About the AVA – S.295 / H.R.595
A federal statute (18 U.S.C. §2259) requires that, in child sexual exploitation cases, a defendant must pay restitution for “the full amount of the victim’s losses.” That works for crimes in which a defendant directly causes specific harm to a victim, but child pornography crimes are different. A child pornography victim is harmed by the initial abuse, then harmed by the distribution and possession of images of that abuse.
The Supreme Court has recognized that victims are harmed by the ongoing “trade” and “the continuing traffic” in child sex abuse images. “In a sense,” the Court said, “every viewing of child pornography is a repetition of the victim’s abuse.” On the Internet, that abuse never ends.
Each step in the child pornography process—production, distribution, and possession—increases the harm to a victim but makes it more difficult to identify those responsible. Victims of this kind of crime are especially in need of restitution to help put their lives back together. Meeting that challenge is the purpose of the Amy and Vicky Child Pornography Restitution Improvement Act of 2015.
“Amy” and “Vicky” are the victims in two of the most widely-distributed child pornography series in the world. On April 23, 2014, in Paroline v. United States, which reviewed Amy’s case, the Supreme Court found that the existing restitution statute is not suited for cases like theirs because it requires proving the impossible: how one person’s possession of particular images concretely harmed an individual victim. That standard puts the burden on victims to forever chase defendants and recover next to nothing.
The Amy and Vicky Act creates an effective, balanced mandatory restitution process for victims of child pornography that responds to the Supreme Court’s decision in Paroline v. United States. It does three things that reflect the nature of these crimes.
First, it considers the total harm to the victim, including from persons who may not yet have been identified.
Second, it requires real and timely restitution.
Third, it allows defendants who have contributed to the same victim’s harm to spread the restitution cost among themselves.
- A victim’s losses include medical services, therapy, rehabilitation, transportation, child care, and lost income
- If a victim was harmed by a single defendant, the defendant must pay full restitution for all her losses
- If a victim was harmed by multiple individuals, including those not yet identified, a judge can impose restitution on an individual defendant in two ways depending on the circumstances of the case
- the defendant must pay “the full amount of the victim’s losses” or, if less than the full amount,
- at least $250,000 for production, $150,000 for distribution, or $25,000 for possession
- Federal law already provides a mechanism for creating a restitution payment schedule
- Multiple defendants who have harmed the same victim and have paid at least those minimum amounts are jointly and severally liable and may sue each other for contribution to equalize the restitution cost (the Supreme Court said in Paroline that this is important)
Those who continue a victim’s abuse should not be able to hide in the crowd; there should be no safety in numbers. Victims should not be abused again by putting the burden on them to prove the impossible. Instead, the Amy and Vicky Act creates a practical process, based on the unique kind of harm from child pornography, that both puts the burden on defendants where it belongs and provides actual and timely restitution for victims.