Law & Order: Special Victims Unit, now in its 26th season on NBC, is known for tackling sensitive contemporary criminal justice issues. The episode titled “Downloaded Child,” which aired on April 2, 2014, not only fit that description, but was based on a real-life case in which detectives investigating a mother for alleged child endangerment discovered that she had been sexually abused as a child and that pictures and videos of her abuse were circulating widely among pedophiles.

James R. Marsh, who co-authored this Legal Memorandum, inspired that Law & Order episode and has represented victims for decades. One of them is “Amy” (a pseudonym), on whose experience the Law & Order episode was based and who brought her struggle to obtain restitution all the way to the Supreme Court of the United States. In fact, the Supreme Court announced its decision in that case, Paroline v. United States,REF just days after the episode aired. The other co-author of this Legal Memorandum, Thomas Jipping, served as Chief Counsel to Senator Orrin Hatch (R–UT) when, reacting to Paroline, Hatch introduced legislation, named after Amy and two other victims, to make the provision of restitution to victims of child pornography more reliable and easier to obtain.REF President Donald Trump signed that legislation into law on December 7, 2018.

With President Trump again in office and the U.S. Department of Justice (DOJ) under new leadership, this is a good time to evaluate the vital task of providing restitution for victims of this insidious and complex crime. This Legal Memorandum explains the unique nature of child pornography and how it impacts victims and highlights ways in which it has not been taken as seriously as it should be. It then examines how Paroline’s misguided interpretation of the existing restitution statute actually made obtaining restitution more complicated and arbitrary. Finally, it explains how the legislative response to Paroline has improved the provision of restitution for victims and suggests additional steps that should be taken to address this scourge more seriously and effectively.

The Unique Nature of Child Pornography

Federal law defines child pornography—a horrific crime—as “any visual depiction” of “a minor engaging in sexually explicit conduct”REF and provides robust prison sentences for those convicted of producing,REF distributing,REF or possessingREF it. Federal law gives victims of crime the right to “full and timely restitution as provided by law” and requires those convicted of child pornography crimes to pay restitution for “the full amount of the victim’s losses.”REF Taking child pornography seriously requires enacting and vigorously enforcing strong laws and providing meaningful restitution, all based on an accurate understanding of the unique nature of these crimes and how they impact victims.

Senator Hatch sometimes quoted the axiom “ending in the right place requires starting in the right place,”REF and it certainly applies here. Sound policy, effective enforcement, and meaningful victim assistance all depend on how we understand child pornography and its impact on victims. That understanding begins with vocabulary.

This Legal Memorandum uses the term “child pornography” because it remains enshrined in federal statutes and court decisions. However, we believe that it “carries misleading connotations”REF that contribute to a “fundamental misunderstanding of the crime.”REF The word “child,” for example, can appear to be simply an adjective, distinguishing this material from other sexually explicit images only in the characteristics of the depicted individuals. Even worse, the word “pornography” suggests that these crimes involve nothing more than depictions.

Terms like these inadequately capture and may even obscure the reality that all child pornography crimes are “a form of child sexual exploitation.”REF Many advocates prefer more descriptively accurate phrases such as “child sexual abuse material.”REF The Justice Department explains that this phrase “better reflects the abuse that is depicted in the images and videos and the resulting trauma to the child.”REF

Child pornography crimes are both “intrinsically related to the sexual abuse of children”REF in general and “inextricably linked”REF together in a “vast criminal machinery.”REF Production creates a “permanent record of the children’s participation, and the harm to the child is exacerbated by [the] circulation”REF of that record. Together, they fuel the “market for the exploitative use of children.”REF

Although child pornography crimes have this in common, they impact victims differently. It is natural to think of crimes as concrete acts by identifiable defendants that harm particular victims in objective ways. The production of child pornography in which perpetrators record their rape or sexual assault of childrenREF might be seen that way. While production and “non-contact”REF child pornography crimes such as distribution and possession are part of the same overall exploitative enterprise, however, they inflict their own unique kind of harm on victims. Failure to grasp the difference contributes to “the misguided sentiment that possessors of child pornography cause little harm.”REF

The “initial production of the videos and other images of their sexual abuse is only the beginning of a lifetime of trauma”REF for victims. The U.S. Sentencing Commission explains that “[n]on-production child pornography offenses normalize and validate the sexual exploitation of children, which contributes to the sexual abuse of new victims.”REF In addition, “recurrent victimization through existence of images”REF causes child victims “continuing harm by haunting those children in future years.“REF One sentencing judge has put it this way: “[E]very time one of these web sites is opened and every time one of these images is viewed, additional harm is visited upon the victim”REF that is “separate from the harm of production.”REF

More than four decades ago, in New York v. Ferber,REF the Supreme Court recognized that trafficking in child pornography images fuels the sexual exploitation market. Four years later, the Attorney General’s Commission on Obscenity and Pornography addressed the “special horror”REF of child pornography, recognizing that “[w]hat is commonly referred to as ‘child pornography’ is not so much a form of pornography as it is a form of sexual exploitation of children.”REF The commission distinguished between the production of child pornography, which involves the “sexual abuse of a real child,” and the “trade in child pornography”REF images. This insight into the nature of child pornography was emerging well before the Internet became commercially available,REF at a time when child pornography consisted of physical objects such as “photographs and movies.”REF

Finally, the Internet has magnified the unique harm from non-contact child pornography crimes and has made calculating a victim’s losses from those crimes and imposing restitution for those losses more challenging. Convicting a defendant of child pornography production means that, at least for that victim, the initial sexual abuse and creation of a permanent record of that abuse have come to an end. The defendant is directly responsible for the losses that result from that crime.

Convicting a defendant of child pornography possession brings no such finality or closure. Instead, there is the virtual certainty that a potentially infinite number of people, most of whom will never be identified or prosecuted, will continue that victim’s exploitation by obtaining and continuing to circulate images of her abuse. Victims able to overcome the initial abuse may yet be haunted for their entire lives by the reality that they can never leave behind the ongoing use of that abuse and its record.

Amy’s case is a good example of how child pornography possession, separate from production, harms its victims.REF According to her therapist, Amy had gotten “back to normal” by the time her uncle was convicted of abusing her. Eight years later, however, she learned that “images of her abuse were being trafficked on the Internet.”REF The initial sexual abuse and production of the images may have ended, and the perpetrator jailed, but the receipt, collection, and distribution of those images by unknown consumers everywhere had only just begun.

The Supreme Court observed in Paroline that “[t]housands of images of Amy’s abuse [had] emerged in numerous child pornography cases”REF in only the previous several years. In fact, by 2014, the National Center for Missing and Exploited Children had received more than 70,000 images of Amy’s sexual abuse.REF The estimate for her future psychological counseling and lost income was nearly $3.4 million.REF “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,” Amy explained in a victim impact statement. “[T]he crime has never really stopped and will never really stop…. It’s like I am being abused over and over and over again.”REF

The restitution process itself ensures that this harm is not simply theoretical. The Justice Department notifies victims every time images of their abuse are identified in a distribution or possession prosecution to allow them to seek restitution.REF The Law & Order episode included a dramatic scene in which bins of such notices were stacked on a table, tangible evidence that the victim was in fact being abused over and over again. Each notification is a reminder that a potentially unlimited universe of perpetrators continues to drive this exploitative enterprise, deriving deviant sexual pleasure by witnessing the victim’s sexual abuse and using images of that abuse to fuel exploitation of other children.REF

In a 1996 report, the U.S. Sentencing Commission outlined ways that computers could be used to promote the distribution of child pornography.REF Today, the Internet is ubiquitous with more than two-thirds of the global population connected to the Internet and sexually explicit websites numbering in the millions. The ease and anonymity of obtaining and distributing all forms of pornography have vastly expanded the trafficking in images of child sexual abuse, fueling the demand for production of those images and magnifying the unique harm caused by these non-contact crimes.REF Already, a decade ago, researchers found that “[t]he child pornography market is one of the fastest growing businesses on the Internet.”REF According to the Justice Department:

The expansion of the Internet and advanced digital technology lies parallel to the explosion of the child pornography market. Child pornography images are readily available through virtually every Internet technology, including social networking websites, file-sharing sites, photo-sharing sites, gaming devices, and even mobile apps. Child pornography offenders can also connect on Internet forums and networks to share their interests, desires, and experiences abusing children, in addition to selling, sharing, and trading images.REF

In short, possession of child pornography is, at the same time, inextricably linked to production and distribution in the child sexual exploitation marketplace and imposes its own distinct form of ongoing harm on victims. How child pornography is trafficked today magnifies that harm, making more urgent the need to acquire a proper understanding of this harm and more serious the consequences of failing to do so.

Taking Child Pornography Less Than Seriously

Taking child pornography crimes, especially non-contact crimes such as possession, seriously requires that efforts to combat child pornography be informed by an accurate understanding of its unique nature and how it impacts victims. These efforts include legislative and regulatory policy, enforcement priorities, and the restitution process. Glaring failures to take child pornography seriously suggest that a proper and consistent understanding of the true nature of this insidious enterprise may still be elusive.

United States v. Knox. Stephen Knox was indicted in 1991 on two counts of receiving and possessing child pornography in the form of three videotapes of young girls in sexual poses with the camera spending “more than a substantial amount of time…focusing on [the area surrounding their genitals].”REF The statute prohibited knowingly receiving or distributing “any visual depiction…involv[ing] the use of a minor engaging in sexually explicit conduct,”REF defined as including the “lascivious exhibition of the…pubic area of any person.”REF

Knox moved to dismiss the indictment, arguing that the tapes did not depict sexually explicit conduct because the young girls were wearing “underwear or other abbreviated attire while they were being filmed.”REF The U.S. District Court denied the motion and convicted Knox. and the U.S. Court of Appeals for the Third Circuit affirmed. Based on the “language of the statute, its legislative history, the underlying rationale for the federal child pornography laws and relevant case law,” the appeals court held that “nude exposure…is not necessary for an exhibition to take place.”REF

President Bill Clinton, elected 19 days after the appeals court’s decision, appointed Drew S. Days III as Solicitor General on June 7, 1993, the same day the Supreme Court granted Knox’s motion to review the Third Circuit’s decision.REF Three months later, Days filed a brief informing the Supreme Court that the United States was changing its position in the case, siding with Knox rather than defending his conviction.REF Days argued for an even narrower construction of the statute than Knox had sought, requiring not only a “visible depiction…of the area of the body,” but also “a child lasciviously engaging in sexual conduct.”REF

Days’ construction required rewriting the statutory text in two ways. The statute prohibited depictions of “a minor engaging in sexually explicit conduct,” not “lasciviously engaging in sexual conduct.” It also defined the prohibited conduct as including a “lascivious exhibition,” not a “visible depiction.” Each of these textual departures narrowed the statute’s application. Nonetheless, the Supreme Court vacated the judgment against Knox and remanded the case to the Third Circuit “for further consideration in light of the position asserted by the Solicitor General.”REF On remand, the appeals court rejected the Clinton Administration’s interpretation, holding that “the federal child pornography statute, on its face, contains no nudity or discernibility requirement” and that “non-nude visual depictions…can qualify as lascivious exhibitions.”REF The court reaffirmed Knox’s conviction.

Declining to defend a conviction on appeal is unusual in any case, but doing so after an appeals court has already affirmed that conviction is even more bizarre; predictably, the Clinton Administration’s move sparked a political firestorm. On October 20, 1993, shortly after Days filed his change-of-position brief with the Supreme Court, Representative Chris Smith (R–NJ) introduced House Resolution 281 declaring the “sense of the House of Representatives that the Department of Justice repudiate its reinterpretation of Federal child pornography laws, defend the conviction won in lower courts in the Knox case, and vigorously prosecute sexual exploitation of children.”REF

Although it took just a month for a majority of House Members to co-sponsor the Smith resolution, a House Judiciary subcommittee refused to take action, and Smith took two steps to push his resolution forward. First, he filed a discharge petitionREF which, if signed by a majority of House Members, would bring the resolution directly before the full House.REF Second, Smith offered the resolution language as an amendment to a comprehensive crime bill, and Senator Charles Grassley (R–IA) did the same on the Senate side.REF The House voted 425–3 for the Smith amendment,REF and the Senate voted 100–0 for Grassley’s parallel language,REF which remains in the law today.REF

United States v. Hillie. Judicial misapprehension of child pornography, however, has not disappeared. In United States v. Hillie,REF for example, the U.S. Court of Appeals for the D.C. Circuit narrowed, as the district court in Knox attempted to do, the interpretation of what constitutes “sexually explicit conduct” under federal child pornography statutes.

Charles Hillie had been convicted of multiple crimes including sexual exploitation of a minor,REF possession of child pornography,REF and child sexual abuse offenses under District of Columbia law. The charges stemmed from videos Hillie secretly recorded using hidden cameras placed in the bedrooms and bathrooms used by his girlfriend’s daughters. The footage showed the minors in various states of undress, engaging in routine activities such as bathing and using the toilet. Hillie appealed his 354-month prison sentence, arguing that the videos did not depict “sexually explicit conduct.”

