[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
CHILD EXPLOITATION RESTITUTION FOLLOWING
THE PAROLINE v. UNITED STATES DECISION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
HOMELAND SECURITY, AND INVESTIGATIONS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
MARCH 19, 2015
__________
Serial No. 114-8
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
LAMAR S. SMITH, Texas ZOE LOFGREN, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa Georgia
TRENT FRANKS, Arizona PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas JUDY CHU, California
JIM JORDAN, Ohio TED DEUTCH, Florida
TED POE, Texas LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah KAREN BASS, California
TOM MARINO, Pennsylvania CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina SUZAN DelBENE, Washington
RAUUL LABRADOR, Idaho HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
------
Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
LOUIE GOHMERT, Texas, Vice-Chairman
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia PEDRO R. PIERLUISI, Puerto Rico
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TREY GOWDY, South Carolina KAREN BASS, California
RAUUL LABRADOR, Idaho CEDRIC RICHMOND, Louisiana
KEN BUCK, Colorado
MIKE BISHOP, Michigan
Caroline Lynch, Chief Counsel
C O N T E N T S
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MARCH 19, 2015
Page
WITNESSES
Jill Steinberg, National Coordinator for Child Exploitation
Prevention and Interdiction, U.S. Department of Justice
Oral Testimony................................................. 6
Prepared Statement............................................. 8
The Honorable Paul G. Cassell, Ronald N. Boyce Presidential
Professor of Criminal Law, S.J. Quinney College of Law at the
University of Utah
Oral Testimony................................................. 24
Prepared Statement............................................. 26
Jonathan Turley, Shapiro Professor of Public Interest Law, George
Washington University
Oral Testimony................................................. 80
Prepared Statement............................................. 82
Grier Weeks, Executive Director, National Association to Protect
Children
Oral Testimony................................................. 100
Prepared Statement............................................. 102
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Witness Introductions............................................ 3
Material submitted by the Honorable F. James Sensenbrenner, Jr.,
a Representative in Congress from the State of Wisconsin, and
Chairman, Subcommittee on Crime, Terrorism, Homeland Security,
and Investigations............................................. 19
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable F. James Sensenbrenner, Jr.,
a Representative in Congress from the State of Wisconsin, and
Chairman, Subcommittee on Crime, Terrorism, Homeland Security,
and Investigations............................................. 119
Prepared Statement of the Honorable Bob Goodlatte, a
Representative in Congress from the State of Virginia, and
Chairman, Committee on the Judiciary........................... 120
Preparted Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Ranking
Member, Subcommittee on Crime, Terrorism, Homeland Security,
and Investigations............................................. 121
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 122
Prepared Statement of Victims of Child Pornography............... 124
CHILD EXPLOITATION RESTITUTION FOLLOWING THE PAROLINE v. UNITED STATES
DECISION
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THURSDAY, MARCH 19, 2015
House of Representatives
Subcommittee on Crime, Terrorism,
Homeland Security, and Investigations
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 10 a.m., in room
2141, Rayburn Office Building, the Honorable F. James
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
Present: Representatives Sensenbrenner, Goodlatte, Gohmert,
Chabot, Poe, Buck, Bishop, Jackson Lee, and Conyers.
Staff Present: (Majority) Allison Halataei, Parliamentarian
& General Counsel; Sarah Allen, Counsel; Alicia Church, Clerk;
(Minority) Joe Graupensperger, Counsel; Vanessa Chen, Counsel;
and Veronica Eligan, Professional Staff Member.
Mr. Sensenbrenner. The Subcommittee will be in order.
Without objection, the Chair will be authorized to declare
recesses at any time due to votes on the House floor.
Let me see, we are due to have votes sometime between 10:05
and 10:15, and then another series of votes at 11:45. It is the
Chair's intent not to resume the hearing after the second
series of votes, so we will have to go over there to vote, come
on back, and then resume the hearing. So this is kind of going
to be the rocket docket.
The Chair will withhold his opening statement, and at this
time ask unanimous consent to have all opening statements be
placed in the record. If either the full Committee Chair or the
Ranking Member, Ms. Jackson Lee, want to give an opening
statement, which the Chair will discourage, they may do so.
The gentleman from Virginia, Mr. Goodlatte?
Mr. Goodlatte. I will put my statement in the record. Thank
you, Mr. Chairman.
Mr. Sensenbrenner. The gentlewoman from Texas, Ms. Jackson
Lee?
Ms. Jackson Lee. Mr. Chairman, thank you for your
courtesies. I will put in my statement, which I intend to have
revised, and you have given me a great opportunity. I will ask
unanimous consent for that statement to be placed in the
record.
Mr. Sensenbrenner. Without objection, all Members' opening
statements will be placed in the record. And the Chair will
remember that you have----
Mr. Conyers. You didn't ask me.
Mr. Sensenbrenner. Oh, I didn't see you. The gentleman from
Michigan?
Mr. Conyers. I am going along with the crowd here this
morning.
Mr. Sensenbrenner. Bless you.
We have a very distinguished panel today, and I will begin
by swearing you all in, if you would please rise.
Please raise your right hand. Do you swear that the
testimony you are about to give is the truth, the whole truth,
and nothing but the truth, so help you God?
Let the record show that all the witnesses answered in the
affirmative.
Let me give a brief introduction of all of the witnesses,
and ask unanimous consent that the full introduction be placed
in the record.
[The information referred to follows:]
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__________
Mr. Sensenbrenner. Jill Steinberg serves as the national
coordinator for Child Exploitation Prevention and Interdiction
at the United States Department of Justice.
The Honorable Paul Cassell is an endowed chair of the
University of Utah College of Law. Professor Cassell received a
J.D. from Stanford, which shows that he is a person of great
intellect, and he also makes good choices.
Professor Jonathan Turley is the Shapiro Professor of
Public Interest Law at George Washington University Law School.
And Grier Weeks is the executive director of the National
Association to Protect Children, which he helped establish in
2004.
Without objection, all the witnesses' statements will be
placed in the record in full. Each witness will be asked to
summarize their testimony in 5 minutes or less. You all know
what the red, yellow, and green lights mean.
Ms. Steinberg, you are first.
TESTIMONY OF JILL STEINBERG, NATIONAL COORDINATOR FOR CHILD
EXPLOITATION PREVENTION AND INTERDICTION, U.S. DEPARTMENT OF
JUSTICE
Ms. Steinberg. Chairman Goodlatte, Ranking Member Conyers,
Chairman Sensenbrenner, Ranking Member Jackson Lee, and
distinguished Members of the Subcommittee, I would like to
thank you for the leadership that you have taken in addressing
restitution for child pornography victims. On behalf of the
Justice Department, I look forward to working closely with you
on this issue.
