Section 2259 restitution claims and child pornography possession.

• Author: McLeod, Dina

In 2009, a child pornography victim brought a criminal restitution claim against a defendant who possessed images of her abuse. The statutory provision authorizing restitution, 18 U.S.C. [section] 2259, had never before been used to bring a claim against a defendant who had only possessed, rather than produced or distributed, child pornography ("child pornography possession defendants"). The federal courts have not developed a consistent approach to resolving Section 2259 claims involving such defendants.

This Note argues that two conceptions of traditional proximate cause doctrine can provide a framework for analyzing such claims. It examines Section 2259 claims using both a policy-based view of proximate causation and a view based on the relationship between the victim and the defendant. This Note concludes that, using either approach, current Section 2259 claims against child pornography possession defendants fail to prove proximate causation.

TABLE OF CONTENTS INTRODUCTION I. APPLYING SECTION 2259: THE LEGAL QUESTION A. The Statute: Section 2259 B. Applying Section 2259: Inconsistent Results C. Why Federal Courts Struggle in Applying Section 2259 to Child Pornography Possession Cases II. THE PALSGRAF FRAMEWORK: PLACING LIMITS ON THE APPLICATION OF SECTION 2259 THROUGH THE USE OF CLASSIC PROXIMATE CAUSATION DOCTRINE A. Judge Andrews' s Dissent: Proximate Causation as an Expression of Policy Concerns B. Why Exclude Child Pornography Possession Defendants from Section 2259 Liability? III. SPECIFIC DUTIES: THE CARDOZO FRAMEWORK A. Relational Duties B. Is Child Pornography Possession an Individual or Societal Harm ? C. Defamation Law: A Helpful Analogy IV. SOLUTIONS: HOW CHILD PORNOGRAPHY VICTIMS CAN PURSUE k REMEDY IN CIVIL COURT A. Tort Claims B. Restitution Claims CONCLUSION INTRODUCTION

On March 27, 2008, Alan Hesketh was charged with possessing, receiving, and distributing hundreds of images of child pornography. (1) Seven months later, his prosecution took an unexpected turn. (2) An abuse victim depicted in some of the images possessed by Mr. Hesketh requested restitution from the defendant under a provision in the Violence Against Women Act. (3)

In the restitution hearing, Senior Judge Warren Eginton of the District Court of Connecticut noted, "This is an unusual case." (4) The court explained:

[I]t does not appear that any court has ever awarded restitution for offenses involving sexual exploitation of children or child pornography, when the defendant did not also participate in this sexual exploitation of the children. On the contrary, in every case in which a court awarded restitution, the defendant also participated in the sexual exploitation that produced the material.... (5) The abuse victim, now in her twenties, identified herself as Amy. (6) Amy claimed that people who viewed images of her abuse were responsible for her perpetual revictimization. (7) She sought approximately $3.4 million to pay for her therapy costs and to compensate her for any future loss of wages. (8) Judge Eginton agreed that the defendant had caused some compensable harm to the victim and ordered a restitution award of $200,000. (9) The defendant settled with Amy for $130,000. (10) Amy continues, however, to seek restitution from hundreds of defendants in the federal court system." She is one of thousands of identified child pornography victims who may seek restitution under the same provision in the Violence Against Women Act. (12)

This Note addresses the legal question presented by this novel restitution claim: Should child pornography possession defendants be held liable for damages (13) to the individuals depicted in the images they possess? The Violence Against Women Act (14) authorizes restitution for victims of child pornography possession. But until recently, no individuals had pressed such claims against child pornography possession defendants. (15) District court judges have been unable to develop a consistent framework for addressing the underlying issue: whether the link between child pornography possession and the harm to child pornography victims is strong enough to support a claim for damages.

This Note argues that classic proximate causation doctrine, as developed in the seminal Palsgraf (16) decision, does not support the application of 18 U.S.C. [section] 2259 ("Section 2259") to child pornography possessors. This Note does not dispute that victims of child pornography suffer serious injuries from their abuse, but rather questions the legal sufficiency of the link between the child pornography possessor and the victim. Part I examines the relevant statutory provision and the inconsistency of federal district courts in applying it. Part II introduces the policy-based proximate cause framework advocated by Judge Andrews's Palsgrafdissent and explores the policy reasons for refusing to extend civil-type (17) liability to child pornography possession defendants. Part III discusses the relational theory of proximate cause developed in Judge Cardozo's majority opinion in Palsgraf and argues that the relationship between a particular child pornography possessor and the particular individual depicted in the illicit image does not support liability for damages. Part HI argues that the crime of child pornography possession is analogous to the tort of defamation and concludes that the divergent manner in which these two areas of law treat possession suggests that child pornography possession is criminalized because of a general revulsion and fear of those who possess such images, not because of harms caused to specific victims. Part IV argues that civil tort or restitution claims provide several advantages for child pornography victims seeking civil redress and concludes that such victims should seek a remedy in the civil system.

1. APPLYING SECTION 2259: THE LEGAL QUESTION

   Section 2259 requires a judge to order restitution for certain losses suffered by victims of child pornography possession offenses (and a range of other child sexual exploitation offenses). (18) Courts must determine whether the victim was harmed "as a result of" the offense. (19) However, courts have not yet developed a consistent approach to addressing when a victim was harmed "as a result of" the crime, at least when applying Section 2259 to those defendants convicted only of child pornography possession. The hesitancy of some judges in awarding this type of restitution evinces a concern with the potential difficulty in administering such claims, as well as a concern that the causal link between the victim's harm and the defendant's conduct is too tenuous. (20)

   1. The Statute: Section 2259

      Victims may seek restitution pursuant to the Mandatory Restitution for Sex Crimes section of the Violence Against Women Act of 1994, which mandates restitution for certain offenses relating to the sexual exploitation of children. (21) Possession of child pornography is a violation of 18 U.S.C. [section] 2252(a)(4)(B) (knowingly possessing, or knowingly accessing with intent to view, child pornography). (22) This violation falls plainly within the scope of Section 2259, which applies to "any offense under this chapter [18 U.S.C. [section][section] 2251-2260]." (23)

      Section 2259 states that "the court shall order restitution" for any applicable offense and "shall direct the defendant to pay the victim ... the full amount of the victim's losses" (24) The statute defines a "victim" as "the individual harmed as a result of a commission of a crime under this chapter [18 U.S.C. 99 2251-2260]" (25) It provides that the "full amount of the victim's losses" include any costs incurred by the victim for:

      (A) medical services relating to physical, psychiatric, or psychological care;

      (B) physical and occupational therapy or rehabilitation;

      (C) necessary transportation, temporary housing, and child care expenses;

      (D) lost income;

      (E) attorneys' fees, as well as other costs incurred; and

      (F) any other losses suffered by the victim as a proximate result of the offense. (26)

      The statute states that "[t]he issuance of a restitution order under this section is mandatory." (27) It also forbids the court from declining to issue an order due to "(i) the economic circumstances of the defendant; or (ii) the fact that a victim has, or is entitled to, receive compensation for his or her injuries from the proceeds or insurance or any other source." (28)

      Section 2259 restitution orders are issued pursuant to the procedures outlined in 18 U.S.C. 9 3664. (29) It is noteworthy that the government plays a necessary role in requesting restitution. (30) Thus, a victim cannot bring a restitution claim herself. In practice, victims can send their claims to the appropriate U.S. Attorney's office and request that a prosecutor present the claim to the court. For example, Amy's lawyer "has automated the process and e-mailed Amy's filings to United States Attorneys in 350 cases." (31) However, the decision to request restitution rests with the government, and prosecutors may decline to bring the restitution claim. (32)

   2. Applying Section 2259: Inconsistent Results

      This seemingly straightforward statutory provision has created serious inconsistencies in the U.S. district courts when applied to child pornography offenses that do not involve direct abuse. At least one court has awarded the full amount of the requested restitution. (33) Other courts have declined to award any restitution at all. (34) The outcomes can therefore be placed into two broad categories: award of restitution (35) and denial of restitution (36) A brief survey of these outcomes will illustrate the difficulty district courts have faced in developing a coherent approach to this issue.

      A few notable trends stand out. First, the cases are geographically diverse; the courts that have addressed Section 2259 span the entire country, from Hawaii to Maine. (37) Second, while restitution awards tend to be on the "low" end...