How much restitution should be imposed for the possession of child pornography?  The federal mandatory restitution statute, 18 U.S.C.§ 2259, appears to have the answer. It states that a defendant shall pay a victim of child pornography the full amount of the victim’s losses, which is  defined as follows:

For purposes of this subsection, the term “full amount of the victim’s losses” includes any costs incurred by the victim for

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

(B) physical and occupational therapy or rehabilitation;

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

(D) lost income;

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

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

18 U.S.C.§ 2259(b)(3).

But how should this very generic formula be applied? Under § 2259, a victim is defined as someone who suffered specified harm “as a result of” another’s unlawful conduct.  In other words, the wrongdoer’s harm must have caused the victim’s losses and therefore the wrongdoer is liable for the losses.  Causation becomes an issue where one individual is in possession of photographs depicting abuse and thousands of other anonymous people have access to the same photographs.  Obviously, the victim can be harmed by the fact that everyone has viewed the child pornography.  Therefore who should be on the hook for the full amount of the victim’s losses?

On April 23, 2014, the United States Supreme Court decided this issue in Paroline v. United States,          U.S.                 (2014). In that case, Mr. Paroline was convicted of possessing 280 explicit photographs of an underage girl who was referred to as “Amy.” The photographs depicting the abuse had been viewed several thousand times by others throughout the world.  The question was should the damages be assessed solely against Paroline; against everyone who viewed the images; or some combination of the two.  During oral argument, the Justices were skeptical that a reasonable formula could be reached to balance all the factors involved.

Writing for the majority, Justice Kennedy held that it was unfair to assess damages against the defendant that did not proximately stem from the injury, i.e. were not the proximate cause. The court was concerned about the remote nature of damages stemming from viewing images which the viewer had no role in producing. Nevertheless, the court did say that the trial judge could take restitution into account in assessing some level of damages, but again, proximate cause would have to be shown.

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