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.

Dr. Eli Newberger on Penn State

In the best and most enlightening interview on the Penn State scandal to date, Dr. Eli Newberger, a renowned expert on child abuse and pedophilia, talks about what Sandusky said in his interview and the victims of Sandusky's alleged abuse.

Watch this great interview here.

Barely Legal in PA

Okay, I'm finally speechless. The Penn State scandal has finally done it. This post needs no further commentary:

Sandusky lawyer impregnated a teen

The lawyer for accused child molester Jerry Sandusky apparently likes his women young.

Defense attorney Joe Amendola, 63, representing Sandusky in the sexual molestation case roiling Penn State and Joe Paterno’s legendary football program, impregnated a teenager and later married her, The Daily has learned.

According to documents filed with Centre County Courthouse, Amendola served as the attorney for Mary Iavasile’s emancipation petition on Sept. 3, 1996, just weeks before her 17th birthday.

The emancipation request said Mary graduated from high school in two years with a 3.69 grade point average and maintained a full-time job — but makes no mention of any special relationship between her and her lawyer.

Roughly around the same time, however, Iavasile became pregnant with Amendola’s child, and gave birth before she turned 18, her mother, Janet Iavasile, alleged in an interview with The Daily.

He was born in 1948 and was around 49 at the time.

“At the time, I didn’t know the extent of the relationship,” said Janet of when her daughter first began spending time with the attorney. Amendola seemed more like Mary’s “mentor,” she added.

“She met him through the school district; she was interested in the law,” Janet said.

Read this entire story here at The Daily.

Exploitation of Children Over the Internet Congressional Testimony

The C-Span Video library is a tremendous resource. It has archived on the internet thousands of Congressional hearings and testimony available nowhere else.

Here is Masha Allen's testimony in May 2006 about her international adoption by pedophile Matthew Mancuso.

Unfortunately the explosive Congressional Hearing in September 2006 concerning so-called Follow-Up Issues to the Masha Allen Adoption (i.e., how a single adult male pedophile was able to adopt a five year old Russian girl with the approval of the U.S. State Department and the State of Pennsylvania) is only available in a boring old Congressional Report. Sadly, that revolution was not televised.

How We Can Prevent Child Sexual Abuse

This just arrived in my inbox from the Massachusetts Citizens for Children Enough Abuse Campaign. It is well worth repeating here:

An Open Letter to Massachusetts Citizens About the Penn State Scandal
How We Can Prevent Child Sexual Abuse in Our State

While the Penn State child sexual abuse scandal and cover-up grab national attention, the fact is that cases of child sexual abuse continue to be exposed with unrelenting regularity in every state and community across our country. In Massachusetts alone just in the past six months, we have learned about the decades-long sexual abuse of boys treated by renowned pediatrician Dr. Melvin Levin of Children’s Hospital, the revealed boyhood sexual abuse of Senator Scott Brown by a counselor at a Cape Cod summer camp, the sexual abuse of young female tennis players by former Massachusetts coach and International Tennis Hall of Famer Bob Hewitt. Many more current incidents of child sexual abuse involving less well-known abusers appear weekly in local newspapers all across our state.

Predictably, the Sandusky/Paterno case has prompted the media to focus on who knew what and when. Legislators rush to file bills to strengthen reporting requirements, the alleged abuser is arrested and charged, and we all express sorry for the children who have been violated and for their families who are distressed beyond what we can even imagine.

But the truth is that these after-the-fact responses are insufficient to address what the American Medical Association has labeled “…a silent, violent epidemic.” It’s time to support efforts aimed at preventing child sexual abuse from happening in the first place. This is what Massachusetts Citizens for Children (MCC), lead agency for the Enough Abuse Campaign, has been working to do since the Campaign was launched in 2002.

A public opinion poll conducted in 2007 by the Campaign documented that:

• 80% of citizens believe child sexual abuse is a serious problem in our state


• 75% said they believe it is preventable


• 64% said they would be willing to participate in local community trainings about child sexual abuse and how they can prevent it—up from 48% in a poll conducted four years earlier

Clearly, citizens like you are critical partners in getting the word out that child sexual abuse can be prevented and that in Massachusetts, through the Enough Abuse Campaign, we have the tools and the tested strategies to get the job done.

As a parent, grandparent, or concerned citizen, we are asking you to:

1. Educate yourself about the real facts of child sexual abuse so that you can be an informed advocate for your children and all the children in your family and community.


