Restitution for wrongs and child pornography

By Legal Eagle

A friend alerted to me to an interesting case reported in the New York Times involving monetary restitution to a victim of child pornography  who goes by the pseudonym “Amy”.

When she was 8 or 9 years old, Amy’s uncle had filmed her in a series of pornographic photographs known as the “Misty” series. Amy is now 19 years old. Amy’s uncle is in gaol for his crimes, but the photos are still circulating around the Internet. The federal victim notification system means that Amy is sent a notice every time the photos turn up in a prosecution. She has received over 800 notices since 2005. Amy has now commenced legal proceedings demanding that every person convicted of possessing a Misty image or images should be liable to pay damages to her until her claim of US$3.4M has been met.

Amy’s claim has been litigated pursuant to 18 USC  § 2259, which provides for mandatory restitution for any offense under Chapter 110 (dealing with sexual exploitation and other abuse of children). Section 2259 provides as follows:

(a) In general.—Notwithstanding section 3663 or 3663A, and in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under this chapter.
(b) Scope and nature of order.
(1) Directions.—The order of restitution under this section shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim’s losses as determined by the court pursuant to paragraph (2).
(2) Enforcement.—An order under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A.
(3) Definition.—For purposes of this subsection, the term “full amount of the victim’s losses” includes any costs incurred by the victim for—
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys’ fees, as well as other costs incurred;
(F) any other losses suffered by the victim as a proximate result of the offense.
(4) Order mandatory.
(A) The issuance of a restitution order under this section is mandatory.
(B) A court may not decline to issue an order under this section because of—
(i) the economic circumstances of the defendant; or
(ii) the fact that a victim has, or is entitled to, receive compensation for his or her injuries from the proceeds of insurance or any other source.
(c) Definition.—For purposes of this section, the term “victim” means the individual harmed as a result of the commission of a crime under this chapter, including, in the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal estate, another family member, or any other person appointed as suitable by the court, but in no event shall the defendant be named as such representative or guardian.

Amy was successful in her first case, prosecuted in Connecticut in February last year. The man convicted of possessing child pornography (including the “Misty” images) was ordered by Senior U.S. District Judge Warren W. Eginton to pay Amy around $200,000. The judge admitted that the case was ground-breaking, as offenders who possess illegal images have not usually been required to pay restitution (as opposed to those offenders who create images).

Subsequently, Amy had mixed success. Two Florida courts ordered defendants to pay restitution of over US$3M in favour of Amy. In a Minnesota case, the judge demanded to know why the prosecution had not filed a restitution claim on Amy’s behalf. Other Courts have declined to order restitution (e.g. in Maine and in Texas). While those courts found that Amy and other victims were harmed as a result of the possession of pornographic images depicting them, they found that she did not establish that the particular defendant’s conduct was a “proximate cause” of her specific losses (see sub-section 2259(b)(3)(F) above).

Should someone like Amy be entitled to restitution for the wrongs which have been done to her? Certainly, one law blogger, Jonathan Turley, sees the restitution awards as stretching personal accountability to breaking point. Turley continues:

There is no question that people who buy or trade such child pornography are contributors or facilitators of these terrible crimes. However, the extension of the definition of victim could lead to liability without limitation. Presumably, anyone watching porn movies with an underaged character or in possession of a magazine with such a picture could be similarly faced with restitution demands. Prosecutors could threaten targets with financial ruin under such theories — forcing guilty pleas to other offenses. Restitution is generally limited to the direct victims of the defendants actions.

The concern is that there are a host of crimes that may involve the collateral crimes of others. Thus, receipt of stolen goods requires return of the property and a criminal penalty. However, a person guilty of possession is not normally required to pay restitution for a burglary if he did not play a role in the original crime. Thus, a pawn shop owner is responsible for the crime of possession of a stolen object but not restitution for the broken window or physical assault related to the break in.

On the other hand, as the New York Times article points out, some courts have argued that extremely heavy sentences on sex offenders are unfair, and reflect a knee-jerk emotional reaction on the part of legislators and the public. Monetary damages in cases such as these may provide a different way of punishing offenders and also potentially providing some vindication for victims.

My friend and I were also discussing the problem of cases where the victims could not be identified. Should the defendant still be required to pay damages into a fund? And if so, how should the money be administered? This links into a talk I went to a while back which discussed the possibility of cy pres trusts for class actions – where moneys were unclaimed by specific plaintiffs, the money could be held on trust for people in the same category as the plaintiff or for a cause linked with the proceeding. For example, in a case involving child pornography, the moneys could be held on trust for children’s charities or the like.


  1. davidp
    Posted February 4, 2010 at 1:09 pm | Permalink

    How did/do they determine the victim’s loss ?
    It’s an ongoing invasion of privacy and humiliation – is that the basis for the $US3.4million ?

