When she was eight and nine years old, Amy was repeatedly sexually abused by her uncle. The uncle photographed the abuse and uploaded the images on the Internet. In the late 1990s, law enforcement officials traced the images back to the uncle. He was convicted in both federal and state courts for offenses flowing from the monsterous sexual abuse of his niece.


The sexual abuse pushed Amy into psychological treatment in 1998. Over the next year she responded to her treatment in an exceptionally positive manner—so much so that in 1999 her therapist, Joyanna Silberg, declared she was “back to normal.” Amy’s treatment was discontinued.


In 2005, Amy learned that the images of her sexual abuse were being downloaded from the Internet by child pornographers. She was seventeen at the time. Dr. Silberg said her “symptoms” of child abuse re-emerged with that news. At this point Amy contacted an attorney who informed her that she was eligible for restitution under the Violence Against Women Act of 1994 (“VAWA”). The attorney began compiling evidence of the psychological and economic harm Amy had suffered as a result of the sexual abuse and the distribution of her images downloaded from the Internet. In 2008, Amy filed the first of hundreds of requests for restitution against defendants who had been arrested and convicted of possessing child pornography which included her images.


This produced an avalanche of restitution requests under VAWA by victims of child abuse who had their abuse either photographed or filmed and uploaded to the Internet. Amy’s attorney and other attorneys involved in similar litigation were able to track their clients’ Internet pornographic images through the National Center for Missing & Exploited Children (“NCMEC”)—a non-profit organization that was granted authorization from Congress to work with law enforcement to “build a coordinated, national response to the problem of missing and sexually exploited children, establish a missing children hotline and serve as the national clearinghouse for information related to these issues.”


The restitution requests and ensuing restitution orders by federal district courts (some in nonsensical, exorbitant amounts) under VAWA triggered an influx in litigation in the federal appeals courts. VAWA contains five categories of compensable losses—as we explained in previous posts (here and here ). Every federal circuit, except the Fifth Circuit, concluded that VAWV contains a “proximate cause” requirement based either on the language of the statute or through longstanding common law principles. Many U.S. Attorneys agreed with this consensus of opinions—that a showing had to be made that defendant’s possession of a victim’s pornography was the “proximate cause” of any “harm” the victim may have suffered.

Standing alone, the Fifth Circuit concluded that possession of the pornography alone constituted sufficient harm to warrant restitution. A Fifth Circuit decision is now pending before the U.S. Supreme Court to resolve this circuit conflict.


The Second Circuit has taken the lead on the issue of a prerequisite showing of proximate cause of harm. With respect to the Amy case, the Second Circuit in 2011 decided United States v. Aumais in which the court held that proximate cause demands “’some direct relation between the injury asserted and the injurious conduct alleged.’” In other words, there had to be more than a mere possession of Amy’s pornographic images to warrant restitution for any harm suffered as a result of the possession. In denying restitution to Amy in the Aumais case, the appeals court made it clear that the uncle was the primary, independent cause of Amy’s harm; that the mere possession of her images without any causal link to any alleged harm suffered does not satisfy the proximate cause requirement of the VAWA.


A 2008 psychological report prepared in support of Amy’s restitution request stated that each new notification about a possessor of her images triggered emotional problems in the areas of “mood regulation, cognitive distortion, feelings of shame, self-blame, and guilt, self-esteem, alcohol abuse, disassociation, academic progress, interpersonal relationships, and vocational success.” The conclusion was based on evaluations conducted on June 11-12, July 29, and November 10, 2008. The problem is that Gerald Aumais was arrested on November 16, 2008, after the psychological harm conclusion was drawn based on evaluations conducted before his arrest. Thus, there was no evidence—not even the remotest link—that Aumais’ mere possession of Amy’s images had caused her any harm because he was just one in an audience of many who had viewed her images and this was not “sufficient to show that [he was] a proximate cause of any particular harms.”


Significantly, the Aumais court did not address the kind of circumstances or type of proof necessary for a victim like Amy to recover restitution under the VAWA. This opening prompted Amy’s legal team to shift gears. This shift was seen in the case of Avery Lundquist who was arrested on March 10, 2010. Law enforcement officials submitted the child pornography in his possession to NCMEC which identified some of Amy’s images in the collection. The U.S. Attorney’s office notified Amy’s legal team of the finding and the nature of the criminal proceedings pending against Lundquist so that she could “assert her rights” under the VAWA.


After receiving the Lundquist notification, Amy once again visited Dr. Silberg on August 17, 2010 to determine if her 2008 emotional harm symptoms still existed. “It is clear that many of the symptoms that Amy evidenced in the initial evaluation [in 2008] remain and some have worsened,” Dr. Silberg concluded in a written report dated October 21, 2010. “She continues to have post-traumatic symptoms, such as being triggered by the basement door at her uncle’s house.” Dr. Silberg added: “Amy continues to struggle with making academic and vocational progress, is paralyzed by shame and struggles with feelings of victimization, and had begun to recapitulate this re-victimization. Despite feelings of guilt and shame she is unable to halt these processes.”


On December 20, 2010, Amy visited Dr. Silberg for a second re-evaluation. This time the therapist and patient discussed why Amy was seeking restitution from defendants convicted of possessing her images. According to Dr. Silberg in a January 23, 2011 written report, Amy explained that “she believes that it is important for those people who are continuing to victimize her pay in some way, so that they have some knowledge of the harm they are causing.” Dr. Silberg added that Amy also “briefly discussed her incarcerated uncle and her fear that he will be released from prison soon as one of the things holding her back in life.”


Armed with these sentiments expressed by Amy, Dr. Silberg concluded that Amy’s “inability to move forward is … inhibited by a sense of pervasive fear. She describes fear of her uncle … as well as the pervasive fear of multitudes of men out there who could recognize her from a picture and have already abused her in their fantasies … [Thus] it is clear that Amy continues to suffer from the ongoing effects of her victimization from child abuse from the continued use of her image by child pornography viewers, traders, and abusers.”


Supported by the economic losses ($3,381,159.00) suffered by Amy as chronicled in a 2008 report and the psychological harm outlined in Dr. Silberg’s 2010 and 2011 reports, Amy’s defense team filed a restitution request pursuant to the VAWA on April 14, 2011 in the Lundquist case. The district court granted the restitution request in the amount of $29,754.19—1/113 (or 0.88%) of the $3 million-plus losses paid out by the 113 defendants who had been convicted at the time of the restitution request in the Lundquist case.


Lundquist appealed the restitution order to the Second Circuit relying upon Aumais. In a September 9, 2013 decision, United States v. Lunquist, the appeals court distinguished Lundquist’s claim from Aumais, saying the restitution request in Aumais was based on reports prepared before Aumais’ arrest. Neither the government nor Amy’s legal team presented any evidence demonstrating a causal link between Aumais’ mere possession of Amy’s images and the harm detailed in the 2008 reports. Specifically, the Aumais court held that Amy’s harm was “credible and well-established” but added that “where the Victim Impact Statement and psychological evaluation were drafted before the defendant was even arrested – or might as well have been — … the victim’s loss was not proximately caused by a defendant’s possession of the victim’s image.”


In the Lundquist case, the government and Amy’s lawyers, with the 2010 and 2011 Silberg reports, presented evidence that Amy suffered harm after the defendant was arrested for possessing her images. They argued the harm was more specific than the “general fear” harm found in the Aumais case. The Second Circuit explained: “The 2011 report specifies that: (1) [Amy’s] ‘poor interpersonal choices are seen as direct effects of the previous and ongoing abuse of Amy on the Internet and as a child’; (2) her ability to set or fulfill career goals ‘is exacerbated by her awareness of this pervasiveness of her image on the Internet which makes her fearful of interacting with many people outside the comfort of her familiar surroundings’; and (3) her ‘inability to move forward is also inhibited by a sense of pervasive fear … of her uncle … as well as the pervasive fear of multitudes of men out there who could recognize her from a picture and have already abused her in their fantasies.’”

The Lundquist court concluded with this defining observation: “’ … it is clear that Amy continues to suffer from the ongoing effects of her victimization from child abuse and the continued use of her image by child pornography viewers.’ Because the sequence of events following Lundquist’s arrest supports the reasonable inference that Amy learned about Lundquist before visiting Dr. Silberg for the re-evaluations, the district court reasonably determined that Lundquist caused part of the harm in the 2010 and 2011 Reports and thus was more likely than not a proximate cause of some of Amy’s losses. Moreover, Lundquist submitted a letter in connection with sentencing, in which he admitted having reviewed the victim impact statements of the children depicted in the images in his possession and acknowledged that he had ‘made them my vict[i]ms by my actions, that they relive it 24/7.’  Accordingly, Lundquist has admitted that his actions harmed Amy. Although such evidence is not necessary to show proximate cause, it provides additional support for the district court’s finding in this instance.”


Lundquist is horrible law. It is virtually no different than the Fifth Circuit position that “mere possession” of child pornography constitutes “harm;” that there is no need to show a causal link between possession and harm. The Fifth Circuit’s position has been uniformly rejected by every other federal circuit, including the Second Circuit—until Lundquist which held, as did Dr. Silberg’s 2010 and 2011 reports, that the mere possession of Amy’s images causes her continuing harm.


“Proximate cause” is an “either/or” proposition—either it is or it isn’t. With the exception of a few quibbling details, Aumais says it is, while Lundguist effectively says it isn’t. Perhaps the Lundquist decision is the gateway to compromise between the Fifth Circuit and other circuits. It provides the Supreme Court with an opportunity to satisfy both positions. Specific reports of harm, as those compiled by Dr. Silbert in 2010 and 2011 as compared to the speculative reports she compiled in 2008, may be seen as sufficient to establish a causal link between possession and harm sufficient to warrant restitution.

We hope we will see what the U.S. Supreme Court has to say about all this…