2. Get involved with the Enough Abuse Campaign, a Massachusetts effort that has been recognized nationally as an effective model to mobilize communities and educate parents, youth, and a range of professionals and other adults about child sexual abuse and how to prevent it.


3. Support the Campaign with your dollars so we can achieve our goal: By 2015 every city and town in Massachusetts will be actively engaged in learning about child sexual abuse and preventing it.

Here are the Details

The Enough Abuse Campaign is overseen by the Massachusetts Child Sexual Abuse Prevention Partnership, a collaboration of twenty statewide public agencies and private organizations. The Campaign was formed in 2002 under a 5-year grant from the U.S. Centers for Disease Control and Prevention, our nation’s leading public health agency.  The Campaign is now operating in Greater Gloucester, Newton/Waltham, Orange/Athol area, Greater Lowell, Springfield, and in western rural counties. Efforts are currently underway to expand the Campaign to Cape Cod and other communities.

The Campaign’s work has caused the CDC to call Massachusetts “one of the first states in the nation to lead a trailblazing effort to prevent child sexual abuse….” The Ms. Foundation for Women has called the Campaign “an effort that breaks the mold on child sexual abuse in many ways. Its emphasis on community collaboration truly sets it apart from previous efforts.” The Campaign was selected earlier this year by the U.S. Department of Health and Human Services as one of 12 exemplary projects in the country working to end child maltreatment.

While the Campaign mobilizes communities and trains their leaders to deliver free in-person community workshops and presentations, a new effort has been launched to educate concerned citizens in the privacy of their own homes and offices. By “Joining the Movement” on the Campaign’s homepage, members receive by email our “10 Conversations” series; a new short educational piece is sent twice each month for five months filled with critical information every concerned adult should know and can use to prevent sexual abuse. Topics include:

1. What is Child Sexual Abuse? Touching and Non-Touching Offenses


2. Who are the Abusers? How Can We Identify Them?


3. Grooming Tactics used by Sexual Abusers


4. Behavior and Physical Signs that Might Indicate Child Sexual Abuse


5. Sexual Behaviors of Children: Typical or Problematic?


6. Responding to Sexual Behaviors of Children: Building Skills to Respond Appropriately


7. Talk to Your Children: It’s Easy if You Begin Early and Communicate Often


8. Impact of Child Sexual Abuse on Children


9. Keeping Children Safe on the Internet


10. The Public’s Opinion on Child Sexual Abuse

The series is followed with regular email updates about the latest information in the field, activities of Campaign communities, special events and trainings, and profiles on outstanding prevention advocates.

So please take these actions today. Go to www.enoughabuse.org and view our brief video, “a silent epidemic.” (Many have called it “powerful”, “compelling”, “a real eye opener.”) Then be sure to “Join the Movement” on the homepage so you can begin immediately receiving our “10 Conversations” series online. Tell family members, friends and colleagues about how they, too, can get educated and encourage them to join.

Enjoying Young People in the Shower and Having a Good Time

In a series of interviews last night, accused Penn State child molester Jerry Sandusky was asked if he is “sexually attracted to underage boys?” He responded, “No. I enjoy young people.” When asked to explain Sandusky's alleged rape of a ten year old boy in the Penn State locker room on a Friday night in 2002, his lawyer Joe Amendola replied that “the kid was messing around and having a good time” in the shower with Sandusky:

“Jerry Sandusky is a big, overgrown kid. He's a jock,” Amendola told CNN's Jason Carroll. “The bottom line is jocks do that—they kid around, they horse around.”

Amendola told NBC's Today show the apparent person in question claims the alleged rape never happened.

“We believe we've found him and if we have found him, he's telling a very different story than Mike McQueary and that's big news,” Amendola said.

Clearly, the effort to whitewash the overwhelming evidence against Sandusky is in full swing. Unfortunately the willingness of otherwise honest and decent people to ignore and justify the actions of pedophiles and child molesters is nothing new and all too common.

Just last week in the New York Times, respected Ohio State law professor Douglas Berman referred to child pornography as nothing more than “dirty pictures.” This kind of flippant belittling effectively desensitizes and normalizes the collection and broad dissemination of pictures and videos of pre-pubescent children being raped and sexually exploited.

What Berman fails to recognize is that “in the context of children … there can be no question of consent, and use of the word pornography [let alone “dirty pictures”] may effectively allow us to distance ourselves from the material’s true nature. A preferred term is abuse images and this term is increasingly gaining acceptance among professionals working in this area. Using the term abuse images accurately describes the process and product of taking indecent and sexualized pictures of children, and its use is, on the whole, to be supported.” Sharon W. Cooper, et. al., Medical, Legal, & Social Science Aspects of Child Sexual Exploitation p. 258 (2005).

Not surprisingly, Professor Berman is a defense expert witness in child pornography cases and a critic of mandatory minimum sentences for inter alia producing, collecting and sharing child pornography.

In an interview with Cincinnati.com, Professor Berman claimed that “because the Internet has made this kind of material more readily available, it's not as obvious that someone who looks at these images will be a serious threat to do harm to a child.” Rationalizing the wide and ubiquitous availability of child pornography, Berman intoned “we're to a point now where it's just one click. There may be a lot of serendipity as to whether that one click gets you one picture or a thousand pictures.”

Berman is not alone in providing intellectual cover for child molesters. None other than the Administrative Office of the United States Courts has taken the position that “the only appropriate judicial role” is to deny restitution requests for victims of child molesters who are convicted of collecting child pornography.

That's right. In an illegal advocacy brief written by the federal court system itself, Assistant General Counsel Joe Gergits suggested that “even though federal law prohibits him from lawfully “engag[ing] directly or indirectly in the practice of law in any court of the United States,” his “legal advice” is something which might “coincidentally” be beneficial to judges around the country.

After its release in August 2009, Mr. Gergits' brief quickly became exhibit number one for child molesters across the country who were seeking to avoid paying criminal restitution to child pornography victims. The brief was reportedly distributed to the chief probation officer in every federal judicial district in the country.

By actively taking such a position, the United States federal court system itself injected bias and prejudice against child crime victims into the "independent, national judiciary providing fair and impartial justice."

New York University law Professor Amy Adler explained that since the legal war against child sex abuse images has already been lost, there is “the possibility that certain sexual prohibitions invite their own violation by increasing the sexual allure of what they forbid.” Adler argues that “the dramatic expansion of child pornography law may have unwittingly heightened pedophilic desire.”

In the Berman-Gergits-Adler justice system, the very existence of laws against child sex abuse images and the wide availability of those images creates unwitting offenders who are then prosecuted in a justice system which is biased against the “alleged victims” depicted in the images and who are ultimately given little or no criminal sentence.

Add to this mix yellow journalists like the New York Times' Erica Goode—whose recent article on an absurdly rare “life sentence” for child pornography gave carte blance acceptance to a defense attorney's proclamation that “a growing body of scientific research shows that that someone who looks at child pornography is not a child molester or will become a child molester”—and Debbie Nathan—whose so-called National Center for Reason and Justice is a wholly owned subsidiary of the pedophile defense bar and whose work for the movie Capturing the Friedmans vigorously advocated for the absolution of convicted child molesters Jesse and Arnold Friedman—and it's not a stretch to believe that Sandusky was just behaving like one of the boys.

Everything can be explained away. Things are not what they seem. A little fun in the shower never hurt anyone.

Sadly, the effort to silence, marginalize and de-legitimize victims of child sex crimes is alive and well in 2011.

To quote the Pope, again, approvingly:

In the 1970s, paedophilia was theorized as something fully in conformity with man and even with children. This, however, was part of a fundamental perversion of the concept of ethos. It was maintained—even within the realm of Catholic theology—that there is no such thing as evil in itself or good in itself. There is only a “better than” and a “worse than.” Nothing is good or bad in itself. Everything depends on the circumstances and on the end in view. Anything can be good or also bad, depending upon purposes and circumstances. Morality is replaced by a calculus of consequences, and in the process it ceases to exist. The effects of such theories are evident today.

The rationalization and justification of child sex abuse in all its forms not only discredits the victims, it corrupts justice and society. Morality ceases to exist. Evil becomes a construct. Punishment disappears.

Understanding the sexual exploitation of children means accepting that evildoers actively exploit the naivete of youth by grooming victims, establishing trust, normalizing deviant behavior and enforcing loyalty. When caught perpetrators sow doubt and confusion.

No wonder Sandusky's victims feel sadness, shame and even complicity. As one of the Penn State victim's attorney, Ben Andreozzi, revealed yesterday on the Today show:

The eight victims currently involved in charges against Sandusky all became part of the Penn State football team’s inner circle and developed deep attachment to the program.

