11th Circuit Upholds Restitution Award to Child Depicted in Pornography for Injuries that Happened Many Years Before the Defendant Downloaded the Porn

Child pornography remains in distribution for many years after the horrid photos are taken. In some cases, you’ll see photos taken from the 1970s placing the “child” in their 40s or 50s. When an individual is arrested for a child pornography violation, The National Center for Missing and Exploited Children (“NCMEC”) compares images and identifies the children depicted within. The NCMEC then notifies an identified victim every time someone is arrested who is found to possess his or her image. At Sentencing, the Government will then introduce victim impact statements from these “victims” together with very high restitution requests. In fact there are several law firms around the country which specialize in representing these victims and in seeking six figure restitution requests from anyone who posesses their image. Some of this was covered in a recent New York Times article. All of this is part of a Department of Justice backed strategy. The theory is that these actions will make the internet a safer place for children. The Berkman Center at Harvard Law School calls the threat “overblown.”


Some courts have been resistant to these claims, but the Eleventh Circuit seems to have embraced them. In
United States v McDaniel, Eleventh Circuit No. 15038, the Court stated that the child “Vicky” was a victim. Even though her father created the pornography, she was harmed by every individual who disseminated it. The Court accepted her expert testimony that she was suffering from post-traumatic stress from these injuries. The Court however, upheld the reduction in damages by the District Court because the federal restitution statute requires ‘proximate cause’ between the Defendant’s actions and the harm. The Court followed the lead of three other circuits in reaching this result. United States v. Crandon, 173 F.3d 122, 126 (3d Cir. 1999) (determining the defendant engaged in “conduct [that] was the proximate cause of the victim’s losses” and therefore was liable to pay restitution under section 2259); United States v. Laney, 189 F.3d 954, 965 (9th Cir. 1999) (explaining that section 2259 “incorporates a requirement of proximate causation” and therefore “a causal connection between the offense of conviction and the victim’s harm”); In re Amy, 591 F.3d 792, 794 (5th Cir. 2009) (“Section 2259(b)(3) therefore arguably requires the government to establish that recoverable damages must proximately result from the ‘offense.’