The Need for Improving Restitution for Victims of Child Pornography Crimes after Paroline v. US

Posted on March 19, 2015, in Child Pornography, Pornography Laws, Research

Publication Information

Title: The Need for Improving Restitution for Victims of Child Pornography Crimes after Paroline v. US
Publication: Testimony before House Judiciary Committee Subcommittee on Crime
Author: Paul G. Cassell
Date: 03/19/2015

Testimony before House Judiciary Committee Subcommittee on Crime:

Mr. Chairman and Distinguished Members of the Subcommittee:
I am pleased to submit testimony in support of expanded restitution for victims of child pornography crimes, particularly as provided in Senate Bill 295.

How to provide restitution to victims of child pornography crimes has recently proven to be a challenge for courts across the country. The difficulty stems from the fact that child pornography is often widely disseminated to countless thousands of criminals who have a prurient interest in such materials. While the victims of child pornography crimes often have significant financial losses from the crimes (such as the need for long term psychological counseling), it is very difficult to assign a particular fraction of a victim’s losses to any particular criminal defendant.

Last Spring, the United States Supreme Court gave its answer on this issue with its ruling in Paroline v. United States.1 Interpreting a restitution statute enacted by Congress, the Court concluded that in a child pornography prosecution, a restitution award from a particular defendant is only appropriate to the extent that it reflects “the defendant’s relative role in the causal process that underlies the victim’s general losses.”2 Exactly what that holding means is not immediately clear, and lower courts are currently struggling to interpret the Supreme Court’s ruling.

In my testimony today, I question the Paroline holding and particularly its failure to offer any real guidance on exactly what amount of restitution district court judges should be awarding victims in child pornography cases. Members of Congress, too, have doubted the wisdom of the decision, introducing a bill – the Amy and Vicky Act or “AVA” for short – with strong bi-partisan support. The AVA would essentially void the Paroline decision by reworking the restitution statute. The AVA provides certain set amounts of restitution for particular child pornography crimes. This approach is a proper because it will provide clarity to district court judges as well as assuring full restitution for child pornography victims. It is my hope that the House will adopt this approach. It may be relevant to note that the Senate has seen the wisdom of such an approach, as it recently passed the AVA by a resounding 98-0 vote.

Part I of this testimony discusses child pornography victims’ need for restitution, using the story of one woman (“Amy”) as an illustration.

Part II turns to the legal regime surrounding restitution for such victims, explaining why the current child pornography restitution statute – properly understood – requires that each defendant pay full restitution – as Amy argued to the Supreme Court.

Part III then recounts the Supreme Court’s 5-4 decision in Paroline, noting that several justices wrote opinions calling for additional congressional action to provide both clarity and full compensation to crime victims.

Part IV critiques the Paroline decision. I will argue, contrary to the views of the Court’s narrow majority, that child pornography restitution awards should not be limited to a defendant’s “relative role in the causal process” of harming victims. To the contrary, this interpretation thwarts Congress’ clear aim of providing generous restitution to child pornography victims.

Part V discusses the Amy and Vicky Act, which would simplify the restitution process. By establishing set restitution amounts that district courts would award in child pornography cases, the legislation would return rationality to the restitution system, reduce the burden on trial courts, and most important assure victims of child pornography crimes that they will receive the full restitution that they desperately need. Congress should rapidly enact, and the President should sign, such legislation.

Finally, Part VI discusses some other complementary changes that Congress could make to other bodies of law to help protect crime victims. First, Congress should provide appropriations for legal clinics to help crime victims protect their rights in court. Second, Congress should create a supplemental compensation fund for victims of child pornography crimes. Third, Congress should amend the Crime Victims’ Rights Act to assure full appellate review of victims’ claims. And fourth, Congress should pass a constitutional amendment protecting victims’ rights.




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