“I think it’s fair to say the victims could be thinking to themselves right now that as a result of (my) coming forward, look what’s happened to this football program,” Andreozzi said.

“These folks were involved in the Penn State football community—they were on the sidelines at football games, they were spending significant amounts of time travelling with the team and/or in the locker room with the team and getting to know members of that football team.”

Andreozzi added that his client, who is now in his 20s, is grieving. “To say that he’s torn apart, I think would be an emotion that would really explain where he’s at right now.”

As I wrote on this blog in July, “The Secret" is the key to understanding child sex abuse.

In my post Pedophiles Lobby for Acceptance I explain how politically motivated child molesters and pedophiles actively discredit social science research which indicates a substantial rate of recidivism by convicted child sex offenders.

Sandusky and his defenders fit into a well-established dialectic which minimalizes the crime and co-opts the victims. Let's hope that this time around, voices of reason and justice prevail.

It's Open Season on Children in Pennsylvania

As anyone who has read this blog for any length of time knows, there's something rotten in the state of Pennsylvania when it comes to protecting children. From Masha Allen (who was adopted from Russia by a pedophile with the help of one of Pittsburgh's premier adoption agencies), to the Luzerne county kids for cash scandal, to high school students being spied on at home by school administrators; the list of woe goes on and on.

Now Hank Grezlak, the editor-in-chief of The Legal Intelligencer—Pennsylvania's influential legal daily—has articulated what many of us have known for years: It's Open Season on Children in Pennsylvania.

In this hard-hitting commentary, Grezlak writes:

In light of the Penn State sex abuse scandal, Pennsylvania really needs to change its nickname from the Keystone State to the Child Abuser State.

The shameful moniker fits. After a decade that has already included the Archdiocese of Philadelphia priest sex abuse scandal and the Luzerne County judicial scandal featuring "kids-for-cash," how can anyone argue that it isn't a fitting label?

In all three instances, powerful people and powerful institutions failed to protect the most vulnerable and innocent in society: children.

In all three instances, authorities were made aware of harm or wrongdoing being committed, and did nothing.

In all three instances, people have made excuses for those in power who failed to act, either by failing to report or investigate, allegations of misconduct.

As with the previous two scandals, in the wake of the Penn State disgrace, there will be much hand-wringing and demonizing of a few, along with committees and panels appointed. Inevitably, recommendations will be made that will largely be ignored.

There will be a push to put more laws on the books and stiffen penalties, but those largely will be punitive and after the worst has already been done. We're not hurting for prosecutors bringing high-profile cases and getting convictions. But again, that's about seeking justice after the worst has happened, not about protecting kids in advance.

We, as a society in Pennsylvania, have failed to protect our kids.

It's an excellent sobering commentary. A big shiny gold star to Mr. Grezlak for boldly stating what needs to be said and DONE and which should have been said and DONE years ago. Changing the culture will take time and vigilance. Grezlak takes a bold first step in the right direction.

Read his entire well-deserved invective here.

Lawyers at the Center of the Penn State Rot

According to this post in the AmLawDaily blog, numerous lawyers—including a mysteriously disappeared district attorney—are at the center of the widening Penn State child molestation scandal:

Curley and Schultz stepped down from their respective posts Monday, not long after news of the charges levied against them and Sandusky broke over the weekend. Sandusky himself retired in 1999, but remained active with The Second Mile children's charity, which he founded in Penn State's hometown of State College, Pennsylvania, in 1977. Prosecutors, led by Pennsylvania attorney general Linda Kelly, claim that Sandusky met the eight boys he is accused of sexually assaulting over a 15-year period via his association with the Second Mile charity.

In an added wrinkle, the 23-page grand jury report laying out the state's charges against the Penn State trio notes that the university's former outside general counsel, Wendell Courtney of State College-based McQuaide Blasko, served as an attorney for Second Mile. According to the grand jury report, Courtney reviewed a 1998 report prepared by Penn State police that detailed inappropriate interactions between Sandusky and an underage boy. The incident never led to any formal charges, and efforts to understand why are complicated by the fact the former local district attorney, Ray Gricar, went missing under mysterious circumstances in 2005, according to The New York Times.

