This presentation discusses federal criminal and civil remedies for victims of child pornography and online exploitation under United States law including restitution and Masha's Law under 18 USC 2259 and 18 USC 2255.

1. IMAGE EXPLOITATION
FEDERAL REMEDIES FORCHILD EXPLOITATION
JAMES R. MARSH

2. LEGAL INTERVENTIONS
• Child pornography is like drug crimes: production,
distribution, trafficking, possession, plus facilitating,
advertising, and enticing
• Mandatory minimum sentences in the federal courts,
most state courts are much more lenient
• 2/3 of the criminal prosecutions are in state courts
• No federal “rape” statute – child pornography
prosecutions only address production of the images,
not hands-on acts
• Federal restitution for victims and state crime victim
funds
• Both federal and state civil remedies for victims

3. FEDERAL CHILD PORNOGRAPHY VICTIM
REMEDIES
• 18 U.S.C. 2259 – federal criminal remedy (restitution)
• 18 U.S.C. 3771 – Crime Victims’ Rights Act of 2004
• 18 U.S.C. 3509 – Child Victims’ Rights Act (privacy provisions)
• 18 U.S.C. 2255 – federal civil remedy (Masha’s Law)
• 18 U.S.C. 2252A(f) – additional federal civil remedy

4. CRIMEVICTIMS RIGHTS ACT OF 2004
• Federal Crime Victims’ Bill of Rights
• Timely notice of offenses and court proceedings
• Right to be reasonably heard (victim impact statement)
• Right to confer with the attorney for the government
• Right to full and timely restitution

5. THE VICTIM'S
ATTORNEY
• Receive communications
which might upset the client
• Documentation for restitution
• Refer to treatment and
services
• Advocate for client
• Ensure client’s best interests

6. RESTITUTION BASICS UNDER 18 U.S.C. 2259
• “Victim” is the person harmed as a result of the child
pornography crime
• Restitution is mandatory
• Victim is entitled to the “full amount” of their losses
• Pecuniary losses – not pain and suffering or emotional
damages

7. CONTENTS OF
RESTITUTION
REQUESTS
Forensic Evaluations which may
include:
• Psychological
• Medical
• Vocational / Educational
• Economic / Lost Income
Other Expenses such as
transportation, child care, proximate
result of the crime

8. PAROLINE V. UNITED STATES
• Supreme Court granted cert on June 27, 2013
• What, if any, causal relationship or nexus between the
defendant's conduct and the victim's harm or damages must
the government or the victim establish in order to
recover restitution under 18 U.S.C. 2259
• Oral argument January 22, 2014
• Decision April 23, 2014

9. ROADTOTHE SUPREME COURT
Circuit Case Date
First Chiradio / Kearney July 2012 / February 2012
Second Aumais / Lundquist September 2011 / September 2013
Fourth Burgess July 2012
Fifth Paroline / Wright November 2012
Sixth Gamble / Crawford February 2013
Seventh Laraneta November 2012
Eighth Fast March 2013
Ninth Kennedy / Cantrelle October 2012
Tenth Benoit April 2013
Eleventh McDaniel / Webb January 2011 / September 2011
DC Monzel April 2011

10. JUSTICE KENNEDY WROTETHE MAJORITY DECISION
A court 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.

11. PAROLINE MAJORITY
Amount should not be severe
Amount should not be token, nominal, or trivial
Award should be reasonable and circumscribed
Victim should someday collect for all her child pornography losses
“Rough guideposts” with discretion and sound judgment,
but no “caprice”

12. PAROLINE DISSENT
Unfortunately, the restitution statute that Congress wrote for child
pornography offenses makes it impossible to award that relief to
Amy in this case.…Congress set up a restitution system sure to fail
in cases like this one.…[I]t would be a mistake…to lead readers to
conclude that…Congress has done justice for victims of child
pornography. The statute as written allows no recovery; we ought to
say so, and give Congress a chance to fix it.
Justices Roberts, Scalia, and Thomas

13. CRISOSTOMI (RI JULY 2014)
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. The Court is not entirely comfortable making such
calculations in this or similar situations but believes it
compelled to do so by the U.S. Supreme Court opinion
in Paroline.