As it was in Knox, the central issue in Hillie was whether the videos constituted a “lascivious exhibition of the genitals or pubic area.” The government relied on factors first articulated in United States v. DostREF that help to implement Congress’s intent, stated in its 1984 amendments to the child pornography statute, to “broaden the scope” of existing laws.REF The appeals court’s approach indicated an appreciation that child pornography is inherently different from other sexually explicit material and should be treated as such.

The court, for example, emphasized that what “constitutes a ‘lascivious exhibition’ of a child’s genitals will be different” from such an exhibition depicting an adult.REF Factors related to how the subject is depicted, for example, are more relevant in the former, and those related to the characteristics or behavior of the subject are more relevant in the latter. To determine whether a visual depiction of a minor constitutes a “lascivious exhibition,” courts should therefore consider such factors as the “focal point” and setting of the depiction, whether the child’s pose or attire is age-appropriate, and whether the depiction appears to be “intended or designed to elicit a sexual response in the viewer.”REF

Writing for the majority in Hillie, however, Judge Robert L. Wilkins appeared to hold that the criteria for determining whether depictions are sexually explicit must be the same for children as they are for adults. While the district court in Dost sought to apply the statutory language on a “case-by-case basis,”REF the D.C. Circuit in Hillie appeared to hold that the same factors apply in the same way to every case regardless of context. As a result, the court concluded that “no rational trier of fact could find the girl’s conduct depicted in the videos to be a ‘lascivious exhibition’” under the statute.REF This decision aligns with others seeking to limit the application of child pornography statutes.REF

Judge Karen LeCraft Henderson’s dissent, on the other hand, reflected a better understanding of the nature of child pornography and the way that federal law is directed at protecting minors from sexual exploitation. She defended the six-part Dost test, maintaining that it provides a flexible, context-sensitive guide on which courts should still rely. Rather than a rigid formula or a single standard that ignores context, these factors allow jurors and judges to navigate the inherently subjective nature of these cases. To that end, Henderson underscored the importance of visual context and creator intent. She pointed to the clandestine nature of Hillie’s recordings and the private settings in which they were made as strong indicators of exploitative intent. For Henderson, rather than being ancillary, these contextual clues were central to understanding the harm Congress sought to prevent.

Henderson’s dissent serves as a powerful reminder of the judiciary’s role in balancing deference to juries with fidelity to statutory text. It reflects a judicial philosophy that prioritizes the protection of vulnerable populations while cautioning against judicial overreach. Her dissent in Hillie is a thoughtful, principled contribution to the ongoing debate over how best to interpret and apply child exploitation laws in the digital age.

Weak Child Pornography Sentences. Congress first made the production and distribution of child pornography a federal crime in the Protection of Children Against Sexual Exploitation Act of 1977REF and created the U.S. Sentencing Commission in 1984.REF The commission’s guidelines provide sentence range recommendations that incorporate an offense's seriousness and the offender’s criminal history. The first set of guidelines, promulgated in 1987, provided sentence ranges for those convicted of production, transport, distribution, and receipt of child pornography.REF

A 1990 Sentencing Commission staff report found that sentences departing from the guideline recommendation for trafficking in child pornography images were “almost evenly split between sentences above and below the guideline range.”REF By 1996, however, downward departures exceeded upward departures by a three-to-one ratio.REF In 2005, the Supreme Court held in United States v. BookerREF that because application of the sentencing guidelines may result in sentences based on facts not proven beyond a reasonable doubt, the Sixth Amendment requires that the guidelines be discretionary rather than mandatory. In a 2009 report, the Sentencing Commission documented “a high and increasing rate of downward departures and below-guidance variances”REF in sentencing for all child pornography crimes.

Three years later, the commission reported that “defendants sentenced under the non-production child pornography guidelines have received sentences outside of the applicable guideline ranges more frequently than defendants in all other major types of federal criminal cases.”REF Between 2004 and 2011, the percentage of offenders receiving sentences within the recommended range declined from 83 percent to 33 percent. The shift was almost entirely downward; the percentage receiving below-guidelines sentences increased from 9 percent to 48 percent during the same period.REF The commission’s 2012 report speculated that Booker contributed to this trend by making the guidelines “effectively advisory.”REF

The same trend continued over the next decade. Another Sentencing Commission report found that by 2019, the percentage of defendants sentenced within the recommended range for non-production child pornography crimes had fallen to 30 percent and that nearly all departures from that range were in a downward direction.REF

This problem became an issue during the March 2022 confirmation hearing for Supreme Court Justice Ketanji Brown Jackson. Data introduced during the hearing showed that, while serving as a U.S. District Judge between March 2013 and June 2021, Jackson had sentenced child pornography defendants below the recommended range in every case that she handled across all three categories: production, distribution, and possession.REF Her sentences were 34 percent lower for all child pornography crimes, 47 percent lower for distribution, and 57 percent lower for possession compared to U.S. District Court judges across the country.REF

The Sentencing Commission’s 2021 report speculated that the downward sentencing trend “indicated that courts increasingly believed the sentencing scheme for [non-production] offenders was overly severe.”REF This is another way of saying that judges increasingly believe that trafficking in child pornography and, certainly, its possession are less serious than the recommended sentence ranges indicated.

Department of Justice Failures. Senator Hatch introduced S. 151, the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act,REF in January 2003, and President George W. Bush signed it into law a few months later. Citing Ferber, the act’s findings noted that child pornography is not protected by the First AmendmentREF and that the government “has a compelling interest in protecting children from those who sexually exploit them, including both child molesters and child pornographers”REF and, therefore, a “compelling interest in ensuring that the criminal prohibitions against child pornography remain enforceable and effective.”REF

Five years later, Congress enacted the PROTECT Our Children Act,REF directing the Attorney General to “create and implement a National Strategy for Child Exploitation Prevention and Interdiction”REF and specifying subjects that the report must address. These subjects include comprehensive long-range goals for reducing child sexual exploitation as well as annual measurable objectives and targets.REF The act required the Attorney General to submit the initial strategy to Congress no later than October 13, 2009, and an updated strategy every two years thereafter.REF Attorneys General of both parties have failed to do what Congress required.

