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Supreme Court to Hear Child Porn Restitution Case

By Brett Snider, Esq. on October 08, 2013 | Last updated on March 21, 2019

The Supreme Court is primed to settle a Circuit split over the issue of child porn restitution, in a case where restitution was awarded to a victim who never even met the defendant.

Paroline v. United States is one in a long line of "Amy and Vicky" cases -- ones where restitution is sought from the child porn possessor and not the producer -- and will decide if the Fifth Circuit's approach to proximate cause is superior to other Circuits' views.

What is so different about the Fifth Circuit's ruling in Paroline's case?

Proximate Cause Interpretations

According to The Associated Press, photos of a sexually abused, underage girl known as "Amy" had been circulated for more than a decade, and Texas resident Doyle Paroline was convicted for possessing pictures of "Amy" -- who is now an adult woman living in Pennsylvania. Other federal circuits, including the nearby Second, had rejected the notion that victims like "Amy" could recover restitution under federal law from child porn possessors, given that the causal link between the victim and the offender was too attenuated.

The sticking point for many of these circuits was the restitution ordered pursuant to 18 USC § 2259(b)(3)(F) includes "any other losses suffered by the victim as a proximate result of the offense," basically a proximate cause requirement for damages.

The Fifth Circuit didn't see it that way. Treating the list in § 2259(b)(3) as separable, the Fifth Circuit determined that the proximate cause requirement was only applicable to the catch-all provision in subsection (F). This left "Amy" victims free to collect from porn-possessors like Paroline without any nexus between their losses and the possessor's actual conduct.

Child Porn Is Bad, But Is This Rule Good?

Paroline's counsel thinks that this rule makes his client "equally liable as the person that cause the image or the person who sells the image," reported Texas Lawyer, and this may be bending or breaking Congressional intent. Especially, and unfortunately, since restitution for these images have been reported in at least 174 child pornography cases, without some guidance from the U.S. Supreme Court, the Fifth Circuit could become a portal through which all restitution flows.

With cases like Monell being far and few between, SCOTUS tends to lean away from expanding things like look like tort liability, especially when there is a risk of creating an untenable system.

Hopefully, some reasonable interpretation of restitution in child porn cases will issue forth from the High Court, but don't gear up just yet. Even though cert was granted, a hearing date for Paroline has yet to be set.

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