14. REYNOLDS (EDMI AUGUST 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
‘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

15. MINER (NDNY SEPTEMBER 2014)
As an initial matter, the Court notes that of the handful of
district courts that have grappled with the matter of
restitution in child pornography cases post-Paroline, several
have expressed their concern with the lack of precise
guidance from Congress and the Supreme Court in deciding
restitution awards in these circumstances…. Having now
grappled with the same issues, this Court finds that such
concerns are well-founded.

16. AUSTIN (DNV SEPTEMBER 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
point can be determined.

17. AYER (DNV NOVEMBER 2015)
While the Paroline factors offer some guidance, the practical
application of those factors is extraordinarily difficult.

18. MILLER (EDMI NOVEMBER 2015)
It is extremely difficult to quantify the loss sustained by
these minor victims.

19. DILEO (EDNY NOVEMBER 2014)
Though commentators may quarrel over the astuteness of the
Supreme Court’s professed confidence in the skill of the
district courts to divine a true course through this
thicket…the task seems akin to piloting a small craft to safe
harbor in a Nor’easter.…. The task of charting passage
through these unknown waters is overwhelming.

20. CAMPBELL-ZORN (MT DECEMBER 2014)
These tools provided by Paroline, while seemingly useful in a
theoretical sense, have proven to have very difficult, and
very limited, practical application.

21. GALAN (DOR JULY 2014)
The current statutory process for restitution does not fully
compensate losses suffered by child pornography victims and
may, in fact, dissuade victims from seeking restitution; the
end result is hardly worth yet another reminder of their
continued exploitation. The court cannot remedy this
problem. Rather, it is up to Congress to develop a system to
truly compensate child pornography victims for the losses
they continue to suffer.

22. SCHULTZ (DMA OCTOBER 2015)
Congress is currently considering a 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.

23. GALAN (9TH CIRCUIT 2015)
We do agree that this 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.

24. GALAN (9TH CIRCUIT 2015)
In order to obtain restitution, child pornography victims in
the Ninth Circuit now have to prove—in addition to the
confounding Paroline factors—”many [additional] factors”
such as:
• the egregiousness of the original [sex] abuse;
• how a victim can (or does) cope with that kind of [rape and
sexual abuse] abuse when distribution of images does not
follow;
• and the particular victim’s own reactions to the various
traumas to which the victim has been subjected;

25. AMY, VICKY, AND ANDY CHILD PORNOGRPHY
VICTIM ASSISTANCE ACT OF 2018
• Intent of Congress that victims of child pornography
be compensated by every perpetrator who contributes
to their anguish (APSAC statement is also cited in the
Congressional findings)
• Restitution in “an amount that reflects the
defendant’s relative role in the causal process”
(Paroline standard) but no less than $3000
• Defined monetary assistance of $35,000 one-time
payment for trafficking victims only (not production)
• Defendant assessments to fund + $10 million set aside
• Victim right to evidence
• Progress report and fund report after 2 years
• Signed into law on December 7, 2018

26. TIMELINETO PASSAGE
• April 23, 2014 – United State Supreme Court Paroline v. United States decided
• May 7, 2014 – Amy and Vicky Act introduced in Senate
• June 26, 2014 – Amy and Vicky Act introduced in the House
• July 30, 2014 – US Sentencing Commission: vast majority criminals pay zero restitution
• December 31, 2014 – AVA dies at the end of the Congressional session
• January 28, 2015 – AVA reintroduced in the House and Senate
• February 5, 2015 – AVA clears the Senate Judiciary Committee with bipartisan support
• February 11, 2015 – Senate passes the AVA 98-0
• March 19, 2015 – House Judiciary Crime Subcommittee holds hearing on the AVA
• December 31, 2016 – AVA dies again at the end of the Congressional session
• November 16, 2017 – Amy Vicky and Andy Act Introduced in the Senate (S.B. 2152)
• January 23, 2018 – Passed the Senate by Unanimous Consent
• September 28, 2018 – Passed the House by Unanimous Consent
• November 15, 2018 – Passed the Senate by Unanimous Consent
• December 7, 2018 – Signed by the President and becomes Public Law 115-299

