Feminist Law Professors

The article focuses on judicial conflicts about what a victim has to prove to qualify for restitution, especially with respect to harm. Accessible here, below is an excerpt:

… Under the Crime Victims’ Rights Act, the government must notify Amy and other child pornography victims anytime anyone is arrested by federal authorities for possessing their images. Her attorney, James Marsh of New York City, says his office has received at least 1,500 required notices of federal prosecutions for possession of those images. “The day after we were retained in 2008, we had someone open up all these notices she received in the calendar years 2006 and 2007,” Marsh says. “It took two days just to open the envelopes.”

Using the restitution provisions of the Violence Against Women Act, Marsh has begun utilizing the courts to request financial restitution from those convicted of possessing images of Amy’s child sexual abuse.

The novel and controversial requests don’t seek to hold possessors responsible for the original exploitation of Amy. Rather, they seek restitution under VAWA, as authorized by the Crime Victims’ Rights Act, for harm done to Amy each time someone downloads her uncle’s pornographic images of her.

Almost any time Marsh receives a notice of prosecution on Amy’s behalf, he files a formal request for more than $3 million to cover all of Amy’s psychological treatment, lost income and attorney fees. Marsh believes Amy is the first child pornography victim to use federal crime victim restitution laws in this way, and one of a very few nationwide. He knows of two other victims pursuing this strategy, including “Vicky,” another young woman whose victimization as a child is recorded in widely traded images. A third victim’s lawyer pursuing a similar strategy did not return calls for this article.

The law is clear that victims have the right to request full compensation when they are harmed “as a result of a commission of a crime under this chapter”—but it provides less guidance for determining whether the harm to Amy and Vicky is truly a result of child pornography possession. As a result, federal courts have come up with a full range of responses. Most have awarded restitution in less than the full amount requested. A few have ordered no restitution. But some have granted the entire amount. “I think it’s an unsurprising reaction to a really hard set of questions,” says Douglas Berman, a criminal law professor at Ohio State University. “Connecting the causation dots between the suffering of the victim and the nature of the offense is textured, to say the least.”

At least seven federal appellate courts have weighed in on cases involving Amy or Vicky, and a split has developed on the question of whether the victim’s losses must be proximately caused by the possession. The U.S. Supreme Court has denied certiorari in at least two cases.

The Violence Against Women Act requires courts to order restitution for “the full amount of the victim’s losses.” The law allows victims to recover “costs,” including medical bills, attorney fees and lost income, as well as “any other losses suffered by the victim as a proximate result of the offense.”

Though Congress may have intended this catchall provision as an afterthought, it has become the basis of the split between the federal appellate courts. Standing alone is the 5th U.S. Circuit Court of Appeals at New Orleans, which ruled in 2011’s In re Amy Unknown that the proximate-result language applies only to the catchall provision. It found that Congress did not intend to apply a proximate-result requirement to the other listed items, under which all of Amy’s claims fell. As a result, the 5th Circuit said, the judge in the Eastern District of Texas who rejected Amy’s petition was “clearly and indisputably wrong.”

(The case was reheard en banc, but there had been no ruling as of early August.)

On the other side, the 1st, 2nd, 3rd, 9th, 11th and D.C. Circuits have each found a proximate-cause requirement. But, as the Boston-based 1st Circuit observed in a Feb. 29 opinion, “this seeming agreement on a standard suggests more harmony than there is” after the standard is applied to the facts of individual cases. Three circuits—the 2nd, 9th and 11th—have awarded no restitution after finding not enough causal connection between the defendant’s actions and the harm to the victims. All three courts left the door open for restitution in future cases—indeed, the 9th and 11th had previously awarded it—but said prosecutors had not made their cases. In particular, the 2nd Circuit at New York City noted that the psychological evaluations supporting restitution had been completed before the defendant had even been arrested.

Restitution requests may be made independently or by prosecutors; either requestor has the burden of proving the restitution amount is valid, using documentation of past costs or expert opinions.

George Washington University law professor Jonathan Turley favors this stricter approach. A constitutional law expert and criminal defense attorney, he believes that in the case of child pornography possession the law requires a more direct show of harm to victims like Amy.

“The interpretation of proximate cause in these restitution judgments is so broad as to be practically indefinable,” he says. “But proximate causation, both in criminal law and tort law, has always required more than conjecture. There is an understanding that some threshold showing or nexus has to be made.”

Berman says he would feel more comfortable with a closer causal connection. However, he points out that the legal issues are complicated by judges’ emotional reactions to the situation: a sympathetic victim and a series of offenders who may provoke feelings of disgust.

“Federal judges know they can’t let that overwhelm attentiveness to the law,” he says. Perhaps as a result, “we’re seeing a number of awards in district courts that are picking small awards out of the air. That is a reflection of judges trying to balance emotional influences, but I’m not sure the law provides” that solution, Berman says. …