[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2152 Reported in Senate (RS)]

<DOC>





                                                       Calendar No. 293
115th CONGRESS
  2d Session
                                S. 2152

 To amend title 18, United States Code, to provide for assistance for 
         victims of child pornography, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 16, 2017

 Mr. Hatch (for himself, Mrs. Feinstein, Mr. Grassley, Ms. Klobuchar, 
 Mr. Cornyn, Mr. Toomey, Mr. Boozman, Mrs. Gillibrand, Mr. Cotton, Mr. 
  Whitehouse, Mr. McCain, Ms. Murkowski, Mrs. Capito, Mr. Tillis, Mr. 
   Blunt, Mr. Blumenthal, Mr. Casey, Ms. Warren, Mrs. McCaskill, Mr. 
Hoeven, Mr. Merkley, Ms. Hirono, Mr. Kennedy, Mr. Cruz, and Ms. Harris) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

                            January 16, 2018

               Reported by Mr. Grassley, with amendments
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
 To amend title 18, United States Code, to provide for assistance for 
         victims of child pornography, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Amy, Vicky, and Andy Child 
Pornography Victim Assistance Act of 2017''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) The demand for child pornography harms children because 
        it drives production, which involves severe and often 
        irreparable child sexual abuse and exploitation.
            (2) The harms caused by child pornography begin, but do not 
        end, with child sex abuse because child pornography is a 
        permanent record of that abuse and trafficking in those images 
        compounds the harm to the child.
            (3) In Paroline v. United States (2014), the Supreme Court 
        recognized that ``every viewing of child pornography is a 
        repetition of the victim's abuse''.
            (4) The American Professional Society on the Abuse of 
        Children has stated that for 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''.
            (5) Victims suffer continuing and grievous harm as a result 
        of knowing that a large, indeterminate number of individuals 
        have viewed and will in the future view images of their 
        childhood sexual abuse. Harms of this sort are a major reason 
        that child pornography is outlawed.
            (6) The unlawful collective conduct of every individual who 
        reproduces, distributes, or possesses the images of a victim's 
        childhood sexual abuse plays a part in sustaining and 
        aggravating the harms to that individual victim. Multiple 
        actors independently commit intentional crimes that combine to 
        produce an indivisible injury to a victim.
            (7) It is the intent of Congress that victims of child 
        pornography be fully compensated for all the harms resulting 
        from every perpetrator who contributes to their anguish. Such 
        an aggregate causation standard reflects the nature of child 
        pornography and the unique ways that it actually harms victims.

SEC. 3. DETERMINING RESTITUTION.