27. DISAGGREGATION
American Professional Society on the Abuse of Children
“for the victims [of child pornography], the sexual abuse of
the child, the memorialization of that abuse which becomes
child pornography, and its subsequent distribution and
viewing become psychologically intertwined and each
compound the harm suffered by the child-victim.”

28. ROTHENBERG (11TH CIRCUIT 2019)
• A victim does not need to separate the harm caused by the original hands-on abuser
from the harm caused by distributors and possessors of images of the abuse;
Disaggregation is NOT required.
• A court is not required to follow other court’s decisions on restitution for a
particular victim, nor must it justify why it disagrees with other another court’s
restitution determination.
• A court should affirmatively recognize the defendant’s role as either producer,
distributor, or possessor.
• Evidence that a child pornography victim was aware of and specifically harmed by a
particular defendant is not required.
• Determining restitution is an “inexact science.”
• A declaration from the victim’s attorney outlining the likely costs of treatment
based on the attorney’s experience with eight other victims is sufficient to support
a restitution request of $100,000 for treatment.

29. WHITLEY (NDIL 2019)
CHILD TRAFFICKING CASE
• Chastises the government for an incomplete submission on behalf of the
victim.
• A victim need not use restitution for therapy or for any specific purpose:
“We compensate a victim with restitution, that is money – whether she
chooses to use the money in a particular way is up to her.”
• Restitution should cover a child’s losses over her lifetime. A minor victim
will certainly have future expenses.
• Recognizes physical health problems and scientific research on trauma.
• Among many authorities cites CDC study estimating > $200,000 lifetime per
victim burden of child sex abuse.
• Orders the court clerk to set up a trust for the four minor victims.

30. CIVIL REMEDIES
• Federal Statutory Remedies 18 U.S.C. 2255 / 18 U.S.C. 2252A(f)
• State Statutory Remedies in Florida, Kansas, Louisiana,
Nebraska, Nevada, New Jersey, Oklahoma, South Dakota
• Invasion of Privacy: Intrusion upon Seclusion / Intrusion into
Private Affairs / Public Disclosure of Private Facts
• Intentional Infliction of Emotional Distress
• Punitive Damages
• State R.I.C.O.

31. CREATIVE POSSIBILITIES
• Hidden causes of action in 18 U.S.C. 2255
• Review ALL the predicates (currently 14 separate provisions)
• New predicates being added all the time by Congress
• Courts have interpreted statute broadly with few
limitations

32. CIVIL REMEDIES UNDER 18 U.S.C. 2255
LAW UPDATED 30JANUARY 2018
• Clarifies that the $150,000 statutory damages clause is “liquidated damages”
• Clarifies that victims can elect “actual damages” OR $150,000 in “liquidated damages”
• Adds “other litigation costs reasonably incurred” to statutorily recoverable losses such as attorney’s fees
• Specifically allows courts to award punitive damages
• Specifically allows courts to award “such other preliminary and equitable relief as the court determines to be
appropriate”
• Extends the statute of limitations to 10 years after the victim turns age 18
• Adds a “reasonably discovered” provision to the statute of limitations – plaintiffs will have 10 years after they
reasonably discover “the violation” or “injury” to file their action
• Adds a provision providing for national venue
• Adds a provision providing for national service of process

33. MARSH LAW FIRM PLLC james@marsh.law ● 212-372-3030 ● www.marsh.law