McQuaide Blasko's Web site identifies Courtney as pro bono counsel to Second Mile. He did not respond to a request for comment Wednesday about his work for either the charity or Penn State. The university replaced Courtney and McQuaide Blasko as general counsel last year.

Child Sex Abuse—Let the games begin!

I won't repeat what has already been said about the child sex abuse scandal engulfing Penn State. Everything which needs to be said can be found in the Grand Jury Findings of Fact and Recommendation of Charges.

Yesterday, National Center for Victims of Crime, released the following statement which is worth repeating.

Washington, DC: The National Center for Victims of Crime today called on the National Collegiate Athletic Association (NCAA) and all educational institutions to respond quickly and forcefully to sexual abuse. The arrest of a former Penn State athletic coach for allegedly abusing eight young men shows why—for every institution in our society—protecting young people must become a top priority.

“For too long, institutions have sought to protect their reputations by ignoring allegations of abuse,” said Mai Fernandez, executive director of the National Center for Victims of Crime. “Instead of explaining away or covering up these allegations, administrators can actually protect their institutions by rooting out individuals who commit abuse.”

Research shows that abusers—except for the fact that they abuse children—usually appear to be respectable, ordinary citizens. They may be teachers, camp counselors, Boy Scout leaders, tutors, or coaches or tutors. Their one common trait is that they look for situations where they can be trusted with access to victims.

“Sex abusers win the trust of kids and the people those kids look up to—such as coaches and other officials,” says former Philadephia Eagles linebacker Al Chesley, who was abused by a neighbor who was a police officer when Chesley was 13. “Predators camouflage themselves so it’s hard for anyone to figure out what they’re doing, and they use organizations to keep hurting kids. It’s in everyone’s interest to find out who these people are and shut them down.”

Institutions can take steps to protect themselves from harboring predators. They can conduct background screenings for prospective employees, especially those who work with young people. They can respond immediately to any allegations of abuse—making sure that victims report incidents and that these reports are investigated thoroughly. And they can follow the Center for Disease Control and Prevention’s best practices for preventing sexual abuse in youth serving institutions.

Legislators throughout the nation can also do their part. Right now in Pennsylvania, for example, Judiciary Committee Chair Representative Ron Marsico is holding up a bill (HB 878) that would create a “window” of opportunity to allow child sexual abuse victims to sue, no matter how long ago they were abused. Similar legislation passed in Delaware in 2007 resulted in civil suits that exposed many previously unreported predators. Because it can take victims decades to address the abuse, and because many of these predators continue to abuse children, Pennsylvania should pass this legislation to help heal victims and prevent future crimes.

“When institutions take steps to eliminate sex abusers and legislators act to protect victims and prevent them from hurting children, we will make progress in preventing this crime,” Fernandez added. “Institutions must earn their good reputations by responding forcefully to child sexual abuse.”

Finally, The Legal Intelligencer has a good article explaining why the prosecution trying the cases against former Penn State Athletic Director Tim Curley and former Vice President for Finance and Business Gary Schultz might have difficulty proving one of the charges pending against the two administrators.

According to the article, Curley and Schultz are charged with both failure-to-report an incident of child abuse and perjury. Frank Cervone, executive director of the Support Center for Child Advocates, told The Legal that the defendants might have a “credible, if not very satisfying defense” on the failure to report charges because the alleged incident occurred when a more restrictive version of the law was in place.

Under the statute at issue—23 Pa.C.S. Section 6311—a mandated reporter must “[come] into contact with children” as part of his or her position. In 2002, when the alleged incident occurred, a prior version of the statute required an abused child to come directly into contact with a person “in their professional or official capacity” in order for them to be a mandated reporter. The law widened in 2007 to include those who hear the information secondhand.

Corporeal Punishment for the Masses

The rise of corporeal punishment theory is a troubling cultural phenomenon which really takes us back to the dark ages of unquestioned rule by authority. The link between spanking and conservative Christianity is insulting to the vast majority of believers who do not condone religiously inspired child abuse. It also creates a strange affinity between Catholicism—where child sex abuse has run rampant for years—and evangelicalism—where beating children has seemingly become the God-given norm; the Catholics get the sex and the Evangelicals get the hide. Where can a godly child find religion without loosing their heart and soul?

This is not to say that only Catholics and only Evangelicals have institutionalized child abuse. Anywhere children gather, pedophiles and child molesters are sure to roam. This should come as no secret to anyone. It is the indoctrination of these beliefs, however, which is most disturbing.

