ATLANTA, Ga.—The Eleventh Circuit Court of Appeals today became the latest circuit to uphold the requirement that defendants possessing child pornography must pay restitution to one or more of the children whose images appear in the material on which the defendant was convicted.
The Eleventh Circuit becomes the second federal appellate circuit to affirm the 18 U.S.C. §2259 restitution law, and that law is unlikely to be successfully challenged in other jurisdictions.
The case is U.S. v. Ricky Lee McDaniel, where at trial, a jury found that the defendant had illegally possessed over 600 child porn images, and the judge later sentenced McDaneil to five years' imprisonment, three years of probation to follow, and ordered him to pay $12,700 in restitution to one "Vicky" whose image was among those in McDaniel's collection.
The restitution order was based on the fact that the National Center for Missing and Exploited Children (NCMEC) had taken the images McDaniel had possessed and compared them with images of known child porn victims, discovered that one was of "Vicky," a 10-year-old who had been raped and otherwise sexually abused by her father, and notified her of its findings.
According to the opinion authored by Judge Charles R. Wilson, after being informed of the NCMEC's findings, "Vicky moved, through both the Government and her own counsel, for restitution pursuant to the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. §2259. Vicky sought approximately $185,000 for past psychological services and future counseling and therapy, and $3,500 in attorneys' fees."
McDaniel appealed the restitution order on the basis that while §2259 requires that restitution be paid for "any offense under this chapter," it was unclear whether "Vicky" could claim to have directly been a "victim" of McDaniel under the defintion of "victim" found in the same statute.
"For purposes of this section," §2259 reads in pertinent part, "the term 'victim' means the individual harmed as a result of a commission of a crime under this chapter."
Moreover, at the restitution hearing, the government called Dr. Randall Green to testify as to "Vicky"'s state of mind as a child porn victim.
"Dr. Green evaluated Vicky in April and November of 2009, diagnosing her with post-traumatic stress disorder, dissociative disorder, and depression," the Eleventh Circuit opinion reads. "Dr. Green testified that Vicky’s abuse and the circulation of her images on the Internet have caused Vicky to suffer severe behavioral problems. Dr. Green 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.' She also suffers knowing that pedophiles are using images of her abuse to groom future victims. Dr. Green opined that Vicky would need approximately $166,000 to $188,000 of future counseling or therapy because of the damages she incurred from the original abuse and her awareness of the images on the Internet."
The Eleventh Circuit discounted McDaniel's arguments.
"[W]e agree with the district court that McDaniel 'harmed' Vicky under the meaning of section 2259(c) by possessing images of her sexual abuse as a minor," Judge Wilson wrote. "In sentencing appeals, we have held that the minors depicted in child pornography are the 'primary victims' not only when the photographs are taken, 'but also when they are subsequently transported or distributed from one person to another.' Although 'an argument can be made that the production of child pornography may be more immediately harmful to the child involved, the dissemination of that material certainly exacerbates that harm, not only by constituting a continuing invasion of privacy but by providing the very market that led to the creation of the images in the first place.'" [Citations omitted here and below]
As for McDaniel's argument that he himself had not directly caused "Vicky" any harm, the Eleventh Circuit once again disagreed.
"Dr. Green explained that each NCMEC notification adds to the 'slow acid drip' of trauma and exacerbates Vicky’s emotional issues," the opinion states. "He testified that each notification is 'extraordinarily distressing and emotionally painful' to Vicky and that Vicky suffers 'each time an individual views an image depicting her abuse'."
However, as commentator Douglas A. Berman points out in his Sentencing Law and Policy blog, "Vicky would never have known McDaniel had possessed her picture but for the feds submitting the picture to the NCMEC and the NCMEC alerting Vicky that yet another person had her picture. In lots of jurisdictions, the independent acts of the feds and the NCMEC might well be viewed as 'breaking the chain' of causation between McDaniel's offense of possession and the 'slow acid drip' harms she experiences."
Berman also questioned why the trial court had not ordered McDaniel to pay the full cost of "Vicky's" present and future medical and psychiatric treatment—but perhaps that's a question that will be answered by some future opinion.