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2nd Circuit Reverses Child Porn Restitution Order

Defendant had no personal contact with the minor he had photos of, so he caused her no harm

2nd Circuit Reverses Child Porn Restitution Order

ALBANY, N.Y.—In a stunning reversal of course in child pornography convictions, the Second Circuit Court of Appeals yesterday threw out a lower court order that Gerald Aumais, who had pled guilty to possessing and transporting images of minors engaged in sexually explicit conduct 13 months ago, pay restitution to one "Amy" (not her real name), on the grounds that Aumais had not personally caused the child any harm.

The facts of the case reflect that Aumais was arrested on November 16, 2008, while crossing the border from Canada to New York, and a search of his computer revealed thousands of child porn images and hundreds of child porn videos, some of which were of Amy, whose uncle had sexually abused her over a period of years and phtographically recorded that abuse.

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In connection with Aumais' guilty plea, Amy filed a Victim Impact Statement seeking $3.3 million in restitution from him because, according to the opinion authored by Chief Judge Dennis Jacobs, she was unable to forget the abuse she suffered at the hands of the uncle (who took the pictures) because the "disgusting images of what he did to [her] are still out there on the internet." She said she lives in fear that she will be recognized in the pictures that remain on the internet and will be "humiliated all over again."

After an evidentiary hearing on the restitution claim on December 22, 2009, Magistrate Judge David Homer ordered Aumais to pay Amy $48,483, based largely on the testimony of Dr. Joyanna Silberg, who testified that she had examined Amy on three occasions, the last one being on November 10, 2008, six days before Aumais had been arrested. Dr. Silberg stated that Amy had been abused by her uncle between the ages of 4 and about 7 or 8; that she underwent treatment for the abuse and had been able to "function[] pretty well normally" until she learned that some of the abuse images were being traded on the internet. This, the doctor said, caused her to fear "being at parties" and of "being in public gatherings," and that she felt a "sense of pervasive helplessness" which caused her to have difficulty coping with daily living such that she began biting her nails "to the point of bleeding, took to alcohol, and could not finish college."

It was only after being contacted by the National Center for Missing and Exploited Children that Amy learned that some of her images were on Aumais' computer, and she filed her impact statement thereafter.

But while Aumais' Presentence Report and Recommendation noted that "[t]here is no question that consumers, such as Aumais, contribute to the exploitation of child victims, such as Amy, depicted in the child pornography they possess," and Judge Homer found that "the uncle's horrific acts of sexual abuse, production of the images, and distribution of those images to others unquestionably constituted the principal cause of the losses identified by Amy," the Second Circuit panel had trouble putting those two facts together.

"We agree with the majority of circuits and hold that under [18 U.S.C. §2259, a victim’s losses must be proximately caused by the defendant’s offense," the appeals panel ruled, adding later that, "While the magistrate judge’s findings of fact are supported by evidence, we disagree that those facts establish a causal connection between Aumais' possession of Amy's images and Amy's losses."

"The magistrate judge found that 'Amy had no direct contact with Aumais nor even knew of his existence,' the panel's ruling continued. "Amy's Victim Impact Statement makes no mention of Aumais (or any other possessor of her images for that matter). Moreover, Dr. Silberg's evaluation of Amy, upon which the doctor's testimony was based, took place on June 11-12, 2008, July 29, 2008, and November 10, 2008, whereas Aumais was not arrested at the border until November 16, 2008. While Dr. Silberg may describe generally what Amy suffers from knowing that people possess her images, Dr. Silberg cannot speak to the impact on Amy caused by this defendant.... Here, in the absence of evidence linking Aumais' possession to any loss suffered by Amy, we cannot agree with the magistrate judge's conclusion that 'Aumais' conduct remains a substantial cause of [Amy's] harm'."

The panel was careful to note that its ruling "does not categorically foreclose payment of restitution to victims of child pornography from a defendant who possesses their pornographic images. We have no basis for rejecting Dr. Silberg's findings that Amy has suffered greatly and will require counseling well into the future. But where the Victim Impact Statement and the psychological evaluation were drafted before the defendant was even arrested—or might as well have been—we hold as a matter of law that the victim's loss was not proximately caused by a defendant's possession of the victim’s image."

What's unknown at this point is what effect the Second Circuit's ruling will have on similar restitution orders and claims.

"It will be very interesting to see whether prosecutors or the folks who have been representing Amy and other victims in seeking restitutional awards will pursue further review of this ruling," wrote a contributor to the Sentencing Law and Policy blog. "The forcefulness of this ruling (which comes on the heels of a similar pro-defendant ruling from the Ninth Circuit a few months ago) may lead many child porn defendants, and even those outside of the Second Circuit, to resist even more forcefully these kind of restitution claims in district courts.  For that reason (and others), those who advocate for restitution awards in these kinds of cases may be especially eager to at least try to have Aumais further reviewed."






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Mark Kernes

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