Child Pornography and Restitution

One of the first things law students are taught is the concept of "proximate cause." We do not hold a person liable for damages unless it was reasonably foreseeable that the person's actions would directly lead to the damages, without the intervention of any unforeseen intervening cause. We look at the "chain of causation," and make a judgment call. For instance, the drunk driver who causes an accident and injures someone is liable for those damages, but the bartender may not be. And the mechanic who fixed his car that morning and the brewer who made the beer definitely are not liable, even though without them there would have been no accident.

But like all fundamental principles, we have to remind ourselves of this one continually. Judge Ikuta does exactly that--and explains it all in detail in a comprehensive discussion of restitution in the context of federal child pornography prosecutions--in the recent case of United States v. Kennedy, 2011 WL 2675918 (9th Cir. July 11, 2011).

When Mr. Kennedy returned from an overseas trip through Sea-Tac Airport, searches of his laptop revealed over 5,000 images of child pornography. He was convicted of possession and transportation of child porn. At sentencing, two of the victims portrayed in the images – Amy and Vicky – submitted large restitution demands. Incidentally, these two women have retained attorneys who have demanded large restitution awards in cases around the country. The Court cut those demands dramatically, but still imposed a $65,000 restitution order.

On appeal, Mr. Kennedy argued that the district court’s restitution order was unlawful under 18 U.S.C. § 2259 because the government failed to prove, by a preponderance of the evidence, the measure of the losses to Amy and Vicky that were proximately caused by Kennedy’s offense. This argument required the court of appeals to consider what constitutes a sufficient chain of causation between the defendant's offense conduct and the victims' losses to justify an award of restitution under § 2259. This difficult issue of statutory interpretation has been considered, but not satisfactorily resolved, by several other courts of appeals.

The Court held that although the government need not prove that Kennedy's conduct was the sole cause of the victims’ losses, it must prove that his conduct was a “material and proximate cause” of those losses. Likewise, while there may be intervening links in the chain between Kennedy's conduct and the victims’ losses, such links must be related to Kennedy's conduct. The government had not carried its burden here, because it has not introduced any evidence establishing a causal chain between Kennedy's conduct and the specific losses incurred by Amy and Vicky. The government did not show how Kennedy's actions in transporting the images caused Amy's lost income and loss of enjoyment of life or Amy and Vicky's future counseling costs. Nor did the government introduce evidence that Amy and Vicky could have avoided certain losses had Kennedy not transported the images. Indeed, the government introduced no evidence that Amy and Vicky were even aware of Kennedy’s conduct. Consequently, the Court reversed the restitution order.

Judge Ikuta doesn’t quite say that it will be impossible for the government to prove adequate causation for restitution of child porn victims under § 2259 – but she comes awfully close. She invites Congress to “reconsider whether § 2259 [the restitution statute] is the best system for compensating the victims of child pornography offenses.”In short, Kennedy is close to the death knell for child porn restitution under § 2259 in the Ninth Circuit.

If you are being prosecuted for child pornography in state or federal court, you need a hard fighting, straight talking Phoenix Criminal Defense Attorney at your side. Contact us right away for a free consultation