Paul G. Cassell, James R. Marsh, and Jeremy M. Christiansen · December 2013
82 GEO. WASH. L. REV. 61 (2013)
To address the serious harms resulting from federal sex offenses, including the creation, distribution, and possession of child pornography, Congress created an expansive statutory regime in the Mandatory Restitution for Sex Crimes provision of the Violence Against Women Act, 18 U.S.C. § 2259, requiring federal district courts to direct defendants to pay the “full amount” of losses incurred by any victim of their offense. Section 2259 provides that such losses can include the cost of psychological treatment, lost income, and attorneys’ fees.
Despite this congressional mandate, courts are divided on what the restitution statute requires when thousands of defendants possess images that collectively harm one victim. The differing outcomes largely turn on a question the Supreme Court will consider this term: whether a victim must show that her losses were the proximate result of a defendant’s crime. This is a threshold issue for determining whether victims receive full, some, or no restitution from convicted child pornography defendants.
This Article contends that Congress meant what it said in § 2259. Child pornography victims are entitled to restitution for the “full amount” of their losses from defendants convicted of collecting or distributing their images. This comprehensive approach is based on Congress’s well-founded recognition that the collection and distribution of child pornography causes significant harm to the victims depicted in those images. Compensating victims for the financial losses they suffer is consistent with not only the plain language of the statute but also the well-established tort principle that an intentional wrongdoer is jointly and severally liable with other wrongdoers for an innocent victim’s losses.
