SUPREME COURT TO HEAR CASE CONCERNING
PAYMENT OF RESTITUTION TO FREEMAN LEWIS LLP CLIENT

This morning, the Supreme Court agreed to hear a case about the award of criminal restitution to our client “Amy”, who is a victim of child pornography. (Amy uses a pseudonym in court actions to protect her privacy.) The Court agreed to decide the issue of “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.”

Freeman Lewis LLP has been working with the Marsh Law Firm to represent Amy in civil actions against defendants convicted of crimes involving photographs of Amy's sexual abuse when she was a young girl.

The case, soon to be before the Supreme Court, arises out of a 2009 criminal conviction of Doyle Randall Paroline in federal court in Texas for possessing child pornography. Among the 150 to 300 images that Paroline possessed, several were pictures of Amy.

Amy was repeatedly raped by her uncle, who photographed the abuse to produce child pornography. The resulting images are among the most widely disseminated photographs of sexual abuse in the world. The National Center for Missing and Exploited Children said it has found at least 35,000 images of Amy's abuse in more than 3,200 child pornography cases since 1998. As a result of these crimes, Amy has suffered serious psychological trauma and incurred substantial expenses for psychological counseling, which is likely to continue for her lifetime. She has sought restitution in criminal prosecutions around the country, arguing that the pertinent law allows victims such as her to collect all of their expenses from any one defendant found to possess their image, rather than having to collect them in tiny increments from the many defendants who have been convicted of collecting their images.

The lower courts are in conflict on this issue. Last fall, Amy won a victory in a case heard by 15 judges of the U.S. Court of Appeals for the Fifth Circuit (based in New Orleans, Louisiana). In re Amy Unknown, 701 F.3d 749 (5th Cir. 2012). The majority of those judges read the statute to mean that once a trial court has determined a person seeking restitution in a child pornography case to be an “individual harmed as a result of a commission of” a sex crime, section 2259 requires the district court to order restitution for that victim for “the full amount of the victim's losses.” § 2259(b)(1). Those losses include five categories of specific losses—medical services related to physical, psychiatric, or psychological care; physical and occupational therapy or rehabilitation; necessary transportation, temporary housing, and childcare expenses; lost income; and attorney's fees and costs—and one category of “other losses suffered by the victim as a proximate result of the offense.” §2259(b)(3). Under the doctrine of joint and several liability, the defendant ordered to pay the “full amount of the losses” may then seek contribution from the other defendants, sparing the victim from this task.

But other courts have disagreed. For example, the United States Court of Appeals for the Ninth Circuit (based in San Francisco, California), has held in another case involving Amy that victims of child pornography crimes are only entitled to collect from a defendant that specific part of their losses that the defendant proximately caused. In re Amy Unknown, 698 F.3d 1151 (9th Cir. 2012). Under the Ninth Circuit’s decision, victims must chase down small awards from hundreds, if not thousands, of responsible pedophiles.

Paroline, the defendant in the Fifth Circuit case, and Amy both petitioned the Supreme Court to review the Fifth Circuit’s decision and resolve this conflict, and today the Supreme Court agreed to do so. The Court is expected to hear the case early next year. Amy’s lawyers will appear in the Supreme Court to defend the Fifth Circuit’s ruling.

Amy is very pleased that the Court has agreed to decide this issue of great importance to victims of child pornography:

“The Court’s decision to accept my case means so much to me because now everything I have gone through—being everywhere on the internet all over the world—isn’t for nothing. Now others like me who have gone through horrific traumas, and are still going through horrific traumas, can show the public that awful things like this do happen. That we are people, just like them, who deserve to have our day in court. I want this case to help other victims realize that they are not alone. That something can and will be done about their pain and suffering, and that they do not have to be afraid. This case could have a positive impact on so many people. I hope we can convince the justices that victims deserve restitution from everyone who collects pictures of their abuse.”

James Marsh of the Marsh Law Firm and University of Utah Law Professor Paul Cassell have been leading the criminal litigation for Amy.

Professor Cassell, who will argue the case in the Supreme Court, commented:

“I am looking forward to convincing the Supreme Court that victims of serious child pornography crimes are entitled to hold every defendant accountable for all of the losses that their victims suffer.”

Professor Cassell also noted that this case is an historic one for the crime victims’ rights movement: “This case will be the first time that a crime victim’s attorney has argued before the United States Supreme Court (rather than a prosecutor or defense attorney bringing the case).”

For more background about Amy and another victim, "Vicky", read this cover story published in the New York Times Magazine earlier this year.

See also Freeman Lewis LLP E-Update dated Oct. 25, 2011.

Freeman Lewis LLP is a boutique firm focusing on employment law, victims' rights, securities arbitration, white-collar criminal law, commercial litigation, and ERISA litigation. For more information, visit http://www.freemanlewis.com.