Attorney General Eric Holder submitted the first strategy in August 2010,REF 10 months late, and failed to do so altogether in 2011. After a report that year from the Government Accountability Office (GAO)REF found that the department had not implemented several provisions of the PROTECT Act, the department agreed to do so but failed to establish a time frame for completing those remaining required actions.REF Holder again failed to submit the strategy to Congress in 2013; Attorney General Loretta Lynch submitted the strategy in April 2016,REF six months late; Attorney General Jeff Sessions failed to do so in 2017; Attorney General William Barr failed to do so in 2019; and Attorney General Merrick Garland failed to do so in 2021.REF

In a 2022 report, the GAO documented the department’s poor record more fully, observing that its failure to meet the PROTECT Act’s requirements was “due in part to it not making the strategy a priority.”REF For example:

• “[A]lthough required by law, the department did not designate a senior management official to lead the strategy’s development. Instead, DOJ rotated detailees through the position of national coordinator, and nine national coordinator detailees have held the position in the last 13 years.”REF
• The strategy submitted in 2016 “did not fully include 12 of the 19 required elements established in law.”REF
• “[T]he strategy is not up-to-date on key technology advances that are making it more difficult to catch perpetrators.”REF

The updated strategy Garland sent to Congress in June 2023REF was only the third since the 2008 PROTECT Act’s enactment and the only one submitted by the mandated deadline. The next strategy is due to be submitted to Congress by October 2025.

Restitution for Victims of Child Pornography

Taking child pornography, especially its possession, seriously requires that the language we use for it, as well as statutes, enforcement, and sentencing, be informed by an accurate and substantive understanding of the nature of this crime. That understanding is even more important as a guide to the process of providing restitution for victims.

Restitution is “compensation for loss paid by a criminal to a victim.”REF Congress has long emphasized the priority of restitution for victims of crime in general and victims of child pornography in particular. In its December 1982 report, the President’s Task Force on Victims of Crime recommended legislation mandating victim restitution.REF Two years later, Congress established the Crime Victims Fund by enacting the Victims of Crime Act,REF and in 1988, it established the Office for Victims of Crime within the Justice DepartmentREF to take over the fund’s administration. The Victims’ Rights and Restitution Act, enacted as part of the Crime Control Act of 1990, stated the sense of Congress that a victim of crime “should never be forced to endure again the emotional and physical consequences of the original crime.”REF

Against this backdrop, in 1994, Congress enacted the Violent Crime Control and Law Enforcement Act.REF It required that “the defendant pay to the victim…the full amount of the victim’s losses,”REF identifying five specific loss categories,REF and “any other losses suffered by the victim as a proximate result of the offense.”REF The restitution process has three primary steps: identifying defendants, calculating a victim’s total losses, and issuing restitution orders to those defendants.

Full restitution for victims of child pornography is not simply an abstract aspiration. Congress established this process so that victims would actually receive full restitution. To that end, the restitution process is relatively straightforward for child pornography production crimes. The real challenge is “calculating criminal restitution awards to victims of child pornography from a ‘non-contact’ defendant, someone convicted of possessing and perhaps distributing the victim’s pornographic images but who had no role in their creation.”REF Achieving Congress’s purpose of full restitution for victims of child pornography possession is possible only if the nature of that crime informs the restitution process.

Two principles, each drawn from tort law, represent contrasting approaches to quantifying a victim’s losses and imposing restitution orders to cover those losses. One approach, proximate cause, holds defendants responsible only for the losses that a victim can prove result specifically from that defendant’s conduct. As described above, this is consistent with the nature of child pornography production, in which particular identified perpetrators cause all of the harm from the initial abuse and its capture in images.

Proximate cause, however, is fundamentally at odds with the nature of non-contact child pornography crimes and the kind of harm they impose on victims. The harm, resulting losses, and the universe of perpetrators who cause them, most of whom will never be identified or prosecuted, are all inherently indivisible. This makes proving the specific portion of a victim’s losses caused only by an individual defendant’s discreet conduct all but impossible. By requiring proof of the unprovable, the proximate cause standard therefore severely limits restitution for victims like Amy and in many cases results in no restitution at all.

The second approach, aggregate causation, accommodates the different way that child pornography production and possession harm victims. This approach holds “each of the defendants jointly and severally liable for the indivisible injury”REF to the victim. To state the obvious, crimes are intentional acts; therefore, the most relevant tort principle to utilize in apportioning losses derives from intentional, rather than negligent, torts. That principle is aggregate causation.REF The Restatement (Third) of Torts explains that “[e]ach person who commits a tort that requires intent is jointly and severally liable for any indivisible injury legally caused by the tortious conduct.”REF

Amy spent years pursuing restitution from individual defendants who were convicted of possessing images of her sexual abuse. Time after time, a court would convict the defendant but deny restitution because Amy could not prove the specific amount of her losses caused only by that defendant’s conduct. In United States v. Kennedy,REF for example, a jury convicted the defendant of possessing and transporting images of Amy’s abuse.REF Based on aggregate causation, the government asked that Amy receive either full restitution from the defendant or, in the alternative, a specific amount per image. The district court acknowledged “some degree of causal connection between the victims’ losses and the defendant’s conduct”REF and awarded restitution on a per-image basis.

The Ninth Circuit reversed and vacated the district court’s restitution order. The court observed that the “statutory restitution schemes”REF in two statutes, the Victim and Witness Protection Act (VWPA)REF and Mandatory Victim Restitution Act (MVRA),REF require proof of proximate cause.REF The court looked no further than these statutes’ “similar restitutionary purpose” and incorporated the proximate cause standard wholesale into 18 U.S. Code Section 2259, but while these statutes and Section 2259 share such a general purpose, they do not have the same text.

The VWPA and MVRA define “victim” as “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered.”REF Section 2259, however, defines a “victim” as “the individual harmed as a result of a commission of a crime under this chapter.”REF These statutes, as the Ninth Circuit held, may “inform [the] analysis of the appropriate standard for awards of restitution under §2259.”REF That analysis, however, should have led the court to conclude that Section 2259 does not require proof of proximate cause for all losses.

The Supreme Court has held that when Congress uses particular language in one section of a statute but omits that language from another, “it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”REF The Court has applied the same principle to language in two closely related statutes.REF Therefore, including the “directly and proximately” language in the VWPA and MVRA but omitting it from Section 2259 is further evidence that the latter requires proving proximate cause not for all losses, but only for the catch-all category to which the “proximate result” language is attached. By focusing only on the statutes’ general purpose and ignoring their text, the Ninth Circuit effectively treated different crimes and different statutes as if they were the same.

