The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Friday, President Trump signed into law the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (AVAA). The Act will help victims of what are frequently referred to as "child pornography" crimes obtain full restitution. The Act helps to resolve a thorny legal issue about how to provide restitution to victims—an issue that was addressed in a 2014 case I argued before the U.S. Supreme Court with co-counsel James Marsh, Paroline v. United States. In rejecting our position that each defendant should pay the "full amount" of a victims losses, the Court articulated a confusing view on the partial restitution to which victims like Amy were entitled. The new law will help ensure victims ultimately receive full restitution from defendants who have harmed them.
A bit of background will usefully frame the importance of the new law. Victims of some crimes—including child pornography crimes—suffer injuries caused by multiple defendants. One such victim is "Amy," who was repeatedly raped by her uncle starting when she was four years old. She disclosed the abuse, received treatment, and (according to her therapist) was "back to normal" when she was nine. Then, when she was seventeen, Amy discovered that images of her sexual abuse were among the most widely circulated in the world. The knowledge the persons around the world are viewing those images has been psychologically very harmful to Amy.
Amy's distress is not unusual. As Senator Hatch explained in remarks regarding the new act: "Child pornography is unlike any other crime. The abuse involved in creating these images profoundly alters the lives of victims, while trafficking in the permanent record of that abuse perpetuates and expands the harm. As the Supreme Court noted in . . . Paroline v. United States: 'Every viewing of child pornography is a repetition of the victim's abuse.'"
When defendants are convicted for possessing child pornography, frequently Amy's (or Vicky's or Andy's or other victims') images are among those the defendant possessed. The defendant is, accordingly, in part responsible for the emotional distress suffered by the victim. But what share of the emotional distress is any particular defendant responsible for? In Paroline, the Supreme Court interpreted the restitution law then in effect (18 U.S.C. sec. 2259) as requiring some sort of disaggregation of the responsibility for the harm suffered by a victim. In an opinion written by Justice Kennedy, a narrow majority concluded that "[i]n this special context, where it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim's general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount."
Chief Justice Roberts dissented in Paroline. He wrote: "The Court's decision today means that Amy will not go home with nothing. But it would be a mistake for that salutary outcome to lead readers to conclude that Amy has prevailed or that Congress has done justice for victims of child pornography. The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it."
Since the Paroline ruling, federal trial courts across the country have struggled to operationalize the Supreme Court's command to "order restitution in an amount that comports with the defendant's relative role in the causal process"—and for good reason. If (as seems quite likely) Amy is victimized by tens of thousands of viewers of her images, it may be next-to-impossible to assign some specific causal role to any particular defendant.
In 2015, I co-authored a law review article (with my co-counsel James Marsh), urging Congress to eliminate this problem by setting minimum restitution amounts. Congress has now followed that suggested approach in the AVAA.
Here are a few highlights from the new law: As factual support for the Act, Congress found that "the unlawful collective conduct of every individual who reproduces, distributes, or possesses the images of a victim's childhood sexual abuse plays a part in sustaining and aggravating the harms to that individual victim." (Sec. 2(f)). As a result, the Act requires a court sentencing a defendant convicted of a child pornography crime harming a victim to determine the full amount of that victim's losses and then to order restitution from a defendant for amount reflecting the defendant's relative role in the causal process. (Sec. 3(a)(2)(B)). But—and here's a new innovation—a trial court must impose restitution in the minimum amount of $3,000.
The AVA also creates a fund for compensating victims of child pornography trafficking in child pornography trafficking (advertising, distribution, and possession) and child pornography production. Whenever a defendant is convicted of a child pornography trafficking crime, for example, a victim has the option of electing to receive a one-time "defined monetary assistance" in the amount of $35,000 (indexed for inflation). The fund will be paid for, in party, through special assessments levied on defendants who are convicted of trafficking crimes, with an additional appropriation of $10 million per year if necessary. Attorneys' fees are capped at 15%.
From a practical point of view, with regard to restitution litigation the most salient feature of the new law will be the $3,000 fixed minimum amount. This minimum ensures that child pornography victims will not receive a token award from any particular defendant. Does this mean that the new law is subject to the same criticisms as mandatory minimum sentencing laws (criticisms that I have articulated with respect to "stacking" gun charges). The situations seem easily distinguishable:
Although reasonable people can differ on the appropriateness of such mandatory [prison] sentences, it is important to understand that the AVAA does not specify mandatory prison sentences designed to punish offenders. Instead, the AVAA is a remedial statute designed to provide compensation that is akin to joint and several liability in civil tort law. No one suggests that a tort defendant who is ordered to pay the full amount of a victim's losses is somehow subjected to a "mandatory minimum." Like joint and several liability, the AVAA spreads liability for the full amount of a victim's losses across a wide, and often ever-increasing, number of defendants who all become contributors and payors. Instead of one defendant paying one amount and another defendant paying another amount and still other defendants paying nothing, the AVAA requires all defendants to pay something according to their means and in accordance with a reasonable and proportional payment schedule under 18 U.S.C. § 3664. The inherent inequity of the post-Paroline ad hoc multi-factor driven approach is replaced by a simple and streamlined statutory assessment, which is below the statutorily established fine.
This is an excellent new law, which will help to provide full restitution to innocent child pornography victims from guilty defendants involved in child pornography crimes.