4th Circuit Slams the Brakes on Runaway Child Porn Restitution

ASHEVILLE, N.C.—In a move that will likely bring the issue before the U.S. Supreme Court, the Fourth U.S. Circuit Court of Appeals overturned a requirement that child porn consumer Albert Charles Burgess, Jr. pay child porn victim "Vicky" $305,219.86 (love those round numbers!) for harm allegedly caused to her by Burgess' possession of images in which Vicky appeared. In 2009, Burgess was indicted for possession of, and knowingly receiving, child porn, and in November of that year, was convicted on both counts, receiving a 240-month sentence. Burgess appealed both the sentence and the restitution order, and while a Fourth Circuit panel affirmed his prison sentence, it noted that the trial court "did not determine that his conduct proximately caused harm to the victim." After observing that the purpose of the restitution statute, 18 U.S.C. §2259, is to "direct the defendant to pay the victim ... the full amount of the victim's losses," which it noted could be losses incurred for medical services (physical, psychiatric or psychological); physical or occupational therapy or rehabilitation; transportation, housing and child care expenses; lost income; attorney's fees; or "any other losses suffered by the victim as a proximate cause of the offense," the court had trouble tying Burgess directly to whatever harms had actually befallen Vicky. [Emphasis in original] "In construing the statutory language, the salient issue before us is whether a victim's loss attributable to a defendant under the restitution statute is limited to losses proximately caused by the defendant," wrote Judge Barbara Milano Keenan for the panel's majority. The court noted that Vicky had argued that the wording of the statute, which includes phrases like "full amount of the victim's losses" and "any costs incurred by the victim," precluded limiting the trial court's restitution order, but determined that, "Of the several circuits that have considered the general causation argument advocated by Vicky in this case, none currently has adopted such reasoning. Instead, the courts of appeals have concluded that a proximate causation limitation is applicable to the restitution statute, although these courts have reached that conclusion using different rationales." Among those "different rationales" that other courts have used, a majority looked to applying "traditional tort principles" to the language of the statute; notably, the District of Columbia Circuit in U.S. v. Monzel reduced the restitution to child porn victim "Amy" "to reflect the actual harm suffered," which they said required a "predicate finding of proximate causation," and that in any case, in order to receive restitution, "Amy" would have to prove that she was "harmed as a result of" the commission of Monzel's crime—child porn possession—as per the statutory definition of "victim" in such a situation. [Emphasis in original] "Proximate cause" is defined as "a happening which results in an event, particularly injury due to negligence or an intentional wrongful act. In order to prevail (win) in a lawsuit for damages due to negligence or some other wrong, it is essential to claim (plead) proximate cause in the complaint and to prove in trial that the negligent act of the defendant was the proximate cause (and not some other reason) of the damages to the plaintiff." "We agree with this analysis and conclude that nothing in the text or structure of the restitution statute affirmatively indicates that Congress intended to negate the ordinary requirement of proximate causation for an award of compensatory damages," the panel found. "Rather, the statute’s language, which defines a victim as one 'harmed as a result of a commission' of a defendant's acts, invokes the well-recognized principle that a defendant is liable only for harm that he proximately caused." The court also rejected Vicky's assertion that "applying a proximate causation limitation to the restitution statute would circumvent the express statutory command that a defendant pay the victim 'the full amount of the victim's losses.' Vicky argues that by charging each defendant who sexually exploited her with the full amount of her losses, the statutory scheme will be given the appropriate effect of placing the onus on the exploiters to apportion liability among themselves, jointly and severally, for the harm that they have caused, rather than placing such a burden on the victims." "That argument is not supported by the structure or text of the statute," The court found. "The phrase 'full amount of the victim’s losses' cannot be interpreted in a vacuum. This phrase is defined within the restitution statute itself, and is composed of subsections (A) through (F). Further, an interpretation of the phrase 'full amount of the victim's losses' that allows complete recovery from each of hundreds of defendants who have viewed Vicky's image or otherwise have participated in her exploitation necessarily would lead to a system supporting multiple recovery. While full compensation would be unlikely from any individual defendant, Vicky’s proposed interpretation of the restitution statute places no cap on her ultimate recovery, and would allow her to recover the amount of her losses many times over." In other words, it would appear that the court suspects that Vicky may be using her sexual violation as a "cash cow" to recover millions if not billions of dollars from everyone who's seen the images of her assault. "Accordingly, we reject Vicky’s proposed interpretation of the restitution statute and join the plurality of circuits in adopting the reasoning set forth in Monzel," the court ruled. "We hold, therefore, that Burgess is only responsible for losses sustained by Vicky that he proximately caused." The appeals panel therefore remanded the amount of the restitution to the district court, in the process warning it that, "While the district court is not required to justify any award with absolute precision, the amount of the award must have a sufficient factual predicate. Vicky's loss is an aggregation of the acts of the person who committed and filmed her assault, those who distributed and redistributed her images, and those who possessed those images. The culpability of any one defendant regarding Vicky's loss is dependent at least in part on the role that defendant played with respect to her exploitation." "We are confident in the skill of the district judges throughout this circuit to ascertain the appropriate amount of restitution in a given case," Judge Keenan continued. "Nevertheless, we are mindful of the challenges posed in the determination of damages under the restitution statute. Accordingly, we add our voice to that of the Ninth Circuit in [U.S. v.] Kennedy in requesting that Congress reevaluate the structure of the restitution statute in light of the challenges presented by the calculations of loss to victims in the internet age." Of course, Congress is unlikely to want to wrestle with that thorny issue. It's difficult to imagine that any politician would be willing to say that a person molested as a child, whose molestation was immortalized (in the most literal sense) on film, video, .mov or .jpg, doesn't deserve the millions or billions of dollars in restitution that Vicky and some others claim they're owed. That would take courage that is obviously lacking in the current crop of federal legislators—even the most rabidly religious and conservative ones. The opinion can be accessed here.