The Violence Against Women Act of 1994(“VAWA”) is a remedial statute that contains specific categories of compensable losses. The VAWA was codified in 18 U.S.C. § 2259. The statute has been used in recent years by adults, who were victimized as children by child pornography, to apply for and receive restitution from defendants convicted of possessing child pornography which contained images of these adults as sexually exploited children. 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.”


But how to determine the appropriate amount of restitution under this demanding remedial statute has proven to be a recurring problem for the federal courts.


The Sixth Circuit this year has had two separate opportunities to address this complex issue. In the most recent case (April 2013), forensic examinations of Christopher Hargrove’s computer revealed more than 800 images and sixteen videos depicting sexual exploitation of children. Law enforcement officials sent Hargrove’s collection of pornography to the National Center for Missing & Exploited Children—a non-profit organization granted authority by Congress to work with law enforcement to help identify the victims of child abuse. The NCMEC identified three victims in Hargrove’s collection who have filed hundreds of restitution requests under the VAWA.


Attorneys for these three victims had compiled expert medical reports and other materials, such as economic loss reports, to show that their clients collectively incurred approximately $3.6 million, primarily for “psychological treatment.” The sentencing judge in the Hargrove case crafted a restitution order requiring him to pay each of these victims $3,000. The judge enhanced his order by saying Hargrove must pay each victim $150,000 under “joint and several liability” if “it turns out these victims aren’t getting the care that they need for lack of money.” These victims had already secured restitution orders exceeding hundreds of thousands of dollars from defendants in the Government’s database. Aware of these prior orders, the judge with his $3,000 order essentially said the Government had not shown a causal link between Hargrove’s possession and harm the victims had suffer; therefore, he was trying to apportion an equitable payment amount against Hargrove based on what the victims had received from other defendants.


Four months before deciding Hargrove, the Sixth Circuit decided the combined cases of James D. Gamble and Shawn Crawford. Gamble was convicted of one count of possessing child pornography while Crawford was convicted of one count of receiving child pornography. In the pornographic collection of both men were images of “Vicky”—one of the three victims in the Hargrove case who has filed numerous VAWA restitution requests. The sentencing judge in Gamble’s case ordered the defendant to pay $1,002,766.85 in restitution to Vicky while the sentencing judge in the Crawford case ordered the defendant to pay $1,002,076.85 to the victim. The judges said the payments would be “jointly and severally” shared with other defendants convicted of possessing Vicky’s images.


The disparity in the restitution amounts in the Hargrove case compared to those in the Gamble/Crawford cases is not only disturbing but is a clear indication that federal judges across the country need guidance so as to consistently apply the VAWA in child pornography cases.


The only explanation for the restitution disparity in these three cases is fairly evident. The sentencing judge in Hargrove’s case believed the VAWA required a showing of a causal link between the possession of the pornography and the harm it caused the victim; that the Government bore the burden of making this showing. The sentencing judges in the Gamble/Crawford cases did not believe such a showing was required; that possession itself constituted harm.


The Sixth Circuit in Gamble/Crawford reversed the restitutions orders in those cases, saying the Government indeed bears the burden to “show that the costs incurred by the victim were proximately caused by the defendant’s offense.” In other words, the defendant’s possession was the “cause-in-fact” of the victim’s harm—and that the harm had to be “reasonably foreseeable.”


Other circuits have taken a more expansive view; namely, that there must be actual proof of a causal link between a defendant’s possession and a victim’s harm. The Sixth Circuit expressly rejected this view in Gamble/Crawford, finding that a “cause-in-fact requirement does not necessarily mean that defendants of whom Vicky is unaware have not caused her losses … Vicky’s losses result from the knowledge that her image is being generally circulated, and a district court found that defendants like [Gamble/Crawford] contributed to that knowledge.


The Second Circuit recently adopted a similar view in the case of Avery Lundquist which we discussed in a recent post; a view that more closely resembles the Fifth Circuit’s singular and more restrictive view that the Government need only show possession to establish harm under the VAWA. The Fifth Circuit view is currently pending before the Supreme Court which will hopefully sort through these different circuit views to determine the appropriate standard for determining harm under the VAWA.


The Gamble/Crawford decision offered a significant qualification to its position that the knowledge by a victim that her images are being circulated is the “cause-in-fact” of any harm she may have suffered. That is, the Government must bear the burden of showing that a restitution award under the VAWA is “appropriate,” and if the Government satisfies this burden, the sentencing judge “must” then consider that a defendant is not responsible for any harm the victim may have suffered prior to his possession. Put simply, a defendant is only liable for the costs of a victim’s harms “clearly traceable” to him—possession of a victim’s images prior to the defendant’s possession cannot be attributed to him for restitution purposes. The Sixth Circuit in Hargrove articulated how this analysis should be applied:

“Undertaking such an analysis, the district court would first determine ‘the pool of a victim’s provable losses that are not traceable to a single defendant using the proximate cause standard’ elucidated in [Gamble/Crawford] and then divide that figure by the number of “convicted possessors” supplied by the government from its database of convicted child pornography defendants. But ‘different divisors may be reasonable,’ and the government’s ‘apportionment proposal is not necessarily the only way to calculate restitution’ in these kinds of cases. District courts may consider other formulas or procedures for allocating restitution to redress the victims’ injuries, keeping in mind that the method chosen must ‘fairly implement Congress’s goals.’ Courts may not apportion restitution by imposing joint and several liability, as was done [in Hargrove].”


We agree wholeheartedly that a defendant should not be held liable for any harm caused by other defendants who possessed the illegal images of the child’s abuse before his offense occurred. We would differ, however, with the Sixth Circuit on the issue of joint and several liability.   It is a long standing equitable principal that there should only be one recovery for one harm and the resulting loss.


This is a terribly painful crime for the victims, who may suffer physical and emotional damage for the remainder of their lives.  It is a grotesque example of man’s depravity against the most vulnerable in our society, and should be punished as such.  However, it is such cases, those that cause intense aversion and violent reaction, which create unfair and irrational law.  It is the courts role to temper emotional response and judge according to law and principles of equity and fairness.  We await the Supreme Court’s response to this very difficult issue.