    (a) Determining Restitution.--Section 2259(b) of title 18, United 
States Code, is amended--
            (1) in paragraph (1)--
                    (A) by striking ``The order'' and inserting 
                ``Except as provided in paragraph (2), the order''; and
                    (B) by striking ``as determined by the court 
                pursuant to paragraph (2)'' after ``of the victim's 
                losses'';
            (2) by striking paragraph (3);
            (3) by redesignating paragraph (2) as paragraph (3); and
            (4) by inserting after paragraph (1) the following:
            ``(2) Restitution for trafficking in child pornography.--If 
        the defendant was convicted for trafficking in child 
        pornography, the order of restitution under this section shall 
        direct the defendant to pay the victim (through the appropriate 
        court mechanism) an amount of restitution determined by the 
        court as follows:
                    ``(A) Determining the full amount of a victim's 
                losses.--The court shall determine the full amount of 
                the victim's losses that were incurred or are 
                reasonably projected to be incurred by the victim as a 
                result of the trafficking in child pornography.
                    ``(B) Determining a restitution amount.--After 
                completing the determination required under 
                subparagraph (A), the court shall enter an order of 
                restitution against the defendant in favor of the 
                victim in an amount which is not less than $3000 and 
                not greater than 1 percent of the full amount of the 
                victim's losses when the full amount of a victim's 
                losses are greater than $300,000.  between $3,000 and 1 
                percent of the full amount of the victim's losses.
                    ``(C) Termination of payment.--A victim's total 
                aggregate recovery pursuant to this section shall not 
                exceed the full amount of the victim's demonstrated 
                losses. After the victim has received restitution in 
                the full amount of the victim's losses as measured by 
                the greatest amount of such losses found in any case 
                involving that victim that has resulted in a final 
                restitution order under this section, the liability of 
                each defendant who is or has been ordered to pay 
                restitution for such losses to that victim shall be 
                terminated. The court may direct the victim to provide 
                information concerning the amount of restitution the 
                victim has been paid in other cases for the same 
                losses.''.
    (b) Additional Definitions.--Section 2259(c) of title 18, United 
States Code, is amended--
            (1) in the heading, by striking ``Definition'' and 
        inserting ``Definitions'';
            (2) by striking ``For purposes'' and inserting the 
        following:
            ``(4) Victim.--For purposes'';
            (3) by striking ``under this chapter, including, in the 
        case'' and inserting ``under this chapter. In the case'';
            (4) by inserting after ``or any other person appointed as 
        suitable by the court,'' the following: ``may assume the crime 
        victim's rights under this section,''; and
            (5) by inserting before paragraph (4), as so designated, 
        the following:
            ``(1) Child pornography production.--For purposes of this 
        section and section 2259A, the term `child pornography 
        production' means conduct proscribed by section 2251, section 
        2251A subsections (a) through (c) of section 2251, section 
        2252A(g) if at least one of the offenses listed in this section 
        is charged as part of a series of offenses (in cases in which 
        the series of felony violations involves at least 1 of the 
        violations listed in this section), section 2260(a), or any 
        offense under chapter 109A or chapter 117 that involved the 
        production of child pornography, as defined in section 2256.
            ``(2) Full amount of the victim's losses.--For purposes of 
        this section, the term `full amount of the victim's losses' 
        includes any costs incurred, or reasonably projected to be 
        incurred in the future, by the victim, and in the case of a 
        trafficking in child pornography conviction, as a proximate 
        result of all trafficking in child pornography offenses 
        involving the same victim, including--
                    ``(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 relevant losses incurred by the 
                victim.
            ``(3) Trafficking in child pornography.--For purposes of 
        this section and section 2259A, the term `trafficking in child 
        pornography' means conduct proscribed by section 2251(d), 
        2251A, 2252, 2252A, section 2252A(g) if at least one of the 
        offenses listed in this section is charged as part of a series 
        of offenses (in cases in which the series of felony violations 
        exclusively involves violations listed in this section), or 
        section 2260(b) ).''.
    (c) Clerical Amendment.--Section 1593(b)(3) of title 18, United 
States Code, is amended by striking ``section 2259(b)(3)'' and 
inserting ``section 2259(c)(2)''.

SEC. 4. DEFINED MONETARY ASSISTANCE.

    Section 2259 of title 18, United States Code, is amended by adding 
at the end the following:
    ``(d) Defined Monetary Assistance.--
            ``(1) Defined monetary assistance made available at 
        victim's election.--
                    ``(A) Election to receive defined monetary 
                assistance.--Subject to paragraphs (2) and (3), if the 
                defendant was convicted of child pornography 
                production, the victim of child pornography production 
                may choose to receive defined monetary assistance from 
                the Child Pornography Victims' Reserve established 
                under section 1402(d)(6) of the Victims of Crime Act of 
                1984.
                    ``(B) Finding.--To be eligible for defined monetary 
                assistance under this subsection, a court shall 
                determine whether the claimant is a victim of the 
                defendant who was convicted of child pornography 
                production.
                    ``(C) Order.--If a court determines that a claimant 
                is a victim of child pornography production under 
                subparagraph (B) and the claimant chooses to receive 
                defined monetary assistance, the court shall order 
                payment in accordance with subparagraph (D) to the 
                victim from the Child Pornography Victims' Reserve 
                established under section 1402(d)(6) of the Victims of 
                Crime Act of 1984.
                    ``(D) Amount of defined monetary assistance.--The 
                amount of defined monetary assistance payable under 
                this subparagraph shall be equal to--
                            ``(i) for the first calendar year after the 
                        date of enactment of this subsection, $35,000; 
                        and
                            ``(ii) for each calendar year after the 
                        year described in clause (i), $35,000 
                        multiplied by the ratio (not less than one) 
                        of--
                                    ``(I) the Consumer Price Index for 
                                all Urban Consumer (CPI-U, as published 
                                by the Bureau of Labor Statistics of 
                                the Department of Labor) for the 
                                calendar year preceding such calendar 
                                year; to
                                    ``(II) the CPI-U for the calendar 
                                year 2 years before the calendar year 
                                described in clause (i).
            ``(2) Limitations on defined monetary assistance.--
                    ``(A) In general.--A victim may only obtain defined 
                monetary assistance under this subsection once.
                    ``(B) Effect on recovery of other restitution.--A 
                victim who obtains defined monetary assistance under 
                this subsection shall not be barred or limited from 
                receiving restitution against any defendant for any 
                offenses not covered by this section.
                    ``(C) Deduction.--If a victim who received defined 
                monetary assistance under this subsection subsequently 
                seeks restitution under this section, the court shall 
                deduct the amount the victim received in defined 
                monetary assistance when determining the full amount of 
                the victim's losses.
            ``(3) Limitations on eligibility.--A victim who has 
        collected payment of restitution pursuant to this section in an 
        amount greater than the amount provided for under paragraph 
        (1)(D) shall be ineligible to receive defined monetary 
        assistance under this subsection.
            ``(4) Guardian ad litem.--
                    ``(A) In general.--In all cases alleging child 
                pornography production, the court shall appoint a 
                guardian ad litem, who shall be an attorney, for each 
                identified victim of the child pornography production, 
                pursuant to section 3509(h).
                    ``(B) Fees.--A guardian ad litem appointed pursuant 
                to this subsection may not charge, receive, or collect, 
                without court approval for good cause shown, any fees 
                or payment of expenses that in the aggregate exceed 10 
                percent of any defined monetary assistance payment made 
                under this subsection.
                    ``(C) Penalty.--Any guardian ad litem who violates 
                subparagraph (B) shall be fined under this title, 
                imprisoned for not more than one year, or both.''.

