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Federal Courts Conflicted Over Restitution in Child Pornography Cases
The Violence Against Women Act of 1994(“VAWA”) is a remedial statute that contains specific categories of compensable losses. The VAWA was codified in 18 U.S.C. § 2259. The statute has been used in recent years by adults, who were victimized as children by child pornography, to apply for and receive restitution from defendants convicted of possessing child pornography which contained images of these adults as sexually exploited children. The statute is mandatory, imposing a duty on a federal sentencing judge to order any defendant convicted of a child abuse-related offense to pay restitution to the victim(s) of that offense. A restitution order is required even if the defendant’s deprived economic circumstances make payment impossible, and even if the victim has received compensation from some other source, such as a civil judgment. The statute’s categories for which compensable losses may be assessed are:
- “Medical services relating to physical, psychiatric, or psychological care” for the victim;
- “Physical and occupational therapy or rehabilitation” for the victim;
- “Attorney fees, as well as other costs incurred” by the victim; and
- “Any other losses suffered by the victim as a proximate result of the offense.”
But how to determine the appropriate amount of restitution under this demanding remedial statute has proven to be a recurring problem for the federal courts.
The Sixth Circuit this year has had two separate opportunities to address this complex issue. In the most recent case (April 2013), forensic examinations of Christopher Hargrove’s computer revealed more than 800 images and sixteen videos depicting sexual exploitation of children. Law enforcement officials sent Hargrove’s collection of pornography to the National Center for Missing & Exploited Children—a non-profit organization granted authority by Congress to work with law enforcement to help identify the victims of child abuse. The NCMEC identified three victims in Hargrove’s collection who have filed hundreds of restitution requests under the VAWA.
Attorneys for these three victims had compiled expert medical reports and other materials, such as economic loss reports, to show that their clients collectively incurred approximately $3.6 million, primarily for “psychological treatment.” The sentencing judge in the Hargrove case crafted a restitution order requiring him to pay each of these victims $3,000. The judge enhanced his order by saying Hargrove must pay each victim $150,000 under “joint and several liability” if “it turns out these victims aren’t getting the care that they need for lack of money.” These victims had already secured restitution orders exceeding hundreds of thousands of dollars from defendants in the Government’s database. Aware of these prior orders, the judge with his $3,000 order essentially said the Government had not shown a causal link between Hargrove’s possession and harm the victims had suffer; therefore, he was trying to apportion an equitable payment amount against Hargrove based on what the victims had received from other defendants.
Four months before deciding Hargrove, the Sixth Circuit decided the combined cases of James D. Gamble and Shawn Crawford. Gamble was convicted of one count of possessing child pornography while Crawford was convicted of one count of receiving child pornography. In the pornographic collection of both men were images of “Vicky”—one of the three victims in the Hargrove case who has filed numerous VAWA restitution requests. The sentencing judge in Gamble’s case ordered the defendant to pay $1,002,766.85 in restitution to Vicky while the sentencing judge in the Crawford case ordered the defendant to pay $1,002,076.85 to the victim. The judges said the payments would be “jointly and severally” shared with other defendants convicted of possessing Vicky’s images.
The disparity in the restitution amounts in the Hargrove case compared to those in the Gamble/Crawford cases is not only disturbing but is a clear indication that federal judges across the country need guidance so as to consistently apply the VAWA in child pornography cases.
The only explanation for the restitution disparity in these three cases is fairly evident. The sentencing judge in Hargrove’s case believed the VAWA required a showing of a causal link between the possession of the pornography and the harm it caused the victim; that the Government bore the burden of making this showing. The sentencing judges in the Gamble/Crawford cases did not believe such a showing was required; that possession itself constituted harm.
The Sixth Circuit in Gamble/Crawford reversed the restitutions orders in those cases, saying the Government indeed bears the burden to “show that the costs incurred by the victim were proximately caused by the defendant’s offense.” In other words, the defendant’s possession was the “cause-in-fact” of the victim’s harm—and that the harm had to be “reasonably foreseeable.”
Other circuits have taken a more expansive view; namely, that there must be actual proof of a causal link between a defendant’s possession and a victim’s harm. The Sixth Circuit expressly rejected this view in Gamble/Crawford, finding that a “cause-in-fact requirement does not necessarily mean that defendants of whom Vicky is unaware have not caused her losses … Vicky’s losses result from the knowledge that her image is being generally circulated, and a district court found that defendants like [Gamble/Crawford] contributed to that knowledge.
The Second Circuit recently adopted a similar view in the case of Avery Lundquist which we discussed in a recent post; a view that more closely resembles the Fifth Circuit’s singular and more restrictive view that the Government need only show possession to establish harm under the VAWA. The Fifth Circuit view is currently pending before the Supreme Court which will hopefully sort through these different circuit views to determine the appropriate standard for determining harm under the VAWA.
The Gamble/Crawford decision offered a significant qualification to its position that the knowledge by a victim that her images are being circulated is the “cause-in-fact” of any harm she may have suffered. That is, the Government must bear the burden of showing that a restitution award under the VAWA is “appropriate,” and if the Government satisfies this burden, the sentencing judge “must” then consider that a defendant is not responsible for any harm the victim may have suffered prior to his possession. Put simply, a defendant is only liable for the costs of a victim’s harms “clearly traceable” to him—possession of a victim’s images prior to the defendant’s possession cannot be attributed to him for restitution purposes. The Sixth Circuit in Hargrove articulated how this analysis should be applied:
“Undertaking such an analysis, the district court would first determine ‘the pool of a victim’s provable losses that are not traceable to a single defendant using the proximate cause standard’ elucidated in [Gamble/Crawford] and then divide that figure by the number of “convicted possessors” supplied by the government from its database of convicted child pornography defendants. But ‘different divisors may be reasonable,’ and the government’s ‘apportionment proposal is not necessarily the only way to calculate restitution’ in these kinds of cases. District courts may consider other formulas or procedures for allocating restitution to redress the victims’ injuries, keeping in mind that the method chosen must ‘fairly implement Congress’s goals.’ Courts may not apportion restitution by imposing joint and several liability, as was done [in Hargrove].”
We agree wholeheartedly that a defendant should not be held liable for any harm caused by other defendants who possessed the illegal images of the child’s abuse before his offense occurred. We would differ, however, with the Sixth Circuit on the issue of joint and several liability. It is a long standing equitable principal that there should only be one recovery for one harm and the resulting loss.
This is a terribly painful crime for the victims, who may suffer physical and emotional damage for the remainder of their lives. It is a grotesque example of man’s depravity against the most vulnerable in our society, and should be punished as such. However, it is such cases, those that cause intense aversion and violent reaction, which create unfair and irrational law. It is the courts role to temper emotional response and judge according to law and principles of equity and fairness. We await the Supreme Court’s response to this very difficult issue.
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It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
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Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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He explained my case better then any other lawyerPositive
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Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
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I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
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It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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Quick to action and helpful and knowledgeable with entertainment industry based issues!
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Responded on a holiday week. Very knowledgeable and reassuring.
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Very professional
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I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
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The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
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From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
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I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
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John and Chris are true professionals! Love those guys like family!
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Mr. Floyd and his team are very knowledgeable, informative, and helpful.
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A team you can depend on to stand up and fight for you to prove the truth the whole truth!
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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