What, if any, causal relationship or nexus between the defendant’s conduct and the victim’s harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. § 2259?
Lower court opinion: In re: Amy Unknown: United States v. Paroline, 701 F.3d 749 (5th Cir. 2012)
This is an important case for anyone handling federal possession of child pornography cases, as it will address restitution in those cases under 18 U.S.C. § 2259. Questions about the application of the statute in child pornography cases have arisen as a result of what some call the “restitution revolution.” Here’s the background:
The statute requires a federal sentencing judge to order a defendant to pay restitution to victims of various child sex offenses, including possession of child pornography. A victim is a person “harmed as a result of a commission of the crime,” § 2259(c). The restitution is supposed to cover “the full amount of the victim’s losses,” § 2259(b)(1), defined to include a list of enumerated items—e.g., medical and psychological care and therapy, lost income, attorney’s fees—as well as a catch-all category of “any other losses suffered by the victim as a proximate result of the offense,” § 2259(b)(3)(A) to (F).
The statute can be applied easily enough to offenders who personally recorded or participated in the sexual abuse. But starting a few years ago, some known victims of child pornography–the most prominent of whom are known by the pseudonyms “Amy” and “Vicky”–have sought criminal restitution in hundreds of cases in which the defendant was not involved in their original sexual abuse, but only possessed or distributed images of that abuse. They claimed these defendants were responsible for revictimizing them and demanded restitution is specific amounts—Amy, for instance, typically seeks about $3.4 million for, among other things, past medical expenses, future therapy, and lost wages. They have succeeded in getting varying amounts of restitution in many cases, including Paroline’s. (If you want more on this interesting story, see here and here.)
The issue in this case presents a question of statutory interpretation: Under § 2259, does the government or the victim need to prove that the defendant’s offense “proximately” caused the enumerated categories of loss, or is proximate cause only required for losses requested under the catch-all category? The Fifth Circuit held there was no requirement that restitution be limited to losses proximately caused by the defendant’s criminal acts and that the defendant is responsible for restitution for all losses suffered by the victim regardless of whether the defendant’s criminal acts proximately caused the loss and the victim’s losses occurred prior to the defendant’s indictment and arrest (or maybe even his possession). Every other federal court of appeals that has addressed this question has held that a showing of proximate cause is required for all categories of loss.
In our circuit, the case so holding is United States v. Laraneta, 700 F.3d 983, 989-990 (7th Cir. 2012). The court there also noted it was a “difficult question” what “proximate cause” actually means, and concluded as a practical matter that it simply requires a court “to have a reason for picking out one causal relation among the many that may have contributed to an untoward event, a reason such that making that relation a basis of legal liability would have a socially desirable effect, such as deterrence.” Id. at 990. (Because it was unclear whether the defendant even downloaded pictures of Amy or Vicky, much less distributed them, the court remanded the case for a redetermination not of the victims’ total damages, which are conceded, but of the portion allocable to the defendant. Id. at 991.) The decision in this case will tell us whether the Fifth Circuit’s approach is the right one; if it is, the result will change the law of this circuit.
Because this case involves a specific federal restitution statute the decision should have no effect on Wisconsin law. In any event, Wisconsin’s restitution statute, § 973.20, has a “nexus” requirement, though as we’ve noted several times before, it is not much of an obstacle to establishing a defendant’s liability for restitution.