Courts not only have used the proximate cause standard inappropriately to determine restitution in child pornography possession cases,REF but also have done so in different ways.REF In United States v. Rogers,REF for example, the Second Circuit affirmed a “small” restitution award to Vicky based on “amounts Vicky had received in other cases.”REF In United States v. Aumais,REF the same court affirmed a conviction for transporting and possessing images of Amy’s sexual abuse but denied restitution because the defendant’s possession “was not a substantial factor” (a term not found anywhere in the statutory text) in causing her loss.REF

Paroline v. United States. Amy’s attempt to seek restitution from Doyle Paroline, who pled guilty to possessing images of her sexual abuse, gave the Supreme Court an opportunity to address this confusion and ensure that the restitution process worked as Congress intended. Paroline pleaded guilty in January 2009 to possessing hundreds of child pornography images, including two depicting Amy’s abuse, and was sentenced to 24 months in prison.REF Amy sought an order of restitution against Paroline for the “full amount of [her] losses.”

The district court construed the reference to “proximate result” in the final catch-all loss category to apply also to the specific categories. As a result, the court limited any restitution from an individual defendant to “the amount of the victim’s losses proximately caused by [that] defendant’s conduct.”REF This standard required proving the amount of Amy’s losses “directly produced by Paroline that would not have occurred without his possession of her images.”REF Since Amy sought instead to recover all of her losses from Paroline, the district court denied any restitution.

The U.S. Court of Appeals for the Fifth Circuit reversed, concluding that “the district court clearly and indisputably erred in grafting a proximate causation requirement onto the [restitution statute].”REF That requirement, the court concluded, applies only to “the ‘catchall’ provision,”REF rather than to every loss category listed in Section 2259(b)(3).

The district and appeals court decisions in Paroline therefore represent the two approaches to calculating losses and imposing restitution. The Supreme Court sided with the district court over the Fifth Circuit, reading the restitution statute as requiring proof of proximate cause for any losses, thereby rendering the statute useless for victims of child pornography possession. Paroline’s conceptual and analytical flaws have been explored elsewhere,REF and we will point out a few that reflect a failure to fully appreciate the nature of the crime for which this defendant owed restitution.

First, aggregate causation comports better with the statute’s text. Congress could have applied a proximate cause requirement to both the specific and the catch-all loss categories; it did not do so.REF Senator Hatch led a bipartisan group of Senators who supported Section 2259 when it was enacted in filing an amicus brief defending the Fifth Circuit’s construction. They argued that “well-established canons of statutory interpretation” support the plain meaning of its text.REF For example, the “rule of the last antecedent” provides that “a limiting clause or phrase…should ordinarily be read as modifying only the noun or phrase that it immediately follows.”REF

In addition, the statute’s drafting history indicates that this result was intentional. The proximate cause language was attached to multiple loss categories in the original draft of this legislation. When it enacted the final statute, however, Congress abandoned that text and instead limited the requirement of showing proximate cause only to the final catch-all provision.

Second, the Supreme Court has consistently declined to construe statutes in a way that would “‘frustrate Congress’s manifest purpose.’”REF As the Court acknowledged in Paroline, Section 2259 “states a broad restitutionary purpose.”REF Imposing a proximate cause requirement on all of a child pornography possession victim’s losses would not only frustrate or inhibit that purpose in some way, but prevent achievement of that purpose altogether by ignoring the essential nature of the crime itself. The Supreme Court has also held that even the plain meaning of a statute may be rejected “if it would produce an ‘absurd result.’”REF The ultimate absurd result would be to conclude that Congress required “full and timely restitution,”REF mandated that a defendant must pay the “full amount of the victim’s losses,” and at the same time established a process that makes achievement of those objectives impossible.

Third, the Supreme Court has repeatedly applied the presumption that Congress is “thoroughly familiar” with relevant judicial decisions and “expect[s] its enactment [of legislation] to be interpreted in conformity with them.”REF In Miles v. Apex Marine Corp.,REF for example, the Court held unanimously that “[w]e assume that Congress is aware of existing law when it passes legislation.”REF Congress added child pornography possession to production and distribution as serious federal crimes before enacting the restitution statute that covers them all.

Congress was aware of the Supreme Court’s decision in Ferber that explained how all child pornography crimes amount to child sexual exploitation and that the production and trafficking of child pornography are inextricably linked as part of the overall market for such exploitation. Congress was aware of the well-documented work, such as that of the Attorney General’s Commission, on the nature and impact of non-contact child pornography crimes. As one federal appeals court observed, “Congress repeatedly has stressed the terrible harm child pornography inflicts on its victims, dating back to its first enactment of child pornography laws in 1977.”REF Moreover, just a few years before Congress enacted the restitution statute, the Supreme Court held in Osborne v. OhioREF that child pornography is not protected by the First Amendment and upheld a state law banning its possession. In other words, Congress enacted the restitution statute and made it applicable to the possession of child pornography with full knowledge of the nature of that crime.

In one of Paroline’s most baffling passages, the Supreme Court stated that:

[T]ort law teaches that alternative and less demanding causal standards are necessary in certain circumstances to vindicate the law’s purposes. It would be anomalous to turn away a person harmed by the combined acts of many wrongdoers simply because none of those wrongdoers alone caused the harm. And it would be nonsensical to adopt a rule whereby individuals hurt by the combined wrongful acts of many (and thus in many instances hurt more badly than otherwise) would have no redress, whereas individuals hurt by the acts of one person alone would have a remedy. Those are the principles that underlie the various aggregate causation tests the victim and the Government cite, and they are sound principles.REF

In child pornography possession cases, a victim’s losses clearly result from the “wrongful acts of many” rather than a single person. The Court acknowledged as much. On its face, this makes it, in the Court’s words, “anomalous” and “nonsensical” to utilize a standard “whereby individuals hurt by the combined wrongful acts of many…would have no redress.”REF The Court even acknowledged that “courts have departed from the but-for standard where circumstances warrant, especially where the combined conduct of multiple wrongdoers produces a bad outcome.”REF Individually, and especially together, the Supreme Court’s own considerations point inexorably in one direction: Courts should utilize aggregate causation rather than proximate cause to interpret and apply the restitution statute in child pornography possession cases.

Eight justices agreed that applying the proximate cause requirement to all of a victim’s losses would make restitution for victims of child pornography possession virtually impossible. Writing for the majority, Justice Anthony Kennedy conceded that:

It is not possible to prove that her losses would be less (and by how much) but for one possessor’s individual role in the large, loosely connected network through which her images circulate…. Nor is there a practical way to isolate some subset of the victim’s general losses that Paroline’s conduct alone would have been sufficient to cause.REF

The Court nonetheless required what it conceded was not possible, reading “other losses…suffered as a proximate result of the offense” to mean “all losses.”

