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Possession of Rape Video Warrants Restitution; Victim Awarded Over $1 Million Thus Far; Supreme Court Grants Cert.

When she was a little girl, Amy’s uncle videotaped himself raping her, then shared the video with other pedophiles. Now in her 20s, Amy (a pseudonym) is seeking restitution from everyone who has ever possessed and viewed the pornographic images of her. The extent to which she is entitled to restitution is now before the Supreme Court.

Years ago, when Amy was 8 years old, a pedophile asked her uncle to rape her and videotape the assault, according to government documents. Her uncle sexually abused her, was convicted and sentenced to prison. Amy collected a few thousand dollars in restitution from her uncle.

She initially healed from the abuse, but “drastically deteriorated” when she learned, years later, that images of her rape were being widely collected and traded by other pedophiles online.

Amy suffers ongoing trauma because she is constantly revictimized but is powerless to stop it, her lawyer stated. She developed emotional and psychological problems; for example, she bit her nails until they bled, abused alcohol and could not finish college.

On average, every day Amy’s attorney is notified of at least one new case involving images of her rape. So far he has been notified of over 1,500 cases and estimates that at least 10,000 pedophiles have possessed the images.

“A reasonable estimate of the total number of persons who will collect Amy’s image over the course of her lifetime is 100,000,” her restitution petition alleges.

Since 2008, University of Utah law professor Paul Cassell and New York attorney James R. Marsh have filed hundreds of restitution requests on Amy’s behalf, under 18 U.S.C. § 2259. Each request seeks approximately $3.3 million, though the awards are typically much smaller than that amount. Amy has been awarded more than $1 million in restitution thus far, according to Cassell.

Once she has recovered enough money to cover her losses, Amy will stop seeking restitution, Cassell said. Yet he noted that the ubiquitous pornographic images of her rape will likely never be completely eliminated, given the nature of the Internet.

Courts have disagreed about victims’ right to restitution in cases like Amy’s. “We’re talking about an area of the law that just plainly is not settled,” said Meghan Ryan, an assistant law professor at Southern Methodist University.

While some courts have awarded Amy the requested restitution, others have refused without a showing of “proximate cause” – a direct connection – between the harm she suffered and the pedophile’s possession of images of her.

For example, Texas resident Doyle Randall Paroline pleaded guilty to federal charges of possessing child pornography, including two images of Amy’s rape. After he was sentenced to two years in prison, federal prosecutors moved for full restitution for Amy. Paroline’s attorney, Stanley Schneider, while acknowledging that Amy was “horribly abused,” argued she was not entitled to restitution because she had not shown a direct connection between the harm she suffered and Paroline’s possession of images of her abuse. The district court agreed, finding it could not determine how much of her loss was directly caused by Paroline, and denied Amy’s restitution request.

The government reversed course on appeal and joined Paroline’s argument that the victim must show “proximate cause” to obtain restitution. The U.S. Department of Justice’s position was “that we need to be able to prove proximate cause of the harm,” said Camille Sparks, an Assistant U.S. Attorney for the Northern District of Texas and coordinator of Project Safe Childhood. “It’s not an impossible burden,” she noted, “but it’s a hard burden.”

On October 1, 2012, the Fifth Circuit Court of Appeals, in an en banc decision, rejected the arguments of Paroline and the Department of Justice, concluding that it is unnecessary to show a direct connection between the victim’s harm and the possession of images of that harm. See: Paroline v. Amy Unknown, 697 F.3d 306 (5th Cir. 2012).

However, the Court of Appeals subsequently granted a petition for rehearing en banc, consolidated Paroline’s case with an appeal raising similar issues in a Louisiana federal prosecution, and issued another decision on November 19, 2012 that vacated its prior ruling.

Amy’s attorney had argued that as a matter of grammatical construction, the “proximate cause” requirement of § 2259(b)(3)(F) was only applicable to “any other losses suffered by the victim” and not to the enumerated categories of losses specified in § 2259, such as medical and mental health care, lost income and attorneys’ fees.

Parsing the language of the statute, the Fifth Circuit agreed, holding “that § 2259 only imposes a proximate result requirement in § 2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendant’s restitution obligations for the categories” of enumerated losses in § 2259(b)(3)(A) through (E).

“Accordingly, we hold that § 2259 requires a district court to engage in a two-step inquiry to award restitution where it determines that § 2259 applies. First, the district court must determine whether a person seeking restitution is a crime victim under § 2259.... Second, the district court must ascertain the full amount of the victim’s losses as defined under § 2259(b)(3)(A)-(F), limiting only § 2259(b)(3)(F) [“any other losses”] by the proximate result language contained in that subsection....”

The Court of Appeals concluded, “we reject the approach of our sister circuits and hold that § 2259 imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse.” Accordingly, the district court’s judgment in Paroline’s case was vacated and remanded. See: In re: Amy Unknown, 701 F.3d 749 (5th Cir. 2012), cert. granted.

On June 27, 2013, the Supreme Court granted certiorari as to the following question: “What, if any, causal relationship or nexus between the defendant’s conduct and the victim’s harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. § 2259?”

The Supreme Court’s interest in this issue is likely due to a circuit split: Both the Second and Ninth Circuits have held that child pornography victims are not able to recover restitution in cases where a defendant’s actions were not a proximate cause of their injuries. See: United States v. Aumais, 656 F.3d 147 (2d Cir. 2011) and United States v. Kennedy, 643 F.3d 1251 (9th Cir. 2011) [PLN, Oct. 2011, p.26]. The Fourth Circuit reached a similar conclusion in United States v. Burgess, 684 F.3d 445 (4th Cir. 2012), as did the D.C. Circuit. See: United States v. Monzel, 641 F.3d 528 (D.C. Cir. 2011), cert. denied.

The case remains pending before the Supreme Court.

Additional source: Dallas Morning News

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