In January 2015 Senator Orin Hatch, along with numerous co-sponsors, introduced the “Amy and Vicky Child Pornography Victim Restitution Improvement Act”. The bill, which has already passed the Senate, would amend the federal criminal code to expand the definition of “full amount of the victim’s losses” for purposes of provisions governing mandatory restitution of victims of offenses involving sexual exploitation and other abuse of children to include medical services, physical and occupational therapy or rehabilitation, and lost income for the victim’s lifetime, as well as any losses suffered by the victim from any sexual act or contact or sexually explicit conduct in preparation for or during the production of child pornography depicting the victim involved in the offense.
Changes to Victim Restitution in Child Pornography Cases?
September 17, 2015
Allegations Involving Minors, Federal Court, Sentencing, Sex Crimes
The bill would also set forth guidelines for determining restitution where the victim of a specified child pornography offense was harmed by one defendant (requiring restitution for not less than the full amount of the victim’s losses) or by more than one defendant (requiring restitution for not more than the full amount of the victim’s losses and not less than specified minimum amounts for certain offenses).
Criminal defense attorneys successfully fought outrageous restitution awards sought by Vicky and Amy all the way to the United States Supreme Court. What this bills functionally seeks to do is reverse the high court’s ruling in Paroline. Prior to the Paroline decision Amy and Vicky were had received millions of dollars of awards in restitution. In many cases these awards were not joint and several with other co-defendants. While no one can deny the harm to the victims of child pornography, making criminal defendants liable for millions of dollars of alleged damaged does not further the cause of justice.
Some commentators have speculated the high restitution amounts are a warning to people considering viewing child pornography. Those assertions are contrary to scientific studies showing what criminal defense attorneys have been arguing for years – general deterrence is a myth. In a study published by Gary Kleck and J.C. Barnes in 2013 entitled “Deterrence and Macro-Level Perceptions of Punishment Risks: Is There a “Collective Wisdom”?” [59 Crime & Delinquency 1006] the authors concluded “[r]egardless of whether one focuses on perceptions of individual persons or the average of perceptions among large populations, there is generally no significant association between perceptions of punishment levels and the actual levels of punishment that the criminal justice system achieves. This in turn implies that increases in punishment levels do not routinely reduce crime through general deterrence mechanisms, because the fundamental link between actual punishment levels and perceptions of punishment levels appears to be weak to nonexistent.”
