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Mr. HATCH. Mr. President, today I will introduce legislation that will help victims of one of the most vicious crimes and one of the most evil crimes in our society: child pornography.
When Congress enacted the Violence Against Women Act more than 20 years ago--and I had a lot to do with that, and then-Senator Biden deserves an awful lot of the credit for that--the law required that the defendant in a child sexual exploitation case must pay restitution ``for the full amount of the victim's losses.'' Those losses can include lost income as well as expenses for medical services, therapy, rehabilitation, transportation, and childcare.
The restitution statute works in a straightforward way for crimes that involve individual defendants who cause specific harm to particular victims. But child pornography is different. Victims not only suffer from the initial abuse, but they continue to suffer as images of that abuse are created, distributed, and possessed. As the Supreme Court recently put it, ``Every viewing of child pornography is a repetition of the victim's abuse.''
In the Internet age, a child pornography victim's abuse never ends, but identifying everyone who contributes to that ongoing abuse can be difficult, if not impossible. A predator who commits and records the abuse might be readily identified. Those who distribute those images, however, are harder to find, and many who obtain and possess them might never be identified at all. They may get lost in the crowd. They may seek safety in shadows. But the harm they cause to victims is no less devastating.
Our challenge is to craft a restitution statute suited for this unique kind of crime. We are meeting that challenge today by introducing the Amy and Vicky Child Pornography Victim Restitution Improvement Act. Amy and Vicky are victims in two of the most widely distributed child pornography series in the world. They know how difficult it is to seek restitution for ongoing harm caused by unknown people.
The Supreme Court reviewed Amy's case and issued a decision on April 23, titled ``Paroline v. United States.'' The Court said the existing restitution statute is not suited for her kind of case because it requires proving how one defendant's possession of particular images concretely harmed an individual victim. That is simply impossible to prove and puts the burden on victims forever to chase defendants only to recover next to nothing.
Several of my colleagues, both Republican and Democratic, joined me on a legal brief in that case. We hoped that the Supreme Court would construe the existing statute in a way that was workable to protect child pornography victims. The Court chose not to do that, and it is up to Congress to craft a statute that works. I believe we are up to the task, and the bill I am introducing today is the way to do it.
The Amy and Vicky act creates an effective, balanced restitution process for victims of child pornography that responds to the Supreme Court's decision in Paroline v. United States. It does three things. First, it considers a victim's total losses, including from individuals who may not have yet been identified. This step reflects the unique nature of child pornography and its ongoing impact on its victims. Secondly, the bill requires real and timely restitution and gives judges options for making that happen. Third, it allows defendants who have contributed to the same victim's losses to spread the cost of restitution among themselves. If a victim was harmed by a single defendant, the defendant must pay full restitution for all of the victim's losses, but if a victim was harmed by multiple individuals, a judge has options for imposing restitution on a defendant, depending on the circumstances of the case. The defendant can be required to pay the full amount of the victim's losses or the defendant can pay less than the full amount but at least a statutory minimum for crimes, such as possession, distribution or production of the child pornography.
In its decision in the Paroline case, the Supreme Court discussed whether a defendant should pay full restitution for harms that he did not cause entirely by himself. At the same time, the Court recognized that the harm from child pornography flows from the trade or the continuing traffic in the images. It would be perverse to say that as more individuals contribute to a victim's harm and loss by obtaining images of her abuse, the less responsible each of them is so that the victim ends up with nothing. The Amy