SEC. 5. ASSESSMENTS IN CHILD PORNOGRAPHY CASES.

    (a) Assessments in Child Pornography Cases.--Chapter 110 of title 
18, United States Code, is amended by inserting after section 2259 the 
following:
``Sec. 2259A. Assessments in child pornography cases
    ``(a) In General.--In addition to any other criminal penalty, 
restitution, or special assessment authorized by law, the court shall 
assess--
            ``(1) not more than $17,000 on any person convicted of an 
        offense under section 2252(a)(4) or 2252A(a)(5);
            ``(2) not more than $35,000 on any person convicted of any 
        other offense for trafficking in child pornography; and
            ``(3) not more than $50,000 on any person convicted of a 
        child pornography production offense.
    ``(b) Annual Adjustment.--The dollar amounts in subsection (a) 
shall be adjusted annually in conformity with the Consumer Price Index.
    ``(c) Factors Considered.--In determining the amount of the 
assessment under subsection (a), the court shall consider the factors 
set forth in sections 3553(a) and 3572.
    ``(d) Imposition and Implementation.--
            ``(1) In general.--The provisions of subchapter C of 
        chapter 227 (other than section 3571) and subchapter B of 
        chapter 229 (relating to fines) apply to assessments under this 
        section, except that paragraph (2) applies in lieu of any 
        contrary provisions of law relating to fines or disbursement of 
        money received from a defendant.
            ``(2) Effect on other penalties.--Imposition of an 
        assessment under this section does not relieve a defendant of, 
        or entitle a defendant to reduce the amount of any other 
        penalty by the amount of the assessment. Any money received 
        from a defendant shall be disbursed so that each of the 
        following obligations is paid in full in the following 
        sequence:
                    ``(A) A special assessment under section 3013.
                    ``(B) Restitution to victims of any child 
                pornography production offense that the defendant 
                committed.
                    ``(C) An assessment under this section and 
                restitution to victims of any trafficking in child 
                pornography offenses.
                    ``(D) Other orders under any other section of this 
                title.
                    ``(E) All other fines, penalties, costs, and other 
                payments required under the sentence.''.
    (b) Child Pornography Victims Reserve.--Section 1402(d) the Victims 
of Crime Act of 1984 (34 U.S.C. 20101(d)) is amended by adding at the 
end the following:
    ``(6)(A) The Director may set aside up to $10,000,000 of the 
amounts remaining in the Fund in any fiscal year after distributing the 
amounts under paragraphs (2), (3), and (4), in a Child Pornography 
Victims Reserve, which may be used by the Attorney General for payments 
under section 2259(d) of title 18, United States Code.
    ``(B) Amounts in the reserve may be carried over from fiscal year 
to fiscal year, but the total amount of the reserve shall not exceed 
$10,000,000. Notwithstanding subsection (c) and any limitation on Fund 
obligations in any future Act, unless the same should expressly refer 
to this section, any such amounts carried over shall not be subject to 
any limitation on obligations from amounts deposited to or available in 
the Fund.''.
    (c) Child Pornography Victims Reserve.--Chapter 110 of title 18, 
United States Code, is amended by inserting after section 2259A, as 
added by subsection (a), the following:
``Sec. 2259B. Child pornography victims reserve
    ``(a) Deposits Into the Reserve.--Notwithstanding any other 
provision of law, there shall be deposited into the Child Pornography 
Victims Reserve established under section 1402(d)(6) of the Victims of 
Crime Act of 1984 all assessments collected under section 2259A and any 
gifts, bequests, or donations to the Child Pornography Victims Reserve 
from private entities or individuals.
    ``(b) Availability for Defined Monetary Assistance.--Amounts in the 
Child Pornography Victims Reserve shall be available for payment of 
defined monetary assistance pursuant to section 2259(d). If at any time 
the Child Pornography Victims Reserve has insufficient funds to make 
all of the payments ordered under section 2259(d), the Child 
Pornography Victims Reserve shall make such payments as it can satisfy 
in full from available funds. In determining the order in which such 
payments shall be made, the Child Pornography Victims Reserve shall 
make payments based on the date they were ordered, with the earliest-
ordered payments made first.
    ``(c) Administration.--The Attorney General shall administer the 
Child Pornography Victims Reserve and shall issue guidelines and 
regulations to implement this section.
    ``(d) Sense of Congress.--It is the sense of Congress that 
individuals who violate this chapter before this legislation is 
enacted, but who are sentenced after this legislation is enacted, shall 
be subject to the statutory scheme that was in effect at the time the 
offenses were committed.''.
    (d) Clerical Amendment.--The table of sections for chapter 110 of 
title 18, United States Code, is amended by inserting after the item 
relating to section 2259 the following:

``2259A. Assessments in child pornography cases.
``2259B. Child pornography victims reserve.''.

SEC. 6. CHILD PORNOGRAPHY VICTIM'S RIGHT TO EVIDENCE.

    Section 3509(m) of title 18, United States Code, is amended by 
adding at the end the following:
            ``(3)(A) In any criminal proceeding, a victim of 
        trafficking in child pornography or child pornography 
        production, as those terms are defined in section 2259(c), 
        shall have access to any property or material that constitutes 
        child pornography, as defined by section 2256, depicting the 
        victim, for inspection, viewing, and examination at a 
        Government facility, by the victim, his or her attorney, and 
        any individual the victim may seek to qualify to furnish expert 
        testimony.
            ``(B) A victim of trafficking in child pornography or child 
        pornography production, as those terms are defined in section 
        2259(c), his or her attorney, and any individual the victim may 
        seek to qualify to furnish expert testimony may not copy, 
        photograph, duplicate, or otherwise reproduce any property or 
        material that constitutes child pornography, as defined by 
        section 2256 of this title, so long as the Government makes the 
        property or material reasonably available to the victim, his or 
        her attorney, and any individual the victim may seek to qualify 
        to furnish expert testimony.''.

SEC. 7. CLERICAL AMENDMENTS.

    (a) Expansion of Civil Remedies for Satisfaction of an Unpaid 
Fine.--Section 3613(c) of title 18, United States Code, is amended by 
inserting ``an assessment imposed pursuant to section 2259A of this 
title,'' after ``pursuant to the provisions of subchapter C of chapter 
227 of this title,''.
    (b) Clarification of Interstate or Foreign Commerce Provision 
Regarding Certain Activities Pertaining to Child Pornography.--Section 
2252A (a)(2) of title 18, United States Code, is amended--
            (1) in subparagraph (A)--
                    (A) by striking ``using any means or facility of 
                interstate or foreign commerce'' and inserting ``has 
                been''; and
                    (B) by inserting ``using any means or facility of 
                interstate or foreign commerce or'' after ``child 
                pornography''; and
            (2) in subparagraph (B)--
                    (A) by striking ``using any means or facility of 
                interstate or foreign commerce'' and inserting ``has 
                been''; and
                    (B) by inserting ``using any means or facility of 
                interstate or foreign commerce or'' after ``child 
                pornography''.
    (c) Clarification of the Definition of ``Sexually Explicit 
Conduct''.--Section 2256(2) of title 18, United States Code, is 
amended--
            (1) in subparagraph (A)(v)--
                    (A) by inserting ``anus,'' before ``genitals''; and
                    (B) by inserting a comma after ``genitals''; and
            (2) in subparagraph (B)(iii)--
                    (A) by inserting ``anus,'' before ``genitals''; and
                    (B) by inserting a comma after ``genitals''.
    (d) Clarification of the Extent of the Offense of Coercion and 
Enticement of a Minor.--Section 3559(e)(2)(A) of title 18, United 
States Code, is amended by striking ``into prostitution''.

SEC. 8. REPORT ON IMPLEMENTATION.

    Not later than 24 months after the date of enactment of this Act, 
the Attorney General shall submit to Congress a report on the progress 
of the Department of Justice in implementing the amendments made by 
sections 3 through 5.
                                                       Calendar No. 293

115th CONGRESS

  2d Session

                                S. 2152

_______________________________________________________________________

                                 A BILL

 To amend title 18, United States Code, to provide for assistance for 
         victims of child pornography, and for other purposes.

_______________________________________________________________________

                            January 16, 2018

                        Reported with amendments