Every day, individuals around the world advertise,
distribute, and access child pornography. These images of child
sexual abuse are moved from computer to smart phone to tablet
to cloud storage and back, seamlessly crisscrossing
international borders without detection. When sexually explicit
images of children become actively traded, those victims
necessarily are implicated in hundreds of cases all over the
country and across time.
In this way, these victims are unique among crime victims.
Because of the mechanics of the crime committed against them,
they continually suffer harm caused by countless individuals
all over the country and the world.
Like all crime victims, victims of child pornography are
entitled to full and timely restitution as provided by law,
including restitution for losses that arise from the collection
and distribution of their images.
In 2009, for the first time, a victim came forward and
sought restitution not just from the person who produced and
initially shared those images, but from the subsequent
individuals who collected and traded those images. Soon,
Federal prosecutors across the country were seeking restitution
in collection and distribution cases for child pornography
victims. For the most part, prosecutors were successful in
obtaining restitution orders for those victims.
Despite the department's overall effort and success in
obtaining restitution orders for these victims, there were some
hard-fought losses. Some courts struggled to determine whether
a defendant proximately caused a victim's loss. If a defendant
was one of thousands of individuals who harmed a victim, some
courts found that he could not have proximately caused her
losses because those losses essentially would be the same if he
had not committed the crime. On that logic, some courts denied
restitution.
Others demanded a showing as to how much an individual
defendant incrementally increased a victim's loss, which
imposed a generally insurmountable evidentiary burden.
Among courts that awarded restitution, many courts grappled
with how much that restitution should be. Although most awards
clustered in the range of $1,000 to $5,000, courts adopted
numerous different approaches to come up with that number.
These two issues were brought to the Supreme Court in
Paroline v. United States last term. In its majority opinion,
the Court found that the unique issue of imposing restitution
in child pornography cases required the use of a less demanding
causal standard. The majority opinion concluded that in these
types of child pornography cases, 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.
Paroline has substantially improved the department's
ability to obtain restitution orders for these victims. Since
Paroline, the department has obtained approximately 160
restitution orders in approximately 60 Federal districts across
the country. In that time, we are not aware of any district
court judge denying a restitution order in these kinds of cases
because of the failure of proof on the
Causation issue. Instead, courts can focus on how much
restitution should be ordered.
Although Paroline has significantly improved the
department's ability to obtain restitution in these kinds of
cases, legislation is still needed to improve our ability to
help these victims. Current data tells us that there are over
8,500 children who have been identified in images of child
pornography. Yet as of yesterday, when we found out about one
additional victim who is asking for restitution, there are only
16 victims seeking restitution in child pornography
distribution, receipt, and possession cases in Federal court.
The department believes that the reason so few seek
restitution is because the process of litigating claims in
hundreds of cases around the country over many years is simply
too burdensome, and we can do better.
The department urges Congress to create an alternative
system that allows victims of the distribution and collection
of child pornography to obtain some measure of restitution
without enduring litigation.
Under this system, child pornography defendants would be
required to pay a special assessment, in addition to any
restitution that they might owe. The special assessment would
go into a fund. Victims of these types of child pornography
cases could then choose whether to present their full
restitution claim in court, as they do now, or to avail
themselves of a onetime source of administrative compensation.
This two-track process is meant to ameliorate the
structural impediments that we believe deters victims from
coming forward now while preserving the option of obtaining
full restitution for those who wish to do so.
Thank you for your continued consideration of this issue.
The department looks forward to working with Congress to find
the best means to advance an important cause of putting
restitution in the hands of these victims.
[The prepared statement of Ms. Steinberg follows:]
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__________
Mr. Sensenbrenner. The Chair hears bells in the distance,
which means that we have to go to vote. Before recessing the
hearing, the Chair asks unanimous consent to include in the
record a statement by Linda Krieg, the acting CEO of the
National Center for Missing and Exploited Children, on this
subject.
Without objection, so ordered.
[The information referred to follows:]
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__________
Mr. Sensenbrenner. Pursuant to the previous order, the
Subcommittee stands in recess. Members are advised to come back
as soon as the last vote in this series is taken.
[Recess.]
Mr. Sensenbrenner. The Subcommittee will be in order.
Professor Cassell?
TESTIMONY OF THE HONORABLE PAUL G. CASSELL, RONALD N. BOYCE
PRESIDENTIAL PROFESSOR OF CRIMINAL LAW, S.J. QUINNEY COLLEGE OF
LAW AT THE UNIVERSITY OF UTAH
Mr. Cassell. Thank you. Mr. Chairman, and distinguished
Members of the Subcommittee, I am pleased to be here today to
testify in support of legislation to expand restitution for
child pornography victims.
As the Subcommittee is aware, last April, the Supreme Court
handed down its decision in Paroline v. United States. The case
involved a young victim of Federal child pornography crimes,
Amy. She had a documented restitution claim for significant
psychological counseling costs, costs that were attributable to
the crimes of literally thousands of criminals scattered across
the country.
The Supreme Court's 5-to-4 decision interpreted a
restitution statute enacted by Congress and held that an order
of restitution is only appropriate to the extent that it
reflects the defendant's relative role in the causal process
underlying the victim's financial losses.
Exactly what this holding means is not completely clear,
and lower courts are currently struggling to implement the
Court's holding. But even the Supreme Court itself seemed to
recognize that Congress would need to amend the restitution
statute. Chief Justice Roberts, joined by Justices Scalia and
Thomas, noted that the majority opinion would result in tiny
restitution awards to Amy, and that Congress should have the
chance to ``fix it.''
Justice Sotomayor, too, called for a congressional
response, explaining that, in the end, it is Congress that will
have the final say. She specifically suggested that Congress
might amend the statute, for example, to include the term
``aggregate causation'' or to set minimum restitution amounts.
Following up on the specific suggestions in the dissenting
opinions, the proposed Amy and Vicky act would specifically
mandate the use of an aggregate causation standard in making
restitution determinations. The Amy and Vicky act would also
simplify apportionment issues by establishing fixed minimum
restitution amounts, $25,000 for possession crimes, $150,000
for distribution crimes, and $250,000 for production crimes.
It is important to note that none of these amounts exceeds
the current maximum fine amount, $250,000, and it is hard to
understand how ordering restitution that goes to victims in
amounts equal to or less than what can already go to the
government could be found objectionable by anyone.
The view that Congress should step in and amend the child
pornography restitution statute appears to be widely shared. On
today's panel, all four of us have provided testimony calling
for changes to the statute. Mr. Weeks and I both support the
Amy and Vicky act. The Justice Department, too, has advocated
setting minimum restitution amounts, calling such a change to
be helpful. And Professor Turley supports amendments to provide
for minimum restitution awards for those who produce or
distribute child pornography.
