Thursday, March 1, 2012

1st Cir. affirms restitution order to CP series victim "Vicky"

The First Circuit held that a distributor of child pornography may be ordered to pay restitution to the child victim portrayed in those images (United States v. Kearney, 672 F.3d 81 (1st Cir. 2012)).

Federal courts have long disagreed as to the requirements of a restitution order under 18 U.S.C. § 2259 for child pornography. These cases often concern a distributor of a pornography series (referred to by aliases such as "Amy" or "Vicky"), and the issues the court must address are (1) whether the child portrayed in the images is a victim, and (2) whether the defendant proximately caused the victim's damages. Decisions on these issues have resulted in a circuit split (read more here, here, and here), and the Supreme Court has denied cert on the issue (discussed here). However, it is important to note that the Fifth Circuit, which is the odd man out, recently decided to rehear its case on the subject en banc (United States v. Unknown (In re Unknown), 2012 U.S. App. LEXIS 1514 (5th Cir. 2012) (vacating Paroline)).

In Kearney, the First Circuit addressed these issues in a child pornography possession and distribution case involving the "Vicky" series. The court first found that "Vicky is plainly a victim of Kearney's crimes" as "[t]he  pornography's continued existence causes the child victims continuing harm by haunting the children in years to come." On the probable cause issue, the court held:
We hold that the proximate cause requirement was satisfied here, because Kearney's actions resulted in identifiable losses as outlined in the expert reports and Vicky's victim impact statements. ... We do not suggest that in all instances where there is a victim within the meaning of the statute, the victim is entitled to restitution....
The court also upheld the calculation of the restitution amount of $3,800, "which was arrived at by averaging the awards Vicky had received in thirty-three other restitution cases, after discarding the highest and lowest values awarded."


  1. "...causes the child victims continuing harm by haunting the children in years to come.", which appears in a lot of these decisions, comes from a law review paper by David Shouvlin, (now) attorney. Not a psychologist, social worker, or even a pediatrician. A law student.

    1. According to the article (17 Wake Forest L. Rev. 535), Shouvlin (who had worked for a nonprofit that cared for runaway children) was a practicing attorney when the article was published. The Supreme Court first picked it up two years later in Ferber, introducing the quote with "As one authority has explained:...." Now, the courts just seem to cite each other, leaving out the fact that it originated with a law review article. Very interesting - thanks for pointing it out.