Vicki is a victim of child pornography. It began when she was 10 years of age. Pictures and videos depicting her bound, raped and sodomized was, and continues to be, widely distributed on the Internet. Her pornography became known in the courts as the “Vicki Series.” Her case is an example of inhuman abuse that no child should suffer and justifies the harshest of punishments. Her abuser was sentenced to 50 years in federal prison.
Vicki is now 25 years of age. Nearly a decade ago attorneys for Vicki and other victims of child pornography (the Amy Series) began petitioning the courts for restitution under the Mandatory Victims Restitution Act (MVRA). This statute requires restitution for the “full amount of the victim’s losses” defined as “any costs incurred by the victim for”:
- Medical services relating to physical, psychiatric, or psychological care;
- Physical and occupational therapy or rehabilitation;
- Necessary transportation, temporary housing, and child care;
- Lost income;
- Attorneys’ fee, as well as other costs incurred; and
- Any other losses suffered by the victim as a proximate cause of the offense.
Attorneys for Vicki began to submit “Victim Impact Statements” to any federal court in the country trying child pornography cases that, either in whole or part, involved the Vicki Series. They sought money damages for the following issues: psychological counseling, lost income, out-of-pocket costs and expenses, educational and vocational counseling, and loss of part-time income while in school.
Problems Calculating Damages
The problem was that courts did not know how to calculate proximate cause—in other words, a legally recognized injury that was a cause for the injury. Put simply, to what extent did each defendant’s possession of the Vicki Series cause harm to the victim. Courts began to hand down restitution awards to Vicki. They ranged $200.00 to $1,330,015.75.
As of January 2015, there had been 530 federal cases involving the Vicki Series. A total of $9,113,100.90 in restitution had been awarded in those cases—an average of $17,194.53.
Finally, in 2014, the U.S. Supreme Court stepped into the judicial fray and chaos generated by the MVRA in child pornography cases. The court outlined the following general standard to be used by the lower courts in deciding restitution awards in child pornography cases:
“In this special context, where It can be shown that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying [MVRA] should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s losses.”
Defendant’s Relative Role in Victim’s Losses
While this standard offers some guidance to the lower federal courts, it is not specific enough to tell federal judges how to fairly award restitution in cases involving the Vicki Series or other child pornography cases. For example, the Eighth Circuit Court of Appeals on January 24, 2017 upheld a sentence of 135 months and a restitution award of $3,500 in a Vicki Series case. That case involved more than 600 images and videos of child pornography with 21 of them being from the Vicki Series. The Eighth Circuit has consistently upheld restitution awards in Vicki Series cases in a range between $3,000 and $4,000 (here and here).
Restitution Awards Vary Widely
The Fifth Circuit Court of Appeals, however, did not receive the same Paroline signals as the Eighth Circuit. For example, in two post-Paroline cases the Fifth Circuit upheld Vicki Series restitution awards of $926,560.09 and $765,067.67, the latter of which involved only one image of Vicki.
These hugely disparate restitution awards among the federal circuits in post-Paroline cases prompted calls from child victim advocacy groups for Congress to intercede and overrule Paroline. These calls resulted in the introduction of the Amy and Vicki Child Pornography Victim Restitution Act (Amy/Vicki Act) by U.S. Senator Orin Hatch (R-Utah) and Sen. Charles Shummer (D-NY) on May 7, 2014 which was approved by a 98-0 vote in the U.S. Senate on February 11, 2015 but never passed by the House.
The failure of the House to act on the legislation (which never left the House Judiciary Committee) has frustrated both child victim advocates and the courts. In a February 2016 article, the Huffington Post pointed out that while the legislation has languished in Congress, the “federal courts have grown increasingly frustrated, while child victims have been denied meaningful compensation for the lifelong injuries they suffer.”
The Amy/Vicki Act is significant for two reasons: First, it would provide a minimum restitution award ($25,000 for possession, $150,000 for distribution and $250,000 for production) and require federal courts to consider the total harm done to the victim even by offenders who have not been convicted of possessing Amy/Vicki images; and, second, it would allow each individual offender convicted of possessing these images to sue other offenders to spread out the damage awards. For example, the two offenders assessed high restitution awards in the Fifth Circuit could sue the offenders in the Eighth Circuit assessed a relatively small damage of awards, forcing them to pay an equal share of their awards.
In other words, the offenders would have to fight it out among themselves to decide how each would have to pay an equal share. This would, of course, result in a flood of lawsuits in the federal courts to accommodate these protracted legal battles among the offenders, even those who have not yet been convicted.
Neither the courts nor Congress seem to know how to deal with proper restitution awards under the MVRA. The courts, as evidenced by the disparity between the Eighth and Fifth Circuit awards, seem incapable of finding an equitable post-Paroline solution while Congress with the Amy/Vicki Act would add only more confusion and chaos to this issue.