This broad support for changes to the statute is also
reflected in the resounding 98-to-nothing vote that the Senate
gave in passing the act, as well as 43 endorsements from
attorneys general.
In my written testimony, I explained at length how the act
is consistent with well-settled principles of tort law, which
hold that intentional wrongdoers, like the criminals involved
here, must shoulder the burden of paying for harms to which
their wrongful actions contribute.
But rather than end with a law professor's explication of
tort theory, I want to conclude my remarks with the words of a
courageous young woman whom I have had the great privilege to
represent in courts across the country, including the United
States Supreme Court.
My client Amy is seated in the hearing room today, along
with two other victims of child pornography crimes, whom I will
refer to has Alice and Aurora. They are available to meet with
the Committee or the Committee staff after today's hearing.
But each of them have asked me to convey to the
Subcommittee the endless trauma that they endure. As Amy
explained to me, ``Imagine that you were abused, raped, and
hurt, and this is something that other people want. They enjoy
it, and it is you. It is your life and it is your pain that
they are enjoying. And it never stops, and you are helpless to
do anything ever to stop it. That is horror.''
This Subcommittee can never go back and erase the horrors
that Amy and others like her have already suffered. But moving
forward, it can put in place a workable statute that would
provide restitution from convicted criminals who have
contributed to their pain.
The House should hear Amy's plea and join the Senate in
passing the Amy and Vicky act. Victims of child pornography
crimes deserve nothing less than full and speedy restitution.
Thank you.
[The prepared statement of Mr. Cassell follows:]
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__________
Mr. Sensenbrenner. Thank you very much.
Professor Turley?
TESTIMONY OF JONATHAN TURLEY, SHAPIRO PROFESSOR OF PUBLIC
INTEREST LAW, GEORGE WASHINGTON UNIVERSITY
Mr. Turley. Thank you, Chairman Sensenbrenner, Ranking
Member Jackson Lee, Members of the Subcommittee. It is a great
honor to appear before you to discuss this important issue of
restitution for child exploitation in the aftermath of the
Paroline decision.
Even though I have taught tort law for decades, and
practiced in the area of criminal defense, I have to say, this
is the most challenging question I have faced when called
before a Committee of Congress.
In my view, the Supreme Court was correct when it struck
down the prior system, which contained a well-intentioned but
ill-conceived model for relief for these victims. The problem,
as I explain in my written testimony, is not with the core
culprits of these crimes. For them, the restitution is fairly
clear and conventional. The problem is with that group of
culprits that are accused of viewing or possession of these
images.
As the Supreme Court itself said on page 24 of the opinion,
the prior system pushed traditional concepts of tort and
criminal law to ``the breaking point.'' And I certainly agree
with that.
There are no advocates of child pornography here today.
There are no such advocates in this debate. We all agree that
these are horrendous crimes. More importantly, we agree that
these victims need restitution and relief, and that too few of
them are receiving that. So no one was doing a victory lap when
the Supreme Court struck down the prior system.
I thought it was a sad moment, because I believed before
the opinion that it was unnecessary litigation, that the system
was flawed and that it could have been avoided, and that, more
importantly, these victims could have gotten the relief that
they deserve.
It is important to remember that even though the decision
was 5-4, there were eight Justices that felt that restitution
could not be awarded under the prior system. And of the
circuits, there was not much of a split. There was just one
circuit that said restitution of this kind could be granted.
Ten said that it could not because of these core principles of
proximate causation, joint and several liability, and other
controversies.
So we are not here to vent about the opinion but to try to
learn from it. I think there are things that could be learned
from it, and I believe that the Committee could make this a
better system to better assist these victims.
While I agree with the Supreme Court decision, I thought
the most unfortunate aspect, and Paul has indicated this as
well, is that the guidelines given to lower courts are not very
helpful. They are pretty opaque, in fact, as to what lower
courts are supposed to do to find a figure of restitution. You
end up with sort of a Goldilocks figure. They want it to be not
too big, not too small, but just right. That is not going to
help out these courts. These judges will be left with this sort
of Sisyphean task of trying to find a way to fit this round peg
into a square hole. I think that is the problem.
That is the reason I suggest in my testimony that the
Committee consider the creation of a compensation fund. I call
it tentatively ``RAISE.'' That RAISE fund would follow previous
funds created, including the International Terrorism Victim
Expense Reimbursement Fund. But also it would track this
approach in tort cases, mass tort cases, as well as settlement
cases in areas like the BP oil spill, the 9/11 Victim
Compensation Fund.
I go through the benefits of this fund. I think that the
current system is insane, to have each of these victims have to
go through this process, hire attorneys, have judges try to
reinvent the wheel in every single case in finding a figure.
So I recommend the fund for various reasons. One is that it
is fair. It would guarantee fair and equitable distribution to
victims.
Second, it would reduce legal fees, because you would have
a fund that would be able to administer this process. It would
reduce court costs so that judges would not be faced with what
is clearly a very difficult task.
It would also end the race to the courthouse. You wouldn't
have the problem of people getting first into a case, possibly
tapping out a defendant to the possible disadvantage of other
victims.
It would also reduce information and transactional costs,
and guarantee a more consistent and perhaps increased number of
orders for victims. As was previously said, we have 8,500
victims here, but if you take a look at how many of the victims
have received compensation, it is ridiculously small.
So the question for the Committee is, are you going to have
a retort to the Supreme Court or reform? I think the Senate
bill is more of a retort. It does not really take from the
opinion what it could.
I will end simply by noting Archimedes once said very
famously that if you give me a lever long enough and a fulcrum
to place it on, I can move the world. The question here is the
lever. I think Congress made the wrong decision, and this would
give you a new lever and would give victims a better life.
[The prepared statement of Mr. Turley follows:]
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__________
Mr. Sensenbrenner. Thank you very much, Professor.
Mr. Weeks?
TESTIMONY OF GRIER WEEKS, EXECUTIVE DIRECTOR, NATIONAL
ASSOCIATION TO PROTECT CHILDREN
Mr. Weeks. Thank you, Chairman Sensenbrenner, and
distinguished Members of the Committee. I am a Grier Weeks with
Protect. We are a pro-child, anticrime membership association.
We have been working on this issue, in particular, with
Congress and in the States since 2006.
Child pornography is a massive black market in the United
States. The market demand can only be supplied in one way, and
that is through the additional rape and torture of children.
Many of those children, if not most, are toddlers or elementary
school age, and they have no idea that their nightmare is not
over when the assaults stop.
There are somewhere on the order of 5 million known video
and images of children being abused today. There has been over
8,000 victims identified.
I think it is important for you to understand, as
policymakers, that the vast majority of those victims have not
been identified through any concerted national effort. They
have been identified in the normal course of law enforcement
investigations. And this is a serious shame, I think.
