The US Supreme Court on Thursday agreed to examine whether anyone convicted of possessing images of child pornography can be required to pay a multimillion dollar restitution award to the abused child depicted in the illicit images – even if the individual had no direct contact with the child-victim.
Under the Mandatory Restitution for Sexual Exploitation of Children Statute, Congress said that a judge “shall order restitution” for the victim in a child pornography case in “the full amount of the victim’s losses.”
The law applies to those who personally engage in physical abuse of a child while producing pornographic images of the abuse. But the question in the appeal is whether the same law requires anyone who views or possesses the resulting child pornography to also pay the total amount of restitution.
The issue has arisen in hundreds of cases across the country involving possession of child pornography. The vast majority of courts have declined to require child pornography consumers (as opposed to producers) to pay the full amount of restitution. Only one federal appeals court, the New Orleans-based Fifth US Circuit Court of Appeals, has ordered full restitution under such circumstances.
On Thursday, the Supreme Court agreed to examine a case from the Fifth Circuit and decide whether the government or the victim must be able to prove there is a causal relationship between the defendant’s conduct and harm to the victim and the victim’s claimed damages.
The issue arises in the case of an East Texas man, Doyle Paroline, who faced a restitution demand of $3.4 million after pleading guilty to possessing child pornography. Investigators found 280 images on his computer. He was sentenced to two years in prison and 10 years of supervised release.
After his conviction, experts at the National Center for Missing and Exploited Children determined the identity of one of the children whose images were on Paroline’s computer. They identify her in court papers by the pseudonym “Amy.”
They found at least two images of Amy. Lawyers working on her behalf filed the request for full restitution.
Amy had been sexually abused as a child by her uncle. The uncle recorded the abuse on film and distributed the images on the Internet. The National Center for Missing and Exploited Children has found at least 35,000 copies of images of Amy’s abuse among the evidence in 3,200 child pornography cases since 1998.
The images are said to be “extremely graphic.”
The images of Amy’s abuse were traded on the Internet and are said to have gone “viral” among consumers of child pornography worldwide.
Amy has said in court filings that because images of her abuse continue to be sought out, traded, and viewed, she feels as if she is being abused “over and over again.”
She noted: “It feels like I am being raped by each and every [person who is looking at my pictures],” according to a brief filed on her behalf at the high court.
The central issue in the case is whether the law simply requires full payment of restitution in child pornography cases, or whether prosecutors or the victim must be able to prove a causal relationship showing the specific actions of a defendant caused specific harms to the victim.
In some cases, judges have taken the total amount of damages claimed by a child-victim and divided it by the number of other defendants ordered to pay restitution to that child-victim.
In contrast, the Fifth Circuit ruled that the statute requires judges to order defendants to pay the full amount.
The appeals court explained that the law would not allow “Amy” to collect the full amount of her losses several times over. Instead, her claims would end once she’d received the full amount of her claimed losses from one or more defendants.
In urging the high court to take up a similar case, lawyers for Amy and another child-victim said that unlike the Fifth Circuit, 10 other federal courts of appeal have ruled that child pornography victims must be able to show that a defendant’s actions were the proximate cause of the harms for which they seek restitution.
“The practical effect of this clearly-acknowledged circuit split is that child pornography victims in the Fifth Circuit are now receiving restitution for the full amount of their losses, as commanded by Congress,” wrote University of Utah Law Professor Paul Cassell in his brief to the court in a similar child pornography restitution case.
He noted that while the defendant in the Fifth Circuit case was ordered to pay Amy $3 million, the ordered restitution to Amy in a Ninth Circuit case was $0.
In identical cases involving the same victim and the same crime, the restitution award showed a $3 million variance, Cassell said.
“Allowing such disparate results contradicts the commitment to fair and equal treatment of criminal defendants – and crime victims,” he wrote.
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