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National Crime Victim Law Institute

Paroline v. United States, No. 12-8561 (2014)

April 23, 2014

The United States Supreme Court issued its opinion today in a long continuing case that NCVLI has been involved with since 2009.  In the case defendant was convicted of possessing images of Amy’s childhood rape and the Court reviewed defendant’s appeal of a Fifth Circuit Court of Appeals decision ordering defendant to pay restitution to “Amy” (the victim in the case).  The Court granted review on this limited question: “What, if any, causal relationship or nexus between the defendant’s conduct and the victim’s harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. § 2259 [the federal statute governing child pornography]?”  NCVLI participated in this proceeding as amicus curiae, along with co-amici Arizona Voice for Crime Victims, Child Justice, Inc., National Center for Victims of Crime, National Organization of Victim Assistance, and Maryland Crime Victims’ Resource Center, Inc., arguing that the victim is entitled to full restitution without a specific showing of causation related to a possessor.  In addition, the students in the Lewis & Clark Law School Crime Victim Litigation Clinic assisted with an amicus brief jointly submitted by the Domestic Violence Legal Empowerment and Appeals Project, Legal Momentum, the National Coalition Against Domestic Violence, Professor Margaret Drew, and Professor Leigh Goodmark, presenting the Court with arguments regarding how the case will impact future interpretation of the Violence Against Women Act.  NCVLI’s position is reflected in Justice Sotomayor’s dissent, which—along with the majority opinion—is summarized below.


Paroline v. United States, — S. Ct. —, No. 12-8561, 2014 WL 1612426 (Apr. 23, 2014) (slip opinion).  Petitioner was convicted after a guilty plea to one count of possessing between 150 and 300 images of child pornography, including two images depicting the child sexual abuse of the victim known as “Amy.”  Petitioner appealed the decision of the United States Court of Appeals for the Fifth Circuit, which reversed the district court’s denial of the victim’s request for close to $3.4 million in restitution under 18 U.S.C. § 2259—the mandatory restitution statute that applies to offenses involving sexual exploitation of children—and held that each defendant who possessed the victim’s images should be made liable for the victim’s entire losses, even though other offenders played a role in causing those losses. The United States Supreme Court—accepting review to resolve a conflict in the courts of appeals concerning the proper causation standard to apply in cases subject to restitution under Section 2259—held that the Fifth Circuit erred in failing to construe Section 2259 as including a general proximate-cause requirement for all types of losses.  In reaching this holding, the Court concluded that Section 2259’s “proximate result” language in the final “catchall category” of recoverable losses must be read to apply to all categories of losses enumerated in the statute.  The Court explained that interpreting Section 2259 to include a proximate cause limitation comports with “common sense” as it “forecloses liability in situations where the causal link between conduct and result is so attenuated that the so-called consequence is more akin to mere fortuity.”  The Court found that “the victim’s costs of treatment and lost income resulting from the trauma of knowing that images of her abuse are being viewed over and over are direct and foreseeable results of child- pornography crimes, including possession … .”  The Court also held that the district court erred in applying the traditional “but-for” causation test to establish factual causation under Section 2259.   In reaching this holding, the Court observed that the statute does not explicitly require “but-for” causation and legal traditional allows for a less stringent test to establish factual causation when circumstances warrant it.  The Court determined that restitution is “mandatory” under Section 2259 to reflect “Congress’ clear intent that victims of child pornography be compensated by the perpetrators who contributed to their anguish.”  The Court found that requiring a strict “but-for” standard to establish causation in fact would violate the clear congressional intent because it would result in no restitution in cases like this where proving specific losses in a “but-for sense” is incredibly difficult.  The Court also determined that denying restitution in a case like this “would also be at odds with the penological purposes of §2259’s mandatory restitution scheme,” which include the intent to “impress upon offenders that their conduct produces concrete and devastating harms for real, identifiable victims.”  The Court explained that it would be inconsistent with this purpose to construe the restitution statute “in a way that leaves offenders with the mistaken impression that child-pornography possession (at least where the images are in wide circulation) is a victimless crime.”  The Court adopted an approach that relies upon the district courts’ “discretion and sound judgment[,]”  instructing district courts to “order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.”  The Court stated that “a court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.” The Court noted that the factors that district courts may consider include, inter alia, “the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; [and] how many images of the victim the defendant possessed.”  For these reasons, the Court vacated the court of appeal’s judgment and remanded the case for further proceedings in a manner consistent with this decision.  Justice Sotomayor filed one of two dissenting opinions that issued in this case, concluding that the majority’s opinion “cannot be reconciled with the law that Congress enacted.”  Justice Sotomayor explained that “Congress mandated restitution for the ‘full amount of the victim’s losses,’ §2259(b)(1), and did so within the framework of settled tort law principles that treat defendants like [petitioner] jointly and severally liable for the indivisible consequences of their intentional, concerted conduct.”  With respect to the proper allocation of losses among defendants, the dissent further explained that “at the end of the day, the question of how to allocate losses among defendants is really a choice between placing the risk of loss on the defendants (since one who is caught first may be required to pay more than his fair share) or the victim (since an apportionment regime would risk preventing her from obtaining full recovery).  Whatever the merits of placing the risk of loss on a victim in the context of a negligence-based offense, Congress evidently struck the balance quite differently in this context, placing the risk on the morally culpable possessors of child pornography and not their innocent child victims.”  Justice Sotomayor concluded by noting that Congress “will have the final say[,]” and that if it wishes to recodify its mandate of full restitution, it may do so in even clearer language, perhaps amending the statute “to include the term aggregate causation.”


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