If you ask law enforcement their best estimates for how
many victims there are out there, it will always tend to be in
the tens of thousands. We think that about 50,000 is a very
safe estimate for how many victims are out there.
But I want to point out there is a much larger iceberg
there. We know that there are over 1 million people in this
country sexually preying on children. That means that there are
millions of child victims, and every one of those kids is in
danger of having a camera or smart phone pointed at them and
becoming a victim of child pornography.
The Amy and Vicky act, if drafted properly, and I am not
here as a legal expert, would be a fix to part of the problem.
I want to say that victims, survivors, transcenders, really, of
abuse, like Amy and Vicky, who have really gone to great
lengths in their lives to go fight to make the predators
accountable, are national heroes. And they need a solution.
I want to also say that there has been some suggestion that
if there were a victim restitution compensation fund, that the
victims have to choose that or go to court. I think the spirit
of the crime victims' rights act is that you have the right to
confront the person who abused you or committed the crime
against you, to be heard, and to exact some measure of justice.
I do not think we can say to people, well, you forfeited that
right because you availed yourself of help from a government
fund.
In 2014, our organization compiled a report on the state of
affairs in all 50 States with crime victim compensation funds.
The author Susan Nelson found that 44 States and the District
of Columbia either do not allow or make it very difficult for
victims to recover damages from these funds.
In New York, for example, if you are a victim of a
frivolous lawsuit, you are eligible for compensation. But if
you are a victim of child sexual exploitation, you are not.
The problem cannot be solved piecemeal, state-by-state. The
fact is that the vast majority of victims are never going to
hire an attorney, never going to put themselves through the
ordeal of recounting what happened to them, in the courtroom.
We need a Federal solution. We need a Federal fund.
Unlike virtually any other crime on the books, a victim in
Ohio may have simultaneous perpetrators in 49 other States. We
support a dedicated Federal crime victim compensation fund that
should be at the Department of Justice. The Office for Victims
of Crime is the natural home for this fund, as they already
oversee the Crime Victims Fund.
It should utilize money from a special assessment on child
sexual exploitation crimes. We should make the perpetrators pay
for this. And they should be graduated based on seriousness of
offense.
It will need to be reconciled, if the justice for victims
of trafficking act were to make it out of the Senate. It needs
to be reconciled with that.
The fund should be seeded up front, I believe, with funds
from the Crime Victims Fund, which now has a staggering balance
of about $9 billion. That will be more than recouped over the
years.
It really should be user-friendly. It is just inhumane to
ask victims to come forward with a shoebox full of receipts for
everything that has happened to them since they were 8 years
old.
Finally, I want to say that we can't just worry about
yesterday's victims. We have to think about today's victims.
There are only so many special assessments and fines that can
be piled on. If a special assessment is created, a portion
should go to law enforcement, I would say as much as 50
percent. That will grow the fund for all victims concerned, but
it also is the only way of ensuring that we are not just
helping those brave survivors who have gotten strong and
stepped forward to fight for their rights. We are also
protecting the 5 year olds, the 8 year olds today who
desperately need to be rescued, and that is law enforcement.
Thank you.
[The prepared statement of Mr. Weeks follows:]
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__________
Mr. Sensenbrenner. Thank you very much, Mr. Weeks.
I will recognize myself for 5 minutes. It will be kind of
more of a list of concerns than a question, although I may have
one or two at the end.
Everybody here wants to make those who perpetrate and
distribute child pornography pay and pay dearly. We all know
that there is a lot of money in it, and this is criminal money.
We ought to make those who attempt to make a lot of money and
get caught really have the book thrown at them, and it is not
just jail time.
The second issue is how we compensate people who have been
the victims of child pornography. The Paroline decision talks a
lot about that and comes to the conclusion that the current
statute is defective.
The third point is, how do we compensate the victims, how
much, what they have to show to be compensated, and whether it
is proper to call this restitution when it might go beyond the
restitution that is necessary to actually deal with the
psychological damage that is done to people who are victims of
child pornography.
This is kind of something that is all mixed up. The
Paroline case, in my opinion, shows very clearly that Congress
got it wrong when it passed the trafficking statute Section
2259 of the Criminal Code. This time we have to do it right,
because there will be a further Paroline-type case that makes
it all the way up to the Supreme Court. And if we don't do it
right, in a few years, we will be back right from the start.
It appears from the testimony that Amy and Vicky's law is a
good start, but it doesn't do it right completely. With all
these concerns that have been raised by the witnesses today,
let me ask you, Professor Cassell, how you think Amy and
Vicky's law can be strengthened in a way that we don't have to
respond to a Supreme Court decision years down the road.
Mr. Cassell. Thank you, Mr. Chairman. I think you make a
very good point. The Amy and Vicky act is a good start and
should be the first step in the process. But there are
obviously additional steps that can be taken, and I list some
of those in my testimony.
One of the key things is the Crime Victims' Rights Act,
which I know you were instrumental in helping to pass about 10
years ago. One of the problems there is that there was
initially appropriation made for crime victims' legal
representation that has since disappeared. So I think that
would be the number one thing Congress could do, to reestablish
the funding that was part of the Crime Victims' Rights Act.
That would provide legal representation for victims on
restitution issues and every other issue that they have.
There were also some other things that could be done to
strengthen the Crime Victims' Rights Act, such as ensuring
proper appellate review of crime victims' claims.
I think it is certainly worth discussing the idea of a
fund, but what has been interesting for me is the Justice
Department, who we had to litigate against in the Supreme Court
on these issues, threw out the idea of a fund 5 years ago.
Well, here they are today still talking about it, but when is
the department actually going to put something forward that is
specific?
The Amy and Vicky act is something specific. It is
legislation that has passed the Senate, and it would make a
real-world difference for Amy, Vicky, and many other victims
around the country. I think that is the thing that has to
happen.
Mr. Sensenbrenner. With all due respect to our colleagues
on the other side of the Capitol, there are a lot of bills that
pass the Senate that we have to fix up. This is a case where we
have to do it right the first time, because if we don't do it
right the first time and try to take a bow and say, ``Guess
what, folks? We have solved this problem,'' when we really know
we didn't, I think we are just deceiving the American public,
knowing that further litigation is going to result in an
inconclusive decision by the Supreme Court, which will make a
lot of the victims of this type of crime very frustrated and
very unhappy.
I think that Amy has indicated that on the record after
this all went up to the Supreme Court, where eight of the nine
Justices said that under the current statute, no restitution
was possible.
I guess what I would like to say is that I am concerned
that if the shoebox full of receipts, using Professor Turley's
testimony, ends up resulting in a pittance and a slap on the
wrist, and having a minimum amount of restitution damages, I am
concerned that that would raise some Eighth Amendment problems
that we really don't need to be adding to the whole business of
things that have to be solved.
So I am going to say I am very, very eager and willing to
work with everybody who has an oar in the water. But remember,
the goal is to do it right, not to do something where people
can take a bow on the Sunday morning talk shows and then being
embarrassed that their law has been struck down because it is
wrong or because it is not specific enough.
With that, I will call on the gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
And I appreciate the witnesses.
Let me ask Professor Turley, does the Eighth Amendment
prohibition against excessive fines apply to restitution
statutes in criminal cases?
Mr. Turley. Thank you. It is wonderful to appear again
before you, sir.
The Supreme Court actually touched on this and said that
restitution, even though it is traditionally not a punitive
measure, can trigger the Eighth Amendment because it is part of
the criminal process. They touched on it lightly on the opinion
that this can conflict as an excessive fine under the Eighth
Amendment.
I think that most of the opinion is directed at the origins
of these doctrines of proximate causation in torts, where the
court is saying, look, this just doesn't fit. What you are
trying to do here with possessors, and I think that is the key
here, that if you want to fix this thing, I think that you need
to separate who are the targets.
When it comes to those core individuals, the ones that do
the filming and distribution, I don't see a serious problem,
even with Senate bill. But the Senate bill replicates many of
the problems that the Supreme Court identified. In some
respects, it is a cosmetic change. I think that is how it will
be viewed by some of the Justices.
Where I think we have our issue, what makes this difficult,
are with possessors and fitting it into a restitution scheme.
The Chairman was addressing that as well.
So the answer, sir, is yes, excessive fines can run afoul
of the Eighth Amendment. In fact, it was raised by the Supreme
Court. But you can actually get on to terra firma, if you just
take a different approach to this issue. I think that, frankly,
this was just the wrong path to take with that group of
individuals. You can get to the same place. You can actually
get to the same relief, but you can do it in a way that will
avoid all of this litigation.
It is sort of like when a patient goes to the doctor and
says, ``Doc, when I do this, it hurts.'' And the doctor says,
``Stop doing that.'' I think that is the problem here, that you
are using the wrong means for that class of defendants.
Mr. Conyers. Ms. Steinberg and Professor Cassell and Mr.
Weeks, are you in general agreement with the response that has
been made so far?
Mr. Cassell. I am not. I think the Eighth Amendment does
not apply at all to restitution awards. Restitution awards do
not punish criminals. They provide compensation to victims.
I litigated that issue in the 10th Circuit in the Oklahoma
City bombing case on behalf of 169 families and many others who
were trying to get a very large restitution award entered
against Terry Nichols so he couldn't go sell a book or do
something like that and profit from his horrible crime.
The issue went to the 10th Circuit, and the 10th Circuit
said restitution does not punish criminals. It is compensation.
So some of the other constitutional restraints that may apply
in other settings, when Congress sets mandatory minimums or
things like that, simply do not apply.
The other key thing to remember about the Amy and Vicky
act, today, a possessor of child pornography can be ordered to
pay $250,000 to the government. The Amy of Vicky act says to a
possessor, well, let's not send money to the government. Let's
send $25,000 to a victim.
If you can send $250,000 to the government, it is hard for
me to imagine how any court in the land would say, well,
$25,000 to a victim is cruel and unusual punishment.
Mr. Conyers. Any other comments on this?
Mr. Weeks. Congressman, I would like to respond.
Mr. Conyers. Mr. Weeks?
Mr. Weeks. My opinion on the constitutional question
wouldn't be expert enough to be valuable to you, but I do want
to emphasize that possessors, the so-called simple possessors,
must be held accountable. They are commissioning the rape of
children.
Mr. Conyers. Now, finally, I have been pursuing an attempt
to get nondeterrent minimums struck from the Criminal Code for
a considerable period of time. I think I am gaining steam.
Couldn't we drop that and let's leave it in the court's
discretion, rather than us trying to write in whatever feelings
we happen to have on the day this legislation comes up?
Who would like to try that?
Mr. Turley. I will take a stab at it. I actually, in my
testimony, encourage the Committee, in whatever it does, to
allow some element of discretion for trial courts to make
qualitative decisions in cases. There are no de minimis
possession of child pornography cases, in my view. That is,
they are all serious. But there are great variations.
And these trial courts are in an excellent position--they
are the boots on the ground--to make decisions. None of these
courts are going to be sympathetic to these defendants.
But I think that what the Committee itself has to accept is
if you look at the record of Paroline, it is riddled with
broken courts, fractured courts trying to use the system, the
approach, that I think is replicated by the Senate with regard
to possessors. It is really only with possessors that courts
fractured on trying to use the system.
So I think it would be a good idea to have a discretionary
component, but also to use an alternative approach to avoid
another round of litigation.
Mr. Conyers. I thank you all.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Ohio, Mr. Chabot?
Mr. Chabot. Thank you, Mr. Chairman. Thank you for holding
this very important hearing.
I want to thank all our witnesses here today for devoting
much of their time and their lives to an issue which is
absolutely critical, the exploitation of children, particularly
over the Internet. It is incredible how prevalent it is, how
many children have been injured.
I have been on the Judiciary Committee, this is my 19th
year now. Henry Hyde had introduced the victims of crime
constitutional amendment some years before I got here. And
after a while, he was so busy with so many issues, being Chair
of the full Committee, that he turned to me to handle it. And
for years, I was the principal sponsor of the victims
constitutional amendment.
Unfortunately, we never got it passed. It is very hard to
pass a constitutional amendment, as Professor Turley knows. We
did pass some legislation, and oftentimes it was a victims bill
that was attached to some other larger bill that in a CR went
through. So it was hard to focus.
It wasn't a CR this time, but in any event----
Mr. Sensenbrenner. No, I stuck it on something the Senate
wanted.
Mr. Chabot. Okay.
But, procedurally, oftentimes, you never know what you
actually accomplish, because it is in a 2,000-page bill
somewhere. But the bottom line is, a lot of us have been
involved in this for a long time.
There is a debate around here. Oftentimes, you hear about
we prefer, conservatives, in particular, prefer to have the
States doing what they can and us not to get involved in it, if
we don't really need to.
So I guess my question would be for you, Mr. Weeks, mainly,
but anyone can comment on it, if they want. You mentioned the
States. Some of them have victims' compensation funds and most
don't apply to, I guess, minors exploited on the Internet. But
this is a case where it may happen in one State and then
because these people apparently deal with each other all over
the place, it can be in all 50 States.
So make your best argument, if you would, for the record,
as to why this is an area, really, we should have Federal
involvement and a Federal victims' compensation fund of some
sort.
Mr. Weeks. Sure. Congressman, we work in probably a dozen
States so far. We have worked on the legislative level. And one
of the things we want most to see is States taking
responsibility, taking the lead on this issue.
However, virtually every single case of online-facilitated
child pornography trafficking is a Federal crime because of the
commerce clause. So you have that. You also have a very large
percentage of all prosecutions are federally done, so you have
that as well. There is also a very large international
component.
I think that here in the States, law enforcement is
completely overwhelmed. In every single State, law enforcement
is unable to even pursue any more than 2 percent of known
leads, of known leads.
Mr. Chabot. Thank you very much.
Let me ask you another question. I also practiced law for
18 years and did criminal cases, represented victims, et
cetera. In going through the victims' compensation funds, as
you all know, to fund them, they will slap on court costs on
criminal cases. Unfortunately, oftentimes, the people in our
criminal courts all over the country are basically indigent,
and they are supposed to pay but oftentimes don't. How can we
make sure that the actual perpetrators here--and I think a lot
of these perpetrators are people who have some financial
ability to pay. I am sure there are exceptions, but how do we
make sure that actually the people who are committing these
horrific crimes are the ones who foot the bill and not
taxpayers, or in some way the public is paying for it.
We want the victims to get something, but it really ought
to be the bad guys and not all of us, the taxpayers, paying.
Professor Turley, would you want to take that?
Mr. Turley. Well, under my written testimony, I refer to
the fund as actually collecting money from these cases, a
central fund where these district courts can refer to an office
that has the expertise and can also distribute this with a
centralized idea of who is receiving what money and has the
ability to do this in an efficient way.
It would also allow courts to send fines into the fund,
which could help support it even further.
One of the things that I think has great promise is that
these people, if they are out of prison, should have
garnishment. They should have money removed from every paycheck
to remind them of what they helped facilitate, if they are
possessors, or what they did, as core original violators. That
can be done.
Mr. Chabot. Thank you.
Mr. Sensenbrenner. The gentleman's time has expired.
The gentleman from Michigan, Mr. Bishop?
Mr. Bishop. Thank you, Mr. Chair.
And thank you to all the witnesses here today. I appreciate
your testimony and would echo the comments from my colleagues
regarding all that you do and the importance of what you do.
Thank you very much.
I practiced law for 22 years, too, and I had a chance to be
on both sides of the law. I have seen victims firsthand, and I
know that this is an ongoing process that all of us are working
on and trying to do the best that we can do.
Many of you can answer these questions. I have several of
them. I am sure, as time goes on, I will have a chance to ask
them in the future.
I think, Judge Cassell, you helped write this. Is there a
reason it didn't include a compensation fund to address the
droves of victims that haven't sought traditional restitution?
Mr. Cassell. Thank you, Congressman.
The reason we wrote the bill--when I say ``we,'' a large
number of people, the victims community, members of the staffs
on both sides of the Hill have looked at this. The idea was to
keep it narrow, so that it wouldn't attract the controversy
that seems to attend broader bills.
The Supreme Court in the Paroline decision says someone is
going to need stop in, at least the four dissenting Justices
all indicated that. So we responded to that call and simply
addressed the narrow problems that needed to be fixed in the
wake of the Supreme Court decision.
Obviously, Congress could do a number of broader things.
Congressman Chabot has talked about a constitutional amendment,
and I believe I will be here in April when the House will be
holding hearings on that. There are some much broader steps
that can be taken to protect victims' rights. But we tried to
do a narrow approach to a narrow problem.
Mr. Bishop. Thank you very much for that.
One of the dissenting opinions, Justice Roberts, in that
particular case, provided that the victims should get nothing
under the restitution statute as written, and that Congress
should fix the statute. But after that, he gives very little
guidance as to what he meant by that.
Perhaps you all can give me some idea as to what you think
he meant by that.
Mr. Cassell. I think he meant that victims like Amy should
receive ample compensation, and the bill that has been passed
by the Senate, the Amy and Vicky act, does exactly that.
One of the things it does, Congressman Chabot talked about
the taxpayers here. Frankly, the only people who love the
current regime are wealthy child pornography criminals, because
now they can manage to get off the hook and pay just $1,000 or
$2,000, which is the collection rate of victims in the system.
If the Amy and Vicky act passes, then a substantial amount of
money can be taken from those defendants and given to victims.
And if those defendants are unhappy about having to shoulder
the burden for paying a large amount, they can then go track
down other criminals around the country.
What happens under the current regime is that crime victims
like Amy have to go to literally dozens and dozens and dozens
of different cases, different courts, different judges, to try
to collect restitution. I think that is the kind of thing that
Chief Justice Roberts was thinking needed to be changed.
Mr. Turley. I will disagree to some extent to what my
friend Judge Cassell has said, in terms of the dissent by Chief
Judge Roberts, although we all, obviously, could read this
differently.
One thing that comes out of eight of nine Justices is a
view that the system designed by the Congress was unworkable.
That was not a close question.
I mean, one of the things I tried to convey in my written
testimony is you have 10 out of 11 circuits saying that what
Congress did was impossible to carry out. You have eight out of
nine Justices, who agree on less and less each year, who agreed
on that position.
My problem with the Senate bill is it does try to make
marginal changes, and what you see in these opinions is that
there are substantial changes that have to be made, but not in
what we want to achieve. We can achieve it. But this is an
example of what I talk about in my written testimony of what
economists call path dependence. This idea of fitting these
fines as a form of restitution and part of joint and several
liability was a flawed concept. And this is a good time to
simply take another path.
One of the nice things about the compensation fund is that
it will get you out of that morass. These Justices said
clearly, look, this just doesn't fit. It is very hard to make
this into proximate causation in terms of restitution. They
weren't saying that the victims couldn't get the relief, but
this was not the vehicle. That is why a compensation fund would
move you out of that problem.
Mr. Sensenbrenner. The time of the gentleman has expired.
The Chair will ask unanimous consent that all Members of
the Subcommittee have the opportunity to submit written
questions of the witnesses within 5 days.
Without objection, the Subcommittee stands adjourned.
[Whereupon, at 11:25 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable F. James Sensenbrenner, Jr., a
Representative in Congress from the State of Wisconsin, and Chairman,
Subcommittee on Crime, Terrorism, Homeland Security, and Investigations
The crime of child exploitation, including the trading and viewing
of images of sexual abuse against children, is one of the most horrific
crimes one can imagine. It is also, sadly, one of the fastest growing.
The National Center for Missing and Exploited Children, which works in
partnership with law enforcement, reviewed over 3 million child sexual
abuse images and videos last month alone. And, there was an 18 percent
increase in the files they reviewed between 2013 and 2014.
The harm that the victims of child exploitation trafficking suffer
is extensive. Not only must these young victims overcome the trauma of
being raped--most often by a so-called loved one or an adult in a
position of trust--but they are also faced with the knowledge that
everyday many thousands of pedophiles could be viewing the evidence of
their rape for their own pleasure. Horrifically, many pedophiles also
use these exploitative images to groom other victims for abuse.
There are some who think that the possession, or ``mere
possession'' as they call it, of child pornography is a victimless
crime. I want to state unequivocally that it is not. Amy, the
extraordinarily brave victim whose restitution claim formed the basis
of the Supreme Court case we will examine today, has said this in a
victim impact statement:
``Every day of my life I live in constant fear that someone
will see my pictures and recognize me and that I will be
humiliated all over again.''
* * *
``The truth is, I am being exploited and used every day and
every night somewhere in the world by someone. How can I ever
get over this when the crime that is happening to me will never
end? How can I get over this when the shameful abuse I suffered
is out there forever and being enjoyed by sick people?''
* * *
While the equities of online child exploitation cases, including
those involving defendants who traffic in images, seem pretty clear to
me, the federal courts have long struggled with these cases. It is very
disappointing to me that federal judges sentence child exploitation
defendants below the applicable guideline range with increasing
frequency. In 2011, only 32 percent of these defendants were sentenced
within the guideline range. It is a travesty that our federal judges
are not treating this crime with appropriate seriousness. Congress, and
this Committee, must address this issue.
Determining the appropriate amount of restitution for the victims
of child exploitation has also proven difficult for the courts. Under
current law, federal courts are required to award any child depicted in
sexually explicit material restitution in ``the full amount of the
victim's losses'' as determined by the court. These losses can include
medical services, therapy, and attorneys' fees, among other things.
Unlike child pornography production cases, where there is a limited
universe of defendants who are generally joined in the same
prosecution, the harm to the victims in end-user child pornography
trafficking cases is often caused by hundreds or thousands of unrelated
individuals who are prosecuted across time and in different
jurisdictions, which makes apportionment difficult.
In recent years, there has been disagreement among the federal
circuit courts over how to calculate the restitution owed by a
defendant who received, distributed, or possessed child pornography. In
response to the circuit split, the Supreme Court ruled in United States
v. Paroline [Pear-a-line] that an individual child pornography
trafficking defendant may be made liable only for the harm caused by
their own conduct, and not for the conduct of others.
I am glad that the Paroline decision gave the lower courts better
guidance on how to determine the appropriate restitution under the
existing statute, but there is still work to be done. To date, only
fifteen of the more than 8,600 known victims of child exploitation have
ever sought restitution. Congress must craft a scheme that helps to
address this travesty.
It is also incumbent on Congress to ensure that any changes to the
existing restitution statute, 18 U.S.C. 2259, are done deliberately and
with a close eye to the Supreme Court's constitutional admonishments in
Paroline. It serves no one if Congress were to make changes that create
unneeded litigation and circuit splits over legislation that is
intended to make victims whole.
We have a very distinguished panel of legal and subject-matter
experts here today to help us examine the Paroline decision and the
state of restitution in child exploitation trafficking cases. I thank
all of you for being here today.
Prepared Statement of the Honorable Bob Goodlatte, a Representative in
Congress from the State of Virginia, and Chairman, Committee on the
Judiciary
The harms that result from the sexual abuse of children are
horrible, and too lengthy to list. These harms last long after the
abuse ends. Importantly for our hearing today, they can also be
incredibly expensive. The cost of finding a new home, on-going therapy,
and other care quickly adds up for the victims of child exploitation.
Over the victim's lifetime, this sum can range into the millions of
dollars. Our laws rightly allow victims to seek financial restitution
from their abusers, but this is not the end of the story.
Having endured horrific abuse, these children are often confronted
with the fact that photos and videos of that abuse are being traded and
collected by hundreds of thousands of pedophiles on the Internet. Even
children victimized before digital cameras became widespread are now
faced with the knowledge that in the Internet Age, a detailed visual
record of the darkest moments of their lives exists, is in wide
distribution online, and is hungrily sought by pedophiles around the
world.
To better compensate victims of child exploitation, Congress
expanded restitution liability to those who produce and traffic in the
pornographic images stemming from that exploitation. Unfortunately, to
date, these efforts have done little to get sex offenders' money into
the hands of their victims.
In the nearly twenty years since the child exploitation restitution
statute, 18 U.S.C. Section 2259, was enacted, only fifteen victims of
child exploitation trafficking, out of more than 8,600 known victims,
have actually sought restitution from those defendants trading their
images.
The Supreme Court case we are here to consider today, Paroline
[Pear-a-line] v. United States, arose only because of the few brave
victims who have sought the restitution they are due. In that case, a
young woman, who goes by the name ``Amy,'' was raped by her uncle when
she was a very young child. Like so many other victims, she was
horrified to discover, years later, that pictures of her most painful
memories were favorites of sick online communities.
It is estimated that because of her initial abuse and constant
revictimization through the trafficking in her images, the cost of
Amy's lost wages and other damages will be more than three million
dollars over the course of her lifetime. Using 18 U.S.C. Section 2259,
Amy has sought restitution from hundreds of sex offenders caught with
her images on their computers.
In Paroline, the Supreme Court decided that one defendant with only
two of Amy's images could not be held liable for the full restitution
from the actions of thousands of offenders. They also rejected the
notion that, at least under the existing statute, the first sued
offender could simply sue subsequent offenders for contribution.
We are here today to discuss what comes next. Clearly, even before
the Paroline ruling, the system of child pornography restitution needed
to be reworked. As I mentioned earlier, only 15 victims, out of the
thousands we know of whose images are on the Internet, have sought
restitution. That is proof that something is broken. Congress has a
responsibility to ensure that those who harm children in this vile way
are held accountable for the suffering of their victims.
A well-functioning system must encourage and enable more victims of
child exploitation to come forward. It must ensure that they can secure
adequate restitution from those who continue their victimization by
trading in their images. And, finally, any solution must be
appropriately crafted within our Constitutional boundaries.
I look forward to hearing from our panel and hope we can use what
we learn today to address the Paroline decision in a thoughtful,
responsible manner. As a father and soon-to-be grandfather, I am
committed to doing all we can to protect our children and ensuring
child victims receive the care they deserve.
I thank our distinguished witnesses, and yield back the balance of
my time.
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of California, and Ranking
Member, Subcommittee on Crime, Terrorism, Homeland Security, and
Investigations
Mr. Chairman: We have no greater cause than to promote the health
and well-being of our children. Today, we hear testimony to assist in
crafting legislation to help the most vulnerable and injured of our
children due to exploitation and sexual abuse.
It is my hope that we can more effectively provide restitution to
child victims in light of the Supreme Court's recent child pornography
restitution decision. In Paroline v. United States, the Court addressed
ambiguities in the current restitution provision of 18 U.S.C. Section
2259.
