Child Porn User Given a Break on Restitution

WASHINGTON (CN) - The government suffered a blow from the Supreme Court on Wednesday in its bid to get restitution for victims of child pornography.

In the underlying case, Doyle Paroline pleaded guilty to possessing 150 to 300 images of minors engaged in sexually explicit conduct.

At least two images were of girl described in the court record as "Amy," whose uncle sexually abused her, filmed his acts and shared them with others.

The National Center for Missing and Exploited Children has reported finding at least 35,000 images of Amy's abuse among the evidence in more than 3,200 child pornography cases since 1998. It describes the content of these images as "extremely graphic."

Prosecutors joined Amy, who is now a young adult, in seeking restitution from Paroline under Section 2259, a component of the Violence Against Women Act of 1994. A psychiatrist who treats Amy itemized her future damages for specific categories of treatment and estimated total damages nearing $3.4 million.

The government reports that restitution has been ordered for Amy in at least 174 child pornography cases across the United States in amounts ranging from $100 to $3,543,471.

A federal judge in Texas denied Amy restitution, however, after finding that the government failed to prove that Paroline's possession of images depicting Amy's sexual abuse "proximately caused the injuries" for which Amy sought restitution.

Though the en banc 5th Circuit reversed in November 2012, the Supreme Court vacated that ruling, 5-4, Wednesday, nine months after it took up the case.

At issue is the government's showing, for the purposes of Section 2259, of a causal relationship between the defendant's conduct and the victim's losses, according to the ruling.

"Reading the statute to impose a general proximate­ cause limitation accords with common sense," Justice Anthony Kennedy wrote for the majority. "As noted above, proximate cause forecloses liability in situations where the causal link between conduct and result is so attenuated that the so-called consequence is more akin to mere fortuity."

Here it is difficult to calculate what portion of the losses Amy has incurred "are the proximate result of the offense conduct of a particular defendant who is one of thousands who have possessed and will in the future possess the victim's images but who has no other connection to the victim," Kennedy added.

"Even without Paroline's offense, thousands would have viewed and would in the future view the victim's images, so it cannot be shown that her trauma and attendant losses would have been any different but for Paroline's offense," the 26-page opinion states. "That is especially so given the parties' stipulation that the victim had no knowledge of Paroline."

Kennedy also emphasized that Paroline possessed just two images of Amy, which surely is "not sufficient to cause her entire losses from the ongoing trade in her images."

The majority rejected Amy's attempt to liken her case to one in which a person is collectively beaten by a "gang of ruffians," or in which a woman is "gang raped by five men on one night or by five men on five sequential nights."

"First, this case does not involve a set of wrongdoers acting in concert, for Paroline had no contact with the overwhelming majority of the offenders for whose actions the victim would hold him accountable," Kennedy wrote. "Second, adopting the victim's approach would make an individual possessor liable for the combined consequences of the acts of not just 2, 5, or even 100 independently acting offenders; but instead, a number that may reach into the tens of thousands."

This is not to say that Paroline should not have to make any restitution, the majority clarified.

Rather, "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," Kennedy wrote. "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."

To calculate restitution, the majority offered "guideposts" for courts to consider, such as how many images of the victim the defendant possessed.

"The result­ing amount fixed by the court would be deemed the amount of the victim's general losses that were the 'prox­imate result of the offense' for purposes of §2259, and thus the 'full amount' of such losses that should be awarded," Kennedy wrote. "The court could then set an appropriate payment schedule in consideration of the defendant's financial means."

Justices Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito and Elena Kagan joined Kennedy's opinion.

Justices Antonin Scalia and Clarence Thomas meanwhile joined a dissent penned by Chief Justice John Roberts, which blames Congress for making it "impossible" to award Amy the relief she is due.

"The court's decision today means that Amy will not go home with nothing," Roberts wrote. "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."

Justice Sonia Sotomayor dissented separately, writing that she would affirm the ruling that requires a restitution order reflecting the full amount of Amy's losses.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit