Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018

The Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (AVAA) () is a United States federal law that changes how federal courts determine the amount of restitution victims of child pornography offenses receive.

The AVAA responds to the United States Supreme Court's call on Congress to clarify the meaning of the restitution statute.Paroline v. United States, 572 U.S. 434, 443 (2014). It aims to create an effective system suited for the unique nature of child pornography crimes. It is codified in various sections of Title 18 and Title 34 of the United States Code.18 U.S.C. §§ 1 NT, 2251 NT, 2252A, 2256, 2259, 2259A, 2259B, 3509, 3613; 34 U.S.C. § 20101. The primary section is 18 U.S.C. § 2259. The act became law on December 7, 2018.

Provisions The AVAA adds four key protections for victims of child pornography (also known as Child Sex Abuse Material, or CSAM) offenses:

It sets a floor of $3,000 in restitution that courts must order defendants to pay to victims, representing the defendant's relative role in the causal process that underlies the victim's losses.18 U.S.C. § 2259(b)(2)(B). It creates a Child Pornography Victims Reserve Fund within the federal Crime Victims Fund using assessments from defendants convicted of child pornography offenses and set-aside funds.34 U.S.C. § 20101(d)(6)(A). Victims of child pornography trafficking are entitled to receive a one-time payment of $35,000 from this fund instead of fighting for restitution if they so choose.18 U.S.C. § 2259(d). The court can assess the defendant for up to $17,000, $35,000, or $50,000, depending on the type of child pornography crime.18 U.S.C. § 2259A. See also Am. Jur. 2d Lewdness, Indecency, and Obscenity § 42 Victims’ Remedies. It clarifies that the "full amount of the victim's losses" for trafficking in child pornography cases includes any costs incurred, or reasonably projected to be incurred in the future, as a proximate result of all the trafficking in child pornography offenses that involve the same victim.18 U.S.C. § 2259(c)(2). This expands what counts as "total losses," and therefore increases the defendant's restitution amount for the defendant's relative role, as discussed above. It allows child pornography victims to enjoy equal rights with criminal defendants to review the child pornography in question in the case. This access will help victims prepare expert testimony and identify victims.

Background

Mandatory Victim Restitution Act The Mandatory Victim Restitution Act of 1996, codified in part at 18 U.S.C. § 3363A, requires courts to order that a defendant pay a victim restitution in certain cases, such as those that involve crimes of violence or pecuniary loss to the victim. Child pornography cases are included in this mandate, as codified in 18 U.S.C. § 2259.P.L. 104-132. Specifically, defendants convicted of sexual exploitation or other child abuse crimes must pay the victim the "full amount of the victim's losses."18 U.S.C. § 2259(b).

Paroline v. United States In 2014, the Supreme Court in Paroline v. United States analyzed the meaning of the "full amount of the victim's losses" definition in the then-current 1996 version of 18 U.S.C. § 2259(b). The defendant in the case was convicted of possessing child pornography featuring the victim, and the victim was attempting to recover restitution.Id. at 439. Economist Stan V. Smith, Ph.D., had calculated the economics losses for the plaintiff in the case. The central question was the appropriate causation standard to apply. The majority highlighted that the final category of victim's losses read, "any other losses suffered by the victim as a proximate result of the offense."Id. at 446 (citing 18 U.S.C. § 2259(b)(3)(F)) (emphasis added) (section 2259(b)(3)(F) has since changed to section 2259(c)(2)(F)). The majority then applied this language to all victim losses, rather than only the last category, to find an explicit requirement of proximate cause.Id. at 446. Thus, according to the majority, to recover restitution, a victim must prove both elements of proximate cause: causation in fact (the former event caused the latter) and proximate cause (sufficient connection to the result).Id. at 444.

The majority found proximate cause easily: "[T]he victim’s costs of treatment and lost income resulting from the trauma of knowing that images of her abuse are being viewed over and over" are direct and foreseeable results of child pornography crimes, including the defendant’s possession crime.Id. at 459.

However, the majority did not find causation in fact. The traditional causation standard is but-for causation, which would lead to no losses being a proximate cause of the defendant's conduct.Id. at 450. The victim and the government advocated for applying an aggregate causation standard for causation in fact, derived from tort law, which finds causation in fact when a defendant's conduct, combined with conduct by other persons, is "more than sufficient to cause the harm."Id. at 451–52 (quoting 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 27, Comment f, pg. 380-81 (2005). The majority chose neither. Rather, the majority held that where losses can be shown but it is impossible to trace a particular amount of the losses to the individual defendant, "a court applying § 2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses."Id. at 458.

Chief Justice Roberts and Justice Sotomayor wrote separate dissents, both criticizing the statute and calling on Congress to amend it. Justice Sotomayor's dissent argued for applying the aggregate causation standard and holding the defendant liable for all of the victim's losses for harm from all defendants.Id. at 475–76 (Sotomayor, J., dissenting). At the end, she suggested that "Congress might amend the statute . . . to include the term 'aggregate causation.'"Id. at 488. She also suggested that Congress might enact minimum restitution amounts, such as the statutorily imposed $150,000 minimum civil remedy for child pornography victims under 18 U.S.C. § 2255.Id. (citing 18 U.S.C. § 2255).

Aftermath of Paroline Critics of the Paroline opinion argued that it muddied restitution decisions in child pornography cases throughout the country due to a lack of guidance on how to determine how much restitution particular possessor defendants owed particular victims.Paul G. Cassell & James R. Marsh, The New Amy, Vicky, and Andy Act: A Positive Step Towards Full Restitution for Child Pornography Victims, 31 Fed. Sentencing Reporter (forthcoming 2019) (manuscript at 6) (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3317733). Many lower courts found that the majority’s rules that the amount should not be severe, token, or nominal, and should be reasonable and circumscribed,Paroline, 572 U.S. 434, 458–59 (2014). were not useful in practice. Some examples of lower court cases trying to apply the Paroline factors are below. In United States v. Crisostomi, a district court judge in Rhode Island explained:United States v. Crisostomi, 31 F. Supp. 3d 361, 364 (D.R.I. 2014) (emphasis added) (citations omitted). In this Court’s opinion, while some of the Paroline factors are determinable with some precision, a number of other factors are virtually unknown and unknowable, regardless of the detail available in the record. For example, how is a district judge to make a 'reliable estimate of the broader number of offenses involved” when even the U.S. Supreme Court admits parenthetically that “most of whom will, of course, never be caught, or convicted?' It appears to this Court that some of the factors the Supreme Court suggests be considered are at best difficult, and at worst impossible to calculate in this case as in most similar cases.In United States v. Reynolds, a district court judge in the Eastern District of Michigan stated:United States v. Reynolds, 2014 WL 4187936, at *5–6 (E.D. Mich. Aug. 22, 2014).Paroline suggests that district courts, ‘as a starting point, determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images' . . . . [T]he Court believes . . . it is simply not possible for the Government to show, ‘as a starting point,’ the amount of losses caused by the ‘continuing trafficking’ in Cindy and Vicky’s images. This theoretical starting point will simply not exist in many cases.In United States v. Galan, the Ninth Circuit commented:United States v. Galan, 804 F. 3d 1287, 1291 (9th Cir. 2015) (emphasis added).[T]his area, in which Congress has adopted a scheme that at least approaches the limits of fair adjudication despite attempts by the courts to avoid caprice, cries out for a congressional solution.In United States v. Austin, a district court judge in Nevada mentioned:United States v. Austin, 2015 WL 5224917, at *2 (D. Nev. Sept. 8, 2015).Some courts have difficulty determining a starting point for the losses caused by the “continuing trafficking” of images. . . . Paroline is of limited use because no logical starting point can be determined.In United States v. Shultz, a district court judge in Massachusetts discussed the potential for Congress to improve consistency in the restitution system:United States v. Shultz, 2015 WL 5972421, at *3 n.2 (D. Mass. Oct. 14, 2015) (emphasis added).Congress is currently considering a[sic] enacting a law that would provide for a graduated system of restitution for victims of child pornography beginning with a minimum amount of $25,000 for possession. If enacted, this law would eliminate much of the present variability in victim restitution awards.These cases, along with Justice Sotomayor's dissent in Paroline, served as a call to action for Congress. Congress' response will be explored in the legislative history section below.

Name of the Act The AVAA is named after three victims of some of the most widely distributed child pornography series in the world.Statements on Introduced Bills and Joint Resolutions, Congressional Record S2797, S2798 (May 7, 2014), https://www.congress.gov/113/crec/2014/05/07/CREC-2014-05-07-pt1-PgS2797.pdf. All three victims have expressed their support for the bill in statements.Senator Hatch Introduces the Amy Vicky & Andy Child Pornography Victim Assistance Act of 2017, Marsh Law Firm PLLC (Nov. 16, 2017), https://childvictims.us/senator-hatch-introduces-the-amy-vicky-andy-child-pornography-victim-assistance-act-of-2017/#.XPOal1NKg0p.

Legislative history

Timeline Although the AVAA became law four years after Paroline, Congress had been trying to address the courts' requests for years. Senator Hatch, who introduced the AVAA, tried to get similar legislation passed two times before the AVAA succeeded. A timeline for all three bills is below.