Last year, the Pope stated in his Christmas address to cardinals that “in the 1970’s pedophilia was theorized [by the church] as something fully in conformity with man and even with children.”

At first I considered this an unbelievable and outrageous statement so far beyond the norm and offered as an absurd justification for child sex abuse. Now I’m not so sure.

On Sunday, the New York Times ran a story entitled Preaching Virtue of Spanking, Even as Deaths Fuel Debate. The piece reviews the teachings of Michael Pearl, an evangelical Christian minister whose fast selling publications advocate systematic use of “the rod” to teach toddlers to submit to authority. The methods, seen as common sense by some grateful parents and as horrific by others, are modeled, Mr. Pearl is fond of saying, on “the same principles the Amish use to train their stubborn mules.”

According to the New York Times:

Debate over the Pearls’ teachings, first seen on Christian Web sites, gained new intensity after the death of a third child, all allegedly at the hands of parents who kept the Pearls’ book, “To Train Up a Child,” in their homes. On Sept. 29, the parents were charged with homicide by abuse.

More than 670,000 copies of the Pearls’ self-published book are in circulation, and it is especially popular among Christian home-schoolers, who praise it in their magazines and on their Web sites. The Pearls provide instructions on using a switch from as early as six months to discourage misbehavior and describe how to make use of implements for hitting on the arms, legs or back, including a quarter-inch flexible plumbing line that, Mr. Pearl notes, “can be rolled up and carried in your pocket.”

The furor in part reflects societal disagreements over corporal punishment, which conservative Christians say is called for in the Bible and which many Americans consider reasonable up to a point, even as many parents and pediatricians reject it. The issue flared recently when a video was posted online of a Texas judge whipping his daughter.

Sadly, adopted children are frequently fatal victims of the Pearls’ teachings. The New York Times highlights three such cases. There are undoubtedly many more.

Which brings me back to the Pope. If taken at face value and believed as absolute truth, misguided ill-intentioned “theories” (especially those theories which are backed by G-d) can have devastating consequences for children. Add to the mix internationally adopted children and pathological parents, and the result is often abuse, exploitation and death.

The belief, so frankly expressed by the Pope, that abuse is somehow “natural” or that “it’s good for them,” is a classic method of normalizing and rationalizing physical and sexual abuse. This is exactly how pedophiles and child molesters groom their victims. These dogmatic beliefs—whether Catholic, Evangelical or pedophilogical—are one in the same; justification and rationalization of systematic child abuse and exploitation.

Just ask Rita Swan, whose pioneering work to eliminate religion-based medical neglect (which often leads to death), has brought her into conflict with the powerful but marginal Christian Science religion. Rita, a former Christian Science adherent, founded CHILD after she lost her own only child to a routine illness which Christian Science prayers failed to cure.

Why is it acceptable to be easily outraged by a Pedophile’s Guide to Love and Pleasure while To Train Up a Child engenders thoughtful analysis and scholarly debate (even legal justification like this "academic" article in the Akron Law Review). After all, both were for sale on Amazon along with the sexually graphic book by Peter Sotos celebrating Masha Allen’s abuse and exploitation as the world’s first child porn star.

There are dozens of Facebook groups for parents who "spank," along with pictures and techniques. There are many more sites, both overt and covert, offering how-tos on child sex abuse and child pornography.

In today’s op-ed entitled The Molester Next Door, columnist Frank Bruni writes:

The longest, most exhaustively researched article I ever wrote for a newspaper or magazine was about a child molester who had sexually abused a little boy living down the street. The abuse went on for more than two years, beginning when the boy was 10.

This molester had a job. A house. A wife. Two kids of his own. And he gained access to his victim not through brute force but through patience, play and gifts: help with his homework, computer games, a new bike. To neighborhood observers, including the victim’s parents, the molester’s attentiveness passed for kindness, at least for a while. A molester’s behavior very often does.

This is something that has come up repeatedly over decades—I wrote that article back in 1991, for The Detroit Free Press—but that remains tough to accept: the predator to watch out for is less likely to don a trench coat and lurk behind a bush than to wear a clerical collar and stand near the altar or to hold a stopwatch and walk the sidelines. And he (or, for that matter, she) works with children as a function of being drawn to them for reasons beyond their welfare.