The Supreme Court acknowledged in Paroline that, ``the demand for
child pornography harms children in part because it drives production,
which involves child abuse.'' Unlike most crimes, the existence of
child pornography creates a continuing, permanent record of the abuse
which exacerbates the harm each time it is shared on the internet. It
is for this reason that we strive to find a unique legislative
solution, for a unique and continuing harm to children, to provide
necessary restitution for their injuries.
The extent of this harm cannot be underestimated. The National
Center for Missing and Exploited Children (NCMEC) reported in 2014
alone, they received 1,080,371 reports relating to child pornography
images on the internet. NCMEC also reports that the number of images
being collected and traded worldwide continues to expand exponentially.
Of the millions of images, the Department of Justice notes that to date
over 8500 children have been identified in these images.
Sadly, of the total number of identified children with documented
sexual abuse due to child pornography, only 15 have sought restitution
through the federal courts to date. As I have said before, perpetrators
of crime know that they are more likely to evade detection and
punishment when their victims refuse to assist or cooperate with law
enforcement. We need to find better ways to encourage child victims to
come forward to address their injuries and pursue restitution.
Despite evidence of a clear link between child pornography and
ongoing harms to child victims, the Court in Paroline denied
restitution to one such child victim known as ``Amy''. We are here
today for Amy, and all child victims, both identified and yet to be
identified.
Understanding why the Court denied restitution is essential if we
are to provide future relief to child victims. The ruling in Paroline
establishes an unequivocal causation standard requiring a sentencing
court to find `proximate cause' between a defendant's acts and a
victim's harms before imposing restitution. The Court refrained from
adopting a `joint and severable liability' standard to require a single
defendant to pay `Amy' restitution for her total aggregated harms. The
Court's stated reason for not adopting this standard is the lack of
guidance in the restitution statute from Congress. Moreover, the Court
relied on a bedrock standard of proximate cause between the defendant's
acts and the victim's harm before it would order a restitution
assessment. In this case, the Court found insufficient facts to
establishment proximate cause liability to assess restitution.
The ruling goes on to direct that, ``a court should order
restitution in an amount that comports with the defendant's relative
role in the causal process underlying the victim's general losses.'' To
do otherwise could raise questions of workability under the Excessive
Fines Clause of the Eighth Amendment. How best to provide a workable
guide for sentencing courts to determine a defendant's relative role is
one of the tasks before us.
We should direct our attention to heeding the admonition in
Paroline, that the punishment fits the crime, and in this context, that
restitution reflects the relative harm committed by each defendant. The
Court notes factors, such as whether a criminal defendant took part in
production of the child pornography or possessed the images, how many
images may have been possessed, and reliable estimates of the number of
individuals who possessed the images, as possible guideposts in
sentencing. I look forward to considering the testimony of today's
witnesses in determining what statutory guidance Congress should
provide.
The necessary urgency to provide statutory relief for these child
victims is without question. The United States Sentencing Commission,
in its latest report to Congress, cites numerous studies documenting
the long-term impact of child sexual abuse. Those impacts include low
self-esteem, psycho-pathology, PTSD symptoms, distorted sexual
development, as well as a higher risk of have multiple sex partners,
becoming pregnant as teenagers, and experiencing sexual assault as
adults. The Journal of the American Academy of Child and Adolescent
Psychiatry documents studies linking child sexual abuse with higher
rates of major depression, anxiety disorder, conduct disorder,
substance use disorder, and suicidal behavior. The American Academy of
Experts in Traumatic Stress documents long-term effects of child sexual
abuse to include problems in relationships and intimacy, self-esteem,
mental health disorders, and alcohol abuse. The need for restitution is
clear.
Clinical sources note that child sexual abuse victims, who are
involved in lengthy unresolved criminal cases, appear to stay
symptomatic for longer periods. Providing resolution and restitution
brings relief to these child victims. That is why we need to act to
provide clarity in the restitution statute and to provide more certain
relief to those harmed by child pornography.
Congress could provide additional statutory guidance by providing a
right of contribution for restitution payments among multiple convicted
defendants, or by directing sentencing courts to assess liability for a
lifetime of the full amount of a victim's losses for each defendant.
However, the Court in Paroline cautioned the possible Constitutional
concerns in these approaches. I look forward to considering the
opinions of today's witnesses to determine the best, workable statutory
solution to providing restitution.
The witnesses today in their written statements have each addressed
the possibility of creating a separate fund to more readily assist
victims. We should consider these and other remedies to more
effectively provide resources to child victims.
Child pornography offenses, which involve the internet, a number of
wrong-doers, and individual victims pose unique restitution issues.
There will be continuing difficulties getting restitution for victims
with the requirements enunciated in Paroline, unless there is further
statutory guidance from Congress. I look forward to working with my
Judiciary Committee colleagues to develop legislation to provide this
guidance.
It is my hope that the hearing today will help refine the issues,
provide a voice to child crime victims, and ultimately deliver
restitution to those who most need it.
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Member, Committee on the
Judiciary
Today's hearing concerns finding the best means to provide
restitution to victims of child pornography in cases where the measure
of liability is in question.
In doing so, we need to remember that it is for children who have
been harmed by exploitation that we are here today. These children
represent a potential lifetime of repeated injury from the continued
recirculation of these images. One of those documented child victims,
known as `Amy' was the subject of the Supreme Court case, Paroline v.
United States. Due to the ambiguity of the current restitution statute,
18 U.S.C. 2259, the Court was unable to award Amy full restitution. We
need to address the importance of the ruling by the Supreme Court in
Paroline.
However, as we seek to redress the harm we have identified, we
should avoid a legislative reaction of overcriminalization. I'm
concerned that placing mandatory minimum punishments into any
legislation may produce unforeseen and unwanted results. The Court in
its decision articulated familiar themes: measured judicial discretion,
restitution based on unique facts, articulated statutorily imposed
sentencing factors. We would be well advised to heed these signposts.
By engaging with a broad range of stakeholders through various
means, such as the bipartisan Task Force on Overcriminalization and
Overfederalization, we have been considering a range of issues, one of
which is mandatory minimum sentencing reform. As a general matter, I am
concerned about expanding mandatory minimums and reducing judicial
discretion, even in the context of financial penalties, as opposed to
prison terms.
Finally, as we address the best way to legislatively facilitate
payment of restitution, we should be both true to fairness and the
rights of victims to be made whole. To that end, we need to look very
closely at the advisability of holding defendants liable for harms
caused by other individual's conduct, as the Court cautioned, in this,
a criminal case context. If and when legislation moves in this
Committee, I plan to work on a bipartisan basis to make sure the
necessary modifications are made to any legislation.
I look forward to the discussion before us, and to considering
remedies for these child victims.
Prepared Statement of Victims of Child Pornography
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