Justice Sonia Sotomayor got it right when she observed in a dissenting opinion that “[t]he Court’s approach…cannot be reconciled with the law Congress enacted.” Specifically, “Congress mandated restitution for the full amount of the victim’s losses, and did so within the framework of settled tort law principles that treat defendants like Paroline jointly and severally liable for the indivisible consequences of their intentional, concerted conduct.”REF There is, she wrote, “every reason to think Congress intended § 2259 to incorporate aggregate causation. Whereas a [proximate cause] requirement would set § 2259’s ‘mandatory’ restitution command on a collision course with itself, the aggregate causation standard follows directly from the statute.”REF

After getting its interpretation of the existing statute wrong, the majority then offered a series of observations or suggestions about how district courts might proceed. These not only constituted gratuitous dicta, but were both confusing and circular. For example:

• The Court “rejected” aggregate causation as the basis for implementing the restitution statute yet maintained that it was still relevant “to determining the proper outcome in cases like this.”REF
• The Court said that it would be “anomalous” to say that “no restitution is appropriate in these circumstances”—the outcome in that very case—yet embraced a standard under which, as the Court itself conceded, “it is not possible to identify a discreet, readily definable incremental loss [that the defendant] caused.”REF
• The Court considered it “indisputable” that Paroline “was part of the overall phenomenon that caused [Amy’s] general losses”REF but rejected the standard that would treat him that way.
• The Court found “no doubt that Congress wanted victims to receive restitution for harms [from possession of child pornography]”REF yet insisted that Congress enacted the restitution statute with a standard that makes this result impossible.
• The Court said that while “Congress limited restitution to losses that are the ‘proximate result’ of the defendant’s offense…such causal language by no means requires but-for causation by its terms.”REF
• District courts “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” even where “it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry.”REF
• Restitution orders in child pornography possession cases should require neither a “severe” nor a “token or nominal amount.”REF
• District courts should use “discretion and sound judgment.”REF

These so-called Paroline factors, instead of proving to be helpful to lower courts, only added to the confusion. In United States v. Crisostomi,REF for example, Judge John McConnell described the factors as “virtually unknown and unknowable.” They are “at best difficult, and at worst impossible” to apply.REF Without any evidence, he assumed that the number of offenders already convicted for possessing Vicky’s images (500) might double and, on that basis alone, awarded her one one-thousandth (0.1%) of her total losses.REF The number of known offenders possessing Vicky’s images had risen to 830 by 2016 when the judge in United States v. MiltierREF also calculated restitution by first doubling that number. Instead of including the defendant in the total number of past and future cases as McConnell had done in Crisostomi, however, the judge in Miltier included the defendant only in the latter,REF an arbitrary change certain to grant the same victim, in a case with similar facts, a significantly different amount of restitution.

A House Judiciary subcommittee held a hearing in March 2015 on post-Paroline child exploitation restitution. Inexplicably, the Justice Department claimed that Paroline “significantly” improved “the department’s ability to obtain restitution orders” for victims of child pornography but made no distinction between cases involving production and those involving trafficking.REF Professor Jonathan Turley, by contrast, testified that “the guidelines given to lower courts are not very helpful. They are pretty opaque, in fact, as to what lower courts are supposed to do to find a figure of restitution.”REF

Turley was being charitable. One U.S. District Court judge described the post-Paroline situation this way: “[Section 2259] makes a court’s imposition of restitution mandatory, but it then demands the government to prove what in essence is unprovable: identifying, among the vast sea of child pornography defendants, how the conduct of a specific defendant occasioned a specific harm on a victim.”REF The result was “legal disagreements and wildly inconsistent restitution awards.”REF Another judge compared the task of calculating losses and imposing restitution after Paroline to “piloting a small craft to safe harbor in a Nor’easter.”REF

The U.S. Sentencing Commission’s Sourcebook of Federal Sentencing Statistics, published for each fiscal year, began to include child pornography as a primary offense category in fiscal year (FY) 2010.REF These reports include data on the percentage of offenders in each category ordered to pay a fine and/or restitution in any amount. In the five years prior to the Paroline decision, an average of 87.4 percent of child pornography offenders received no restitution order at all. That dismal average rose to 91.4 percent in the three years after Paroline, rendering inexplicable the Justice Department’s claim that Paroline “significantly improved” its ability to obtain restitution for victims.

Congress’s Response to Paroline. In Paroline, then, the Supreme Court held that a defendant may be held liable only for losses that can be directly attributed to his specific conduct, even in cases where those losses resulted from the inherently cumulative and diffuse harm caused by many. This left the legal landscape surrounding restitution for victims of child pornography even more confused than it was before Paroline. While attempting to balance fairness to defendants with justice for victims, the Court’s ruling made it even more difficult for survivors to obtain restitution.

This mismatch places a virtually insurmountable evidentiary burden on victims of child pornography possession crimes. To receive any restitution at all, victims must attempt the impossible: parsing out and attempting to quantify specific harms caused by an offender who is part of a network of perpetrators that, in addition to being vast and often anonymous, continues to change. The inevitable result was a patchwork of inconsistent awards after protracted and often useless litigation, often adding a sense of revictimization to the crime for which that process should provide restitution.

Paroline’s mistaken interpretation also creates a truly perverse irony: Wider circulation of a victim’s abuse images increases the indivisible harm and accompanying losses that she suffers but decreases the likelihood that any individual defendant will be held responsible for any divisible harm. Every perpetrator can thus contribute to the harm and get “lost in the crowd” to avoid being held accountable.REF

Senator Hatch introduced S. 295, the Amy and Vicky Child Pornography Victim Restitution Improvement Act, on January 28, 2015. It quickly gained 42 bipartisan co-sponsors, was endorsed by 43 state attorneys general, and was passed unanimously by the Senate only two weeks after its introduction. In its congressional findings and substantive provisions, the bill established methods for calculating a victim’s losses and determining restitution that reflected the inherent differences between child pornography production and trafficking crimes. The bill effectively overruled Paroline by defining “full amount of the victim’s losses” as including “any costs incurred by the victim” for the five specific loss categories and proximately caused costs only for the catch-all category.

Finally, S. 295 provided for defendants to seek contribution from others involved in “causing aggregated losses.”REF A defendant convicted of distributing child pornography, for example, could sue those from whom he obtained it or to whom he provided it. In Paroline, the Fifth Circuit explained that “[a]mong its virtues, joint and several liability shifts the chore of seeking contribution to the person who perpetrated the harm rather than its innocent recipient.”REF

As noted above, the Justice Department defended the Paroline decision and opposed utilizing the aggregate causation standard for restitution in any child pornography case. In fact, as Professor Paul Cassell told a House Judiciary subcommittee in May 2015, “the Department has been litigating against Amy and Vicky (and other victims) in the Supreme Court and elsewhere.”REF The Department opposed the Amy and Vicky Act in that hearing, insisting that “remov[ing]…the proximate causation element invites litigation without providing any attendant benefits.”REF

Despite evidence that the percentage of child pornography defendants escaping restitution altogether was increasing after Paroline,REF the Justice Department claimed that Paroline “significantly improved” its ability to obtain restitution.REF The department urged Congress not to change the operative causation standard and instead to “create an alternative system that allows victims of distribution and collection of child pornography to obtain some measure of restitution without enduring litigation.”REF

When Senator Hatch introduced the bill in November 2017, he added “Andy” to its title, recognizing a Utah resident whose images of sexual abuse had been identified in more than 800 child pornography cases.REF It marked a pivotal shift in statutory law by codifying a more victim-centered restitution model. Both the Senate and House passed it unanimously.REF

Many bills contain congressional findings, which are included when a law appears in the Statutes at Large compilation published by the Office of the Federal RegisterREF but not when a statute is codified in the United States Code. While congressional findings generally lack “independent legal effect,”REF both houses of Congress adopt them; therefore, they can be more useful than bits of pre-enactment legislative history.REF The new bill’s congressional findings focus squarely on the unique nature of child pornography crimes and how they impact victims, emphasizing that this understanding must inform the restitution process.REF Those findings, for example, state that:

• “The harms caused by child pornography begin, but do not end, with child sex assault because child pornography is a permanent record of that abuse and trafficking in those images compounds the harm to the child.”
• Child pornography production, distribution, and possession are “intertwined and each compound the harm suffered by the child-victim.”
• “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.”
• “It is the intent of Congress that victims of child pornography be compensated for the harms resulting from every perpetrator who contributes to their anguish. Such an aggregate causation standard reflects the nature of child pornography and the unique ways that it actually harms victims.”

The AVAA maintains the existing restitution process for victims of child pornography production, requiring a defendant to “pay the victim…the full amount of the victim’s losses.”REF The real change benefits victims of child pornography trafficking crimes by guaranteeing minimum restitution and providing an option for obtaining additional restitution without litigation.

Under the AVAA, every victim receives a minimum of $3,000 in restitution from each defendantREF up to, but not exceeding, the full amount of her losses. This means that victims with substantial demonstrable losses such as Amy, Vicky, and Andy have the option of collecting a series of these awards without running the risk—as Amy experienced many times—of a court’s denying restitution altogether. In addition, the AVAA provides two options for a child pornography possession victim to seek additional restitution. She may, as before, pursue further litigation against a defendant, which would require proving the amount “that reflects the defendant’s relative role in the causal process that underlies the victim’s losses.”REF

A victim can avoid litigation altogether by receiving a one-time payment from the Defined Monetary Assistance Victims Reserve, a novel mechanism created by the AVAA and funded by special assessments on convicted offenders.REF The Justice Department’s Office for Victims of Crime is responsible for the Reserve’s administration. The AVAA required the Attorney General to submit a report to Congress by December 2020 “on the progress of the Department of Justice in implementing [the AVAA]…include[ing] an assessment of the funding levels for the Child Pornography Victims Reserve.” The report has never been submitted.

Some have argued that a mandatory minimum restitution award violates the Sixth Amendment. The Supreme Court held in Apprendi v. New JerseyREF that “any facts that increased the prescribed range of penalties to which a criminal defendant is exposed”REF are elements of the crime and therefore “must be submitted to a jury, and proved beyond a reasonable doubt.”REF In United States v. Thomas,REF the defendant argued that imposition of the mandatory $3,000 minimum restitution award violated Apprendi. The Eleventh Circuit had previously held that Apprendi does not apply to restitutionREF and concluded here that, even if it did, “the facts that would trigger [the mandatory minimum restitution amount’s] applicability are the same facts necessary for a defendant to be found guilty beyond a reasonable doubt.”REF

In United States v. Caudillo,REF the Fifth Circuit similarly concluded that Apprendi does not apply to non-mandatory minimum restitution orders, restitution awarded under the Mandatory Victims Restitution Act of 1996, or cases in which “no statutory maximum applies to restitution” because “the restitution amount is equal to the victims’ loss.”REF

Data from the U.S. Sentencing Commission confirm that the AVAA is making a real difference for victims of child pornography crimes. As noted above,REF despite Congress’s promise that crime victims have “[t]he right to full and timely restitution,”REF an average of 87.4 percent of offenders were not required to pay any restitution during the five years prior to Paroline, a shocking figure that rose to 91.4 percent in the three years after the decision. That average, however, has plunged to 35 percent in the six years following the AVAA’s enactment. The amount of restitution ordered shows the same positive pattern. Adjusted for inflation,REF the average median restitution awarded to child pornography victims has jumped 165 percent since the AVAA’s enactment.

Before the AVAA, the only way child pornography victims could obtain the restitution that Congress promised was to confront one defendant at a time, relive the initial abuse, and repeatedly recount the ongoing harm. After all that, victims still ran the real risk of ending up with nothing. Under the AVAA, victims now have two ways to receive guaranteed restitution and therefore are not forced to roll the dice in litigation. For the first time, a federal law explicitly identifies the real nature of child pornography crimes and creates an approach to restitution that is responsive to how these crimes impact victims. This story is a testament to how our understanding of trauma can develop, the limitations of traditional causation doctrines in the digital age, and the power of law to adapt in the service of justice.

Taking Child Pornography More Seriously

The AVAA should not have been necessary because the Supreme Court in Paroline should have interpreted and applied the existing restitution statute consistent with its text and Congress’s restitutionary purpose. Nonetheless, the AVAA was an important step in refocusing the restitution process on that purpose. Congress and the Justice Department can now take additional steps to take child pornography more seriously.

Building on the AVAA. As described above, in light of the Justice Department’s opposition to the aggregate causation standard, the AVAA retained proximate cause as the standard for litigation to obtain restitution. Nonetheless, aggregate causation remains the approach that best reflects the nature of non-contact child pornography crimes and their impact on victims and would help those victims to come closer to the “full and timely restitution”REF that Congress promised. By unanimously passing the AVAA, Congress affirmed that, as stated in the bill’s findings, the aggregate causation standard “reflects the nature of child pornography and the unique ways that it actually harms victims.” Congress should therefore consider making aggregate causation the operative approach in seeking restitution from all child pornography defendants.

One of the Justice Department’s arguments against aggregate causation in 2015 was the potential for very large restitution awards to violate the Eighth Amendment’s prohibition on “excessive fines.”REF The Supreme Court mentioned this possibility in Paroline but conceded that the “primary goal of restitution is remedial or compensatory.”REF While fines are punitive, restitution is compensatory and therefore is not covered by the Excessive Fines Clause.REF This is especially true in the AVAA, which ties restitution expressly to demonstrated losses.

Additional improvements in the AVAA include indexing the $3,000 statutory minimum for inflation as it does for the lump sums available from the Victims Reserve. If that indexing had been included in the AVAA, the mandatory minimum award today would be almost $3,900.REF

Congress can also extend the AVAA to victims of child pornography production. Federal courts have confirmed what is apparent in federal statutes: that a conviction for child pornography production does not constitute a conviction for trafficking and therefore does not allow a court to award statutory minimum restitution.REF

Congress could also provide that, subject to court oversight, victims be allowed to utilize the same tools that the Department of Justice uses to collect restitution.REF Currently, a Financial Litigation Unit (FLU) is embedded within each U.S. Attorney’s Office and treats a restitution order as “a lien in favor of the United States on all property and rights to property of the person fined as if the liability were a tax assessed under the Internal Revenue Code.”REF The FLU therefore can automatically impose a lien upon entry of judgment, attach the lien to all of the defendant’s property and rights to property, and maintain the lien enforceable for 20 years or until the debt is satisfied or otherwise resolved.REF In addition, the FLU can levy wages, bank accounts, and other assets, including retirement accounts; garnish income streams; and seize and sell property subject to the lien.REF Although victims can reduce a restitution order to a civil judgment, the ability to collect on such a judgment under a myriad of state and federal laws is complicated and often ineffective.REF

The STOP CSAM Act. Congress should strongly consider passing the STOP CSAM Act, introduced in the 118th Congress as S. 1199 by Senator Dick Durbin (D–IL)REF and in the 119th Congress as S. 1829 by Senator Josh Hawley (R–MO).REF This bill would further improve the restitution process by defining “trafficking in child pornography” more comprehensively and allowing courts to appoint a trustee or other fiduciary to hold funds received in restitution in an account for the benefit of the victim. The bill would make it unlawful for companies that provide interactive computer services to intentionally host or store child pornography or knowingly facilitate a violation of the child pornography laws. It would also provide for victims to seek compensation in a more traditional way by suing companies that host child pornography online for damages.

Sentencing Guidelines. As described above, the Sentencing Guidelines are designed to reflect the seriousness of a crime and should be revised so they better reflect how child pornography crimes have evolved. Some factors that the Guidelines say enhance the severity of these crimes, such as the use of a computer, have become ubiquitous and occur in the vast majority of cases.

At the same time, the Sentencing Commission has identified factors that aggravate non-contact child pornography offenses that have yet to be incorporated into the Guidelines. For example, in FY 2019, more than 43 percent of non-production child pornography offenders participated in an online child pornography community, and nearly half engaged in aggravating sexual conduct before, or concurrently with, their non-contact offense.REF

Most concerning, when tracking 1,093 non-production child pornography offenders released from incarceration or placed on probation in 2015, 27.6 percent were rearrested within three years.REF The Sentencing Guidelines need to account for this high recidivism risk along with factors that reflect a propensity to engage in significant aggravating sexual conduct against children.

The Attorney General.First, the Attorney General must fulfill the statutory obligation of submitting an updated national strategy to combat child sexual exploitation, which is due in October 2025. This update must include, at a minimum, the 19 elements required by the PROTECT Our Children Act and provide robust and up-to-date analysis of technological issues.REF

Second, the Attorney General must submit the report—which was due nearly three years ago—required by the AVAA on the Justice Department’s implementation of the law and the Child Pornography Victim’s Reserve funding levels.

Third, the Attorney General must address the factors that led the GAO to conclude in 2022 that combatting child sexual exploitation was simply not a Justice Department priority.REF

Improving the Collection of Restitution. Another crucial problem is the Justice Department’s inability to effectively collect court-ordered restitution. In February 2018, the GAO issued a report reviewing the department’s efforts to collect court-ordered restitution from federal criminal offenders between FY 2014 and FY 2016.REF Among the GAO’s key findings was that, although judges ordered $33.9 billion in restitution during the review period, there was a backlog of $110 billion outstanding, $100 billion of which was deemed uncollectible because of the offenders’ inability to pay. In addition, although DOJ had tools to monitor collections, it lacked performance measures or goals to assess how effective U.S. Attorney’s Offices were in collecting restitution.REF

Most concerning is that, in stark contrast to offenders convicted of crimes such as embezzlement (86 percent) and robbery (80 percent), only 27 percent of child pornography offenders were ordered to pay restitution.REF The percentage of child pornography offenders ordered to pay restitution was similar to restitution ordered for traffic violations and environmental, game, fish, and wildlife offenses.REF

Conclusion

Congress has promised “timely and full restitution” to crime victims and requires that child pornography defendants pay restitution for the “full amount of a victim’s losses.” Courts have used one of two approaches in this task. The first, proximate cause, ignores the inherent difference between child pornography production and trafficking; it is workable for the former but unworkable for the latter. The second, aggregate causation, is workable for all child pornography cases and should be the basis for the restitution process.

In its findings, the AVAA states what the Supreme Court in Paroline should have concluded: that the aggregate causation standard “reflects the nature of child pornography and the unique ways that it actually harms victims.”REF Grafting a proximate cause requirement onto the entire restitution process not only was unnecessary as a matter of statutory interpretation, but also made achieving Congress’s restitutionary purpose virtually impossible for victims of child pornography trafficking.

The AVAA was a “a major improvement for victims”REF even though it did not fully establish aggregate causation as the prevailing principle for imposing restitution. It significantly reduced the percentage of defendants who escaped without any restitution obligation and increased the amount of restitution that victims, especially in trafficking cases, actually receive. For victims with relatively modest calculated losses, the AVAA makes full restitution significantly more likely and gives all victims a way to receive restitution without the repeated trauma of defendant-by-defendant litigation. For victims that choose litigation, the AVAA gives them more tools in that pursuit than were previously available to them.

Looking ahead, both Congress and the Justice Department can and should take child pornography more seriously and further help victims. These include finally reconfiguring the restitution process to utilize the aggregate causation standard in all child pornography cases and enacting legislation that empowers victims to combat child pornography more comprehensively. In addition to enforcing the child pornography laws more consistently and vigorously, the Justice Department can show its commitment and support for victims by developing and implementing strategies for combatting child sexual exploitation and improving the mechanisms Congress has already created to help victims reclaim their lives.

Thomas Jipping is a Senior Legal Fellow in the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. James R. Marsh is the Founding Partner of the Marsh Law Firm.