Amen Frank Bruni. Of course we know this troubling fact (at least if you’ve been reading this blog for any period of time), but over and over again we choose to ignore it. It is the same thinking that allows us to accept what the Pope revealed or what the Pearls espouse. Write it down and it has power. Explain it away and people accept it. Enshrine it in a belief system and it’s unstoppable.

Without lawyers they can count on (at least in Colorado), peers they can turn to (at least in school), and fair and timely redress in the criminal court system (restitution denied), all children—and especially child victims—face an uncertain fate and treacherous future. Maybe the little girl with the knife has the right idea after all. Now all she needs is someone like the NRA to come to her rescue!

Title IX's Demise in the Public School System

Title IX is a 1972 federal law which requires gender equity for boys and girls in every educational program that receives federal funding. This includes the vast majority of public school systems in our country.

Title IX prohibits both teacher-student harassment and student-student harassment. It also prohibits a hostile environment based on gender. The goal is to eliminate sex-based discrimination in federally assisted education programs. Every public school has an affirmative obligation to prevent sex-based harassment and to lessen the harm to students if, despite their best efforts, harassment occurs.

Almost forty years after the enactment of Title IX, a recently released study by the American Association of University Women reveal that sex-based harassment is pervasive in the public school system.

According to the report, Crossing the Line: Sexual Harassment at School, nearly half of 7th to 12th graders experienced sexual harassment in the last school year with 87% of those who were harassed reporting negative effects such as absenteeism, poor sleep and stomachaches.

For the purposes of the study, harassment was defined as “unwelcome sexual behavior that takes place in person or electronically.” Over all, girls reported being harassed more than boys—56% compared with 40%—though it was evenly divided during middle school. Boys were more likely to be the harassers, according to the study, and children from lower-income families reported more severe effects.

“It’s pervasive, and almost a normal part of the school day,” said Catherine Hill, the director of research at AAUW and one of the report's authors.

Over all, 48% of students surveyed said they were harassed during the 2010-11 school year. Forty-four percent of students said they were harassed “in person”—being subjected to unwelcome comments or jokes, inappropriate touching or sexual intimidation—and 30% reported online harassment, like receiving unwelcome comments, jokes or pictures through texts, e-mail, Facebook and other tools, or having sexual rumors, information or pictures spread about them.

Whatever the medium, more girls were victims: 52% of girls said they had been harassed in person and 36% online, compared with 35% of boys who were harassed in person and 24% online.

Harassers come in all shapes and sizes, but the AAUW survey revealed overarching patterns. Nearly all the behavior documented in the survey was peer-to-peer sexual harassment. Boys were more likely than girls to say they sexually harassed other students (18% vs. 14%). Most students who admitted to sexually harassing another student were also the target of sexual harassment themselves (92% of girls and 80% of boys). Almost one-third (29%) of students who experienced sexual harassment of any type also identified
themselves as harassers. Only 5% of students who had never experienced sexual harassment identified themselves as harassers.

It is clear from this study that Title IX's promise of a learning environment free from sex harassment has failed miserably. Students revealed that the ability to anonymously report problems was a top recommendation (57%) as was enforcing sexual harassment policies and punishing harassers (51%). Schools which fail to address the behavior outlined in this report are inviting not only costly litigation, but a student-body which is rife with discord and distress.

Sadly, behavior which is not tolerated in the workplace has become a routine part of student life in our nation's public schools. At a time when workplace sex harassment has taken center stage in the Republican presidential race (40% of Republicans and Independents consider the employment based sex harassment claims against candidate Herman Cain a "serious matter"), the even bigger problem of sex harassment in school has gone all but unnoticed.

It's time for the public school system to return Title IX to it's rightful place as guarantor of a educational environment free from sex based harassment in every form and format. Schools need to continuously publicize and promote sex harassment policies and procedures. They need to institute anonymous reporting and vigorous enforcement. Schools need to institute a zero tolerance policy for both bullying and sex harassment. If we can have drug free school zones, why not harassment free school zones too?

Court Rules Attorney-Client Privilege ≠ Colorado GAL-Attorneys

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In reaching its decision, the Court noted

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

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

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

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

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

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

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

(A) medical services relating to physical, psychiatric, or psychological care;

(B) physical and occupational therapy or rehabilitation;

(C) necessary transportation, temporary housing, and child care expenses;

(D) lost income;

(E) attorneys’ fees, as well as other costs incurred; and

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

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

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

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

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

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

Conclusion

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

---

* “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.