  2. davidp
    Posted February 4, 2010 at 1:27 pm | Permalink

    I’ve now read a victim impact statement by her. She is messed up and struggling to cope with life because of the abuse. The ongoing viewing promotes her fears of being recognised so it is a continuing offense against her.
    By intentionally procuring the pictures, the viewers are actively contributing to a current harming of her.

  3. TheodoraBrown
    Posted February 4, 2010 at 3:01 pm | Permalink

    I wonder if, as horrible as it sounds, whether a case like Amy’s where there seem to be a “series” of images of the same victim – that form part of a collection for the offender – might also be treated differently to, say, single images.

    Would it make any difference where the images show ongoing abuse and the offender has been actively procuring/collecting them or where they’ve been more randomly gathered?

  4. Posted February 4, 2010 at 4:17 pm | Permalink

    @ 3 [LE]

    “Imagine getting 400+ notices.”

    This strikes me as a case where the so-called remedy may well be exacerbating the harm. All the more if the person found with the pictures is not a person of means. Is this such a good idea?

    The amounts ordered against individuals seem disproportionate, especially when, as in this case, the images have been widely circulated. And what about contribution between wrong-doers?

  5. Peter Patton
    Posted February 4, 2010 at 4:27 pm | Permalink


    Over this Christmas/New Year period, it was the first time for quite a few years I was able to just chill and enjoy having nothing to do. I caught up on a fair bit of television. Please tell me that the global epidemic of child abuse/pornography that is the basis of so many TV drama shows is a huge exaggeration.

    If humanity really is like it is presented on Law and Order and all the rest of them, we are seriously one very, very sick species.

  6. Peter Patton
    Posted February 4, 2010 at 6:08 pm | Permalink


    A good friend of mine is a criminal barrister, er I mean a barrister with a practice in criminal law. 😉 Anyway, he had to defend this client who had been charged with things that were so shocking even to his own children (I won’t divulge anymore), but the client denied them all.

    My friend wasn’t totally sold on his client being an angel, but decided all the truly awful accusations were false. Nevertheless, my friend hated having anything to do with him or the case. But after a couple of months, it turned out his client had not only committed everything he was charged with, but started admitting even more gruesome things to my friend – his barrister.

    My friend’s legal practice has never been busy with the great and the good as clients, but this particularl case shook him so much, I was really, really surprised, because he was/is otherwise an extremely together bloke who has ‘seen it all’. He said that particular case was the worst possible train collision between family law and criminal law. I don’t blame you for getting out one bit.

  7. Posted February 4, 2010 at 7:03 pm | Permalink

    I’ve worked (and still work) in crime — yep, a barrister with a criminal practice (nicely put there, Peter!). It is a conscious daily effort to keep a clear mental division between the great mass of people out there in ‘worldsville’ and the people who ‘cross one’s desk’ in the form of various briefs. I have never practised family law but I understand that the working rule is similar for lawyers who work there.

    I have lost count of the number of coppers who decide that pretty much everyone must be some sort of a crim because crims are the only people they see; this is rarer among lawyers but does happen and has to be averted with a conscious effort. I am helped by the fact that many, many criminal cases (to this libertarian) are not what I consider crimes at all (ie, part of the endlessly stupid War on Drugs). That’s some consolation, but otherwise, it’s a matter of approaching one’s ‘daily bread’ with a clear and honest eye.

  8. Patrick
    Posted February 4, 2010 at 7:22 pm | Permalink

    Crim is definitely not for me!

    I also can’t watch legal shows, but have you tried the Wire?

  9. Peter Patton
    Posted February 4, 2010 at 7:26 pm | Permalink

    Yeah SL my mate has the same attitude. In fact, I’d say he sees a lot of his work as equally Social Work and barristering! But he is very much in that kind of left wing mould. If I were in a pickle, I’d be mighty relieved if I knew he had my back. But this one particular client and case just sent him for six.

  10. Posted February 4, 2010 at 7:51 pm | Permalink

    The only vaguely police/law related show I watch is “Inspector Rex.” Somehow when there is a dog involved and it’s in languages I don’t understand, all the absurdities and breaches of procedure aren’t as offensive …

  11. Patrick
    Posted February 5, 2010 at 10:26 am | Permalink

    Ah, LE, I strongly encourage you to! The Wire may kill your PhD 🙂

  12. AJ
    Posted February 5, 2010 at 5:17 pm | Permalink

    “If humanity really is like it is presented on Law and Order and all the rest of them”

    David Simon, the creator of The Wire, pointed out that if you add up all the crime shows on TV set in New York, there are more murders per year in TV New York than there is in real New York. I don’t know if the numbers actually stack up, but they would have to come pretty close, especially when you considered that everyone that gets murdered in TV New York is a rich socialite, a Wall St banker, a mafia don or a famous actor, not a drug dealer.

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