Restitution and Child Pornography

Restitution can be ordered in child pornography cases.

The Mandatory Victim Restitution Act (18 U.S.C. §3663A) requires that a victim of a federal crime be given restitution for injuries or damages suffered as a result of the crime. Usually this Act applies to victims suffering economic losses, but it also applies to child pornography cases, (along with another law dealing specifically with losses restitution in child pornography cases, 18 U.S.C. 2259) Victim losses may include:

  • Medical services relating to physical, psychiatric, or psychological care;
  • Physical and occupational therapy or rehabilitation;
  • Lost income; attorneys’ fees; and
  • Any other losses suffered by the victim as a proximate result of the offense.
A precedent has been set for restitution simply by possessing the photos of a victim.

A defendant can now be ordered to pay restitution for these losses even if the defendant’s only connection to the victim is that he has a copy in his possession. The defendant can be ordered to pay restitution to the victim even though the defendant had nothing to do with the abuse and merely possessed the computer image. Miami attorney Ken Swartz specializes in criminal trial law.

In a recent case, United States v. McDaniel, the Eleventh Circuit Court of Appeals decided that a victim who is identified as the child in a child pornographic image can be entitled to victim restitution. The defendant possessed a collection of photographs that included those of a child known as “Vicky” depicting graphic images of unspeakable sexual abuse at the hands of her own father. Now an adult, Vicky’s identity was confirmed through the National Center for Missing and Exploited Children (NCMEC) data base, and the prosecution informed her that the images of her abuse had been found and viewed by the defendant on his computer.

The victim suffers damage each time the images are viewed by another person on the internet.

At the defendant’s sentencing, the government asked the sentencing judge to order restitution for Vicky for the cost of past psychological services and cost of future counseling and therapy. The government offered an expert on the impact of psychological trauma who diagnosed her with the following psychological disorders:

  • Post traumatic stress disorder;
  • Dissociate disorder;
  • Depression;

The psychologist also “opined” that Vicky’s knowledge that her images are being disseminated on the Internet causes Vicky to suffer a continuing trauma that he compared to an ongoing slow acid drip.

The defendant was ordered to pay restitution for the harm caused to the victim on the theory that the victim suffers each time her image is viewed. “Vicky suffers every time the child pornography containing her image is traded and viewed.” The defendant was ordered to pay Vicky $12,500 in restitution and the court of appeals upheld this restitution order. Even though the defendant played no part in the making the photographs and certainly did not abuse the victim, the defendant’s conduct in merely possessing the images contributed to the “proximate cause” of the victim’s harm.

Internet crimes such as child pornography are serious crimes that require the highest quality legal representation. Ken Swartz is a Miami criminal defense lawyer with many years of experience in representing persons charged with these types of offenses. As a Florida Bar Board Certified expert in criminal trial law, he has represented hundreds of persons charged in federal crimes.

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