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Lessons in proximate cause

There are restitution claims, and then there are restitution claims. Last week I was critical of the 8th District's decision in Strongsville v. Kane, in which Kane had pled guilty to criminal mischief based on his having damaged a board in a neighbor's fence, only to have the court impose a restitution award of $1800 when the neighbor came in and claimed that Kane had actually damaged 133 boards over a five-month period.

But that's a grain of sand in comparison to the restitution that a young woman identified only as Amy is requesting: a total of nearly $3.4 million. That's a lot of coin, you say. Was Amy the victim of some massive stock fraud, perhaps?

No. Amy's the "star" of what's known in the world of child pornography as "the Misty series," videos and images of her taken by her uncle while he sexually abused her when she was a little girl. That was over a decade ago, and the pictures are still showing up. Amy's claim for restitution isn't directed at her uncle, who's now in Federal prison. It's directed at anybody who's charged with child pornography, and whose cache of the stuff includes videos or pictures of Amy.

As I've written before, just about everybody who matters seems to have agreed that there's no punishment too harsh for child molesters, and that's spilled over to people who get involved with child pornography. So back in 2004 Congress passed the Victim's Rights Act, which included a provision requiring courts to award victims of child sex abuse "the full amount of the victim's losses." It also required the government to keep victims of crimes apprised of the status of their cases. The National Center for Missing and Exploited Children, created by Congress in 1984 and primarily funded by the Justice Department, has accumulated a database of pictures of children featured in pornographic materials, and attempts to match them up with the actual victims. The NCMEC has identified over 35,000 images of Amy's abuse in some 3,200 child pornography cases since 1998. The government notifies Amy each time she shows up another child porn prosecution. She's received more than 800 notices since 2005.

She hired a lawyer, James R. Marsh, who began intervening in Federal prosecutions and demanding restitution. The package sent by Marsh includes a victim-impact statement by Amy, a psychological evaluation, and an economist's summary showing that her damages -- counseling, diminished wages, and attorney's fees -- came to $3,367.854. Marsh claims that she's entitled to be awarded that sum from every person who possessed even a single image of her, until the full amount is paid.

But didn't the statute say that compensation was to be awarded to victims of "child sex abuse"? Yes, but that doesn't mean only her uncle can be ordered to pay restitution. The courts have consistently held that children of sex abuse are "revictimized" by the mere possession of their images by others: dissemination of the images perpetuates the abuse, it invades the child's privacy, and it may be said to have instigated the original production of child pornography, under the theory that if nobody wanted it, nobody would produce it. Marsh's strategem has paid off so far; one defendant, an executive at Pfizer, paid $130,000, and Marsh's efforts in his first year earned Amy $170,000. And there's more to come: Marsh has filed claims for restitution in some 350 cases.

Last year the 5th Circuit made a ruling that could be a big help. The statute at issue, the Crime Victims Rights Act, requires victims of child sex abuse to be awarded "the full amount of the victims's losses," then includes a laundry list of what those losses might be: medical services, therapy, lost income, attorneys fees. And then, of course, there's a catchall: "any other losses suffered by the victim as a proximate result of the offense." The 5th Circuit held that the proximate cause requirement applied only to "any other losses"; there was no requirement that the victim show that her medical expenses, etc., were directly related to the offender's conduct. The panel remanded the case back to the lower court to determine how much of the full $3.4 million Amy was requesting should be paid by the defendant, Doyle Paroline, whose trove of hundreds of images of child sexual abuse included two of her.

Whatever the merits of the 5th Circuit's exegesis of the statute, the argument was correctly focused on the concept of proximate cause. And here Amy has run into trouble with her argument that anyone who possesses so much as a single image of her can be held accountable for the entirety of her suffering. Just a couple months ago the 11th Circuit vacated a $3 million restitution award to her, and remanded the case back to the district court to determine whether mere possession of the images was the proximate cause of her injuries. A few months later, the 2nd Circuit vacated an award of $48,483 to Amy, noting that the defendant in that case hadn't even been arrested at the time the doctor who testified about Amy's damages had evaluated her. "In the absence of evidence linking [defendant's] possession to any loss suffered by Amy, we cannot agree with the magistrate judge's conclusion that [defendant's] conduct remains a substantial cause of Amy's harm."

At first blush, the 2nd and 11th Circuits would seem to have the better of the argument. Restitution is the civil- law concept of compensation grafted onto the criminal law, and carries with it the concept of proximate cause. Justice is intertwined with the fairness, and if something doesn't sound fair, we recoil from it. Limiting the compensation one has to pay for committing a wrong to the damages he could have reasonably foreseen is fair. There's no way the train attendant could have foreseen that the guy he was helping onto the train was going to drop a package which contained explosives which detonated and knocked over the pole that fell onto Mrs. Palsgraaf at the other end of the platform, so it's not fair to make the train company pay for that.

But there's an argument for the other side, too. There is a reason to treat the concept of proximate cause much more loosely, if at all, in the criminal context. The train attendant was doing nothing wrong, nor did he intend to do so, and so it's fundamentally unfair to punish him. But when Doyle Paroline was watching his pictures of seven-year-old children being defiled in unimaginable ways, it had to have dawned on him that harm was being caused to those seven-year-old children, and suddenly it doesn't seem quite so unfair for him to be held responsible for that harm.

But still... $3.4 million? Forgive me for saying so, and with all due apologies to Amy, but there's a slightly mercenary quality to all this. And it may be counterproductive for the victims; as the author of this paper argues, this "royalty-type approach to restitution, rather than restoring victims and encouraging them to move forward with their lives, roots victims in their abuse experience, potentially causing additional psychological harm."

Be that as it may, until this is sorted out a little better, that's not likely to dissuade victims from bringing claims. Three months ago, a defendant sentenced to five years in Federal prison for possessing child porn was also ordered to pay restitution of $3,150 to cover the therapy sessions of "Vicky," who also received an award of $12,500 in an earlier Florida case, and $3,000 in a Montana case...

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