of the images their abuse. It is also well-established that victims of these crimes should receive restitution for their harm. As discussed above, over the last year alone, courts have awarded a wide range of restitution these victims - full, partial, di minimus, or even no restitution at all. These varied outcomes turn on the evidence that courts require regarding the relationship of the harm endured by the victim and the actions of a particular defendant.
A proper reading of Section 2259, together with prior court and Congressional findings on the harms that stem from possession, mandates that this causal relationship is sufficiently established as soon as a victim meets the statute’s definition of “victim.” Despite this, some courts are requiring that before a victim recover restitution they must endure a new harm - learning the details of each possessing offender’s conduct so that they can meet a burden of demonstrated harm from specific conduct of each defendant’s possession. Many of these victims have started on their path of recovery and have submitted to courts substantial evidence of harm and the costs they have, and will incur, from this harm. To require these victims to learn details of each possession will cause them new and increased harm, and flies in the face of public policy and congressional intent. The better approach is to recognize that the harm suffered by these victims is complex and life-long.
Given the intertwining and interrelatedness of production, distribution, and possession, artificially segregating the harms from each of aspect the victim’s abuse is improper. Instead courts should recognize that that the harm from production, distribution, and possession “are closely related” and “cannot be separate[d] to allocate costs between them,”[52] and require all defendants to be jointly and severally liable for the full amount of the victim’s losses. If courts will not or cannot reach this outcome, the law must be clarified to ensure that these victims are afforded restitution for the full amount of their losses without requiring them to endure further victimization at the hands of the criminal justice system.
This article originally appeared in NCVLI News, 12th Edition (2010).
It was written by Meg Garvin, MA, JD and is reproduced here with permission.
Ms. Garvin is the Director of the National Crime Victim Law Institute (NCVLI) and a Clinical Professor of Law at Lewis & Clark Law School in Portland, Oregon.
You can contact Meg at garvin@lclark.edu and learn more about NCVLI at www.ncvli.org
[1] “Child pornography” is a term often used to describe an image that depicts a child being sexually abused. While the term is commonly accepted, its use dilutes the reality of what the image depicts, and the immense harm it causes the child depicted. Consequently, throughout this article the term “child abuse image” will be used instead of “child pornography” whenever possible.
[2] See, e.g., 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.”); New York v. Ferber, 458 U.S. 747, 759 (1982) (finding that the distribution of child abuse images is
“intrinsically related to the sexual abuse of children” because, inter alia,
“the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation”); United States v. Norris, 159 F.3d 926, 929-30 (5th Cir. 1998) (noting that the receipt of child abuse images harms the children depicted in the images because the crime (1) “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”).
[3] See S. Rep. No. 104-179, at 12 (1996), as reprinted in 1996 U.S.C.C.A.N. 924, 925 (noting that the 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”); Hughey v. United States, 495 U.S. 411, 416 (1990) (stating that “ the ordinary meaning of ‘restitution’ is restoring someone to a position he occupied before a particular event”); United States v. Boccagna, 450 F.3d 107, 115 (2d Cir. 2006) (“[I]t can fairly be said that the primary and overreaching 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.”) (quotation marks and citations omitted).
[4] See 18 U.S.C. § 2259(a) (mandating full restitution for children who are the victims of sexual exploitation and other abuse).
[5] This article addresses only the issue of awarding restitution to those victims in child abuse images who have been identified, not the larger issue of how to help those thousands or tens of thousands of children whose identities are unknown. The National Center for Missing and Exploited Children is the organization that maintains the national identification database for these children, and is diligently working to identify more and more of the victims in the materials containing child abuse images that defendants possess.
[6] 18 U.S.C.§ 2259(a) (emphasis added).
[7] 18 U.S.C. § 2252.
[8] See Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 661-62 (2007) (“As used in statutes . . . this word [shall] is generally
imperative or mandatory.”) (citations omitted).
[9] 18 U.S.C. § 2259(c)(emphasis added).
[10] 18 U.S.C. § 3663.
[11] 18 U.S.C. § 3663A.
[12] 18 U.S.C. § 3663(a)(2); 18 U.S.C. § 3663A(2).
[13] 458 U.S. 747 (1982).
[14] Id.at 757.
[15] Id. at 759.
[16] Id. at 759 n.10 (quoting David P. Shoulvin, Preventing the Sexual Exploitation of Children: A Model Act, 17 Wake Forest L. Rev. 535, 545 (1981)).
[17] United States v. Norris, 159 F.3d 926, 929 (5th Cir. 1998).
[18] Id. at 929-30 (internal citations and quotations omitted).
[19] Child Pornography Prevention Act of 1996, Pub. L. 104-208 § 121, 110 Stat. 3009, 26 (1996).
[20] Pub. L. No. 109-248.
[21] Id. at § 501.
[22] Id.
[23] See, e.g., United States v. Scheidt, 1:07-CR-00293, 2010 WL 144837 (E.D. Cal. Jan 11, 2010); United States v. Ferenci, No. 1:08-CR-0414, 2009 WL 2579102 (E.D. Cal. Aug. 19, 2009); United States v. Monk, No. 1:08-CR-0365, 2009 WL 2567831 (E.D. Cal. Aug. 18, 2009); United States v. Renga, No. 1:08-CR-0270, 2009 WL 2579103 (E.D. Cal. Aug. 19, 2009); United States v. Zane, No. 1:08-CR-0369, 2009 WL 2567832 (E.D. Cal. Aug. 18, 2009); United States v. Simon, No. CR-08-0907, 2009 WL 2424673 (N.D. Cal. Aug. 7, 2009); United States v. Staples, No. 09-14017, 2009 WL 2827204 (S.D. Fla. Sept. 2, 2009); United States v. Van Brackle, No. 2:08-CR-042, 2009 WL 4928050 (N.D. Ga. Dec. 17, 2009); United States v. Berk, No. 08-CR-212, 2009 WL 3451085 (D. Me. Oct. 26, 2009); United States v. Aumais, No. 08-CR-711 (N.D.N.Y. Jan. 13, 2010); United States v. Brunner, No. 5:08cr16, 2010 WL 148433 (W.D.N.C. Jan. 12, 2010); United States v. Hicks, No. 1:09-CR-150, 2009 WL 4110260 (E.D. Va. Nov. 24, 2009); United States v. Paroline, No. 6:08-CR-61, 2009 WL 4572786 (E.D. Tex. Dec. 7, 2009). The only federal circuit court of appeals to address this precise issue resolved the matter on standard of review grounds rather than engaging the merits of the arguments. See In re Amy, 591 F.2d 792 (5th Cir. 2009).
[24] e.g., Scheidt, 2010 WL 144837, at *4; Ferenci, 2009 WL 2579102, at *4; Monk, 2009 WL 2567831, at *4; Renga, 2009 WL 2579103, at *4; Zane, 2009 WL 2567832, at *4; Staples, 2009 WL 2827204, at *3; Van Brackle, 2009 WL 4928050, at *3; Berk, 2009 WL 3451085, at *7; Aumais, No. 08-CR-711, at 13; Brunner, 2010 WL 148433, at *2; Hicks, 2009 WL 4110260, at *3; Paroline, 2009 WL 4572786, at *4. But see Simon, 2009 WL 2424673, at * 6 (stating in dicta that the government had failed to meets its burden to show a causal connection between defendant's possession of child abuse images and harm to the victim).
[25] See Staples, 2009 WL 2827204, at *3.
[26] See, e.g., Aumais, No. 08-CR-711.
[27] See, e.g., Scheidt, 2010 WL 144837, at *4, Ferenci, 2009 WL 2579102, at *4; Monk, 2009 WL 2567831, at *4; Renga, 2009 WL 2579103, at *4; Zane, 2009 WL 2567832, at *4; Hicks, 2009 WL 4110260, at *3.
[28] See e.g., Van Brackle, 2009 WL 4928050, at *5; Berk, 2009 WL 3451085, at *7; Paroline, 2009 WL 4572786, at *4.
[29] Staples, 2009 WL 2827204, at *3.
[30] Id.
[31] Id. at *4.
[32] Id. at *3.
[33] Aumais, No. 08-CR-711, at 4-13.
[34] Id. at 15.
[35] Id.
[36] Id. at 15-16.
[37] Id. at 16-17.
[38] See, e.g., Scheidt, 2010 WL 144837, at *4; Ferenci, 2009 WL 2579102, at *4; Monk, 2009 WL 2567831, at *4; Renga, 2009 WL 2579103, at *4; Zane, 2009 WL 2567832, at *5.
[39] 18 U.S.C. § 2255(a).
[40] See, e.g., Scheidt, 2010 WL 144837, at *5 ("The court finds that $3,000 should be awarded as restitution in favor of [the victim]. This amount is two percent of the $150,000 amount reflected in Section 2255. Given the high amount of the deemed damages in Section 2255, the court finds an amount less than $3,000 inconsistent with Congress's findings on the harm to children victims of child pornography. At the same time, the court finds $3,000 is a level of restitution that the court is confident is somewhat less than the actual harm this particular defendant caused each victim, resolving any due process concerns."); Ferenci, 2009 WL 2579102, at *5 (same); Monk, 2009 WL 2567831, at *5 (same); Renga, 2009 WL 2579103, at *5 (same) ; Zane, 2009 WL 2567832, at *5 (same); Hicks, 2009 WL 4110260, at *6 ("In the end, the Court finds that the amount of $3,000, the amount identified as the correct restitution figure in several of the previously-decided [cases involving the same victim of the child abuse images], plus attorney's fees, is appropriate. The Court believes that at least fifty defendants will be successfully prosecuted for unlawfully possessing or receiving the [series of abuse images of the victim], given the numbers prosecuted to date. If restitution orders of $3,000 per case result, [the victim] will be compensated in full. Like the Eastern District of California, this Court is confident that the amount of harm [defendant] actually inflicted upon [the victim] exceeds the amount awarded, and thus [defendant] has little to protest in the way of due process or otherwise.").
[41] See, e.g., Van Brackle, 2009 WL 4928050, at *4; Berk, 2009 WL 3451085, at *5.
[42] See, e.g., Van Brackle, 2009 WL 4928050, at *5; Berk, 2009 WL 3451085, at *8.
[43] Landreth Timber Co. v. Landreth, 471 U.S. 681, 685 (1985).
[44] 18 U.S.C. § 2259(b)(1).
[45] Id. at (b)(3).
[46] Russello v. United States, 464 U.S. 16, 23 (1983).
[47] 18 U.S.C. § 2259(c) (emphasis added).
[48] 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.
[49] 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.").
[50] Elliot v. Turner Const. Co., 381 F.3d 995, 1006 (10th Cir. 2004) (emphasis in original).
[51] Notably, the victims in each of the cases that have issued from district courts since July 2009 discussed above did not rest on these presumptions, but presented considerable expert testimony and evidence of their losses, as well as victim impact statements recounting the harm. For instance, one victim submitted an impact statement that states, in part: "It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it. It's like I'm being abused over and over again."
[52] Aumais, No. 08-CR-711, at 16.
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