Restitution in Child Pornography Cases
On Friday, December 7, the President signed into law The Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018. The Act is Congress’ response to the Supreme Court’s decision in Paroline v. United States where the Court found that in the “special context, where it can be shown both 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,” restitution should be ordered “in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.”
Immediate Significance of New Restitution Law
- imposes a mandatory minimum restitution amount of $3,000 on defendants convicted of “trafficking in child pornography”;
- piles on a new mandatory “assessment” for child pornography offenses, with monetary caps that vary by offense;
- directs courts how to calculate restitution in “trafficking in child pornography” cases; and
- authorizes the court to demand an accounting from the victim of restitution paid by other defendants.
The law was enacted on December 7. Consistent with the Ex Post Facto Clause, it states that defendants who have been convicted and are awaiting sentencing “shall be subject to the statutory scheme that was in effect at the time the offenses were committed.”
Calculation Restitution in Child Pornography Cases
Pre-existing law already imposes mandatory restitution for any offense under chapter 110 of title 18, but the new law takes the additional step of setting a mandatory minimum restitution amount of $3,000 for offenses that fall in the category of “trafficking in child pornography.” Under the new law, those are convictions for violating “section 2251(d), 2252, 2252A(a)(1)through (5), 2252A(g) (in cases in which the series of felony violations exclusively involves violations of section 2251(d), 2252, 2252A(a)(1) through(5), or 2260(b)), or 2260(b).”
In response to the Supreme Court’s decision in Paroline, the new law instructs courts how to calculate a restitution order for defendants convicted of trafficking in child pornography. The court is to begin by determining “the full amount of the victim’s losses that were incurred or reasonably projected to be incurred by the victim as a result of the trafficking in child pornography depicting the victim.” Next, the court shall set a restitution amount that “reflects the defendant’s relative role in the causal process that underlies the victim’s losses, but which is no less than $3,000.”
The “full amount of the victim’s losses” includes “any costs incurred, or that are reasonably projected to be incurred in the future . . . as a proximate result of the offenses involving the victim.” That includes losses that are a “proximate result of all trafficking in child pornography offenses involving the same victim.” The new law lists the kind of losses that are relevant to the restitution calculation, just as the pre-existing law did. The victim is not limited by that list and may seek other losses.
The defendant’s obligation to pay restitution is terminated once the victim receives restitution in full “as measured by the greatest amount of such losses found in any case involving that victim that has resulted in a final restitution order under this section.”
A victim in a child pornography case can choose to receive defined monetary assistance from the Child Pornography Victims Reserve. If the victim opts for defined monetary assistance, s/he will receive a one-time payment of $35,000 (indexed for inflation). Courts shall deduct the defined monetary assistance payment when calculating the victim’s losses for purposes of restitution. A victim who decides to receive defined monetary assistance is not barred from receiving restitution for any other offenses. Victims are ineligible to receive defined monetary assistance if they have already collected restitution in an amount that exceeds the amount of defined monetary assistance. Attorney’s fees for the victim’s lawyer are capped at 15% of the defined monetary assistance payment, and exceeding that cap is a violation of law punishable by a fine and up to one year of incarceration.
If You Have Questions Regarding Your Rights as a Survivor of Rape or Sexual Abuse
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