In recent years people who were victimized as children by child pornography have turned to the Violence Against Women Act of 1994 (“VAWA”), codified in 18 U.S.C. § 2259, to apply for and receive restitution from defendants convicted of possessing their child pornographic images.


§ 2259 is a remedial statute that contains specific categories of compensable losses. The statute is mandatory, imposing a duty on a federal sentencing judge to order any defendant convicted of a child abuse-related offense to pay restitution to the victim(s) of that offense. A restitution order is required even if the defendant’s deprived economic circumstances make payment impossible, and even if the victim has received compensation from some other source, such as a civil judgment. The statute’s categories for which compensable losses may be assessed are:


• “Medical services relating to physical, psychiatric, or psychological care” for the victim;
• “Physical and occupational therapy or rehabilitation” for the victim;
• “Attorney fees, as well as other costs incurred” by the victim; and
• “Any other losses suffered by the victim as a proximate result of the offense.”


The Federal circuits have taken widely divergent views on how restitution can be obtained under the statute. For example, the Fifth and Second Circuits adopted remarkably similar views that the mere possession of child pornography established harm sufficient to warrant § 2259 restitution while the Sixth Circuit adopted the view that it had to be shown that possession was not only the “cause-in-fact” of the victim’s harm but the harm had to be “reasonably foreseeable.” Put simply, the Sixth Circuit said a child pornography defendant is only liable for the costs of a victim’s harms “clearly traceable” to him.


On April 23, 2014, the U.S. Supreme Court in Paroline v. United States—a case originating out of the Fifth Circuit—somewhat settled this dispute among the circuits as to how restitution should be administered under § 2259. Writing for SCOTUSblog, Lyle Denniston summed up the court’s decision with this opening paragraph:


“Each individual – among hundreds and maybe thousands – found guilty of keeping and looking at images of a child being abused must pay the victim something more than a ‘trivial’ sum, but none of them can be required to pay for all that the victim has lost …”


The court’s 5-4 decision, however, did not provide the lower courts with a specific formula on how to assess harm/blame. Denniston pointed out the decision simply instructs Federal district court judges to “do their best,” providing them with a few “starting points.”


The victim in the Paroline case was called “Amy” in her pornographic images. Her attorneys calculated that she suffered $3.4 million dollars in harm. They said that while Doyle Randall Paroline possessed only two of Amy images, he should be held liable for the full amount of her damages because his possession.


“contributed” to her ongoing harm. Justice Sonia Sotomayor was the only justice who agreed with this “full restitution” position. Three justices—Roberts, Scalia, and Thomas—said Amy was not entitled to any damages because Congress failed to provide a “mechanism” or a formula for assessing harm. Writing for the majority, Justice Kennedy—joined by Alito, Breyer, Ginsburg and Kagan—split the blanket, saying each defendant convicted of possessing Amy’s image should be assessed blame based on the harm caused, although providing “no mathematical formula” for making the difficult harm determinations.


While the Supreme Court expressed confidence in the district court judges’ abilities to work out a reasonable formula, Denniston explained the guidance the court offered in its decision:


“First, there must be a conviction, which would establish that the individual in question possessed images of the victim. Then, turning to restitution, there would have to be proof that ‘a victim has outstanding losses caused by the continuing traffic in the images,’ with such losses to potentially include items such as those listed in the federal law: medical services, physical and occupational therapy, transportation, temporary housing, child care, lost income, and attorneys’ fees and court costs.


“Next, the judge can take into account a variety of factors on ‘relative cause’ for each individual convicted: the number of past individuals who contributed to the victim’s losses; a prediction about the number of future individuals who might be found to have contributed; estimates of the number of individuals facing restitution in a specific case made more copies and handed them out; whether that individual had any role in producing the pictures in the first place; how many images that individual possessed; and ‘other facts relevant to the [convicted individual’s] relative causal role.’


The preliminary problem we see with the court’s decision is that sentencing hearings will become mini-trials focused solely on the issue of restitution. The Government will bear the burden of showing a “casual link” between a defendant’s possession and the victim’s claimed harm. The defense will certainly have an opportunity to rebut a victim’s claimed harm and resulting damages; specifically, the amount that can be attributed to an individual defendant.


Finding a fair and appropriate “mathematical formula” to decide these issues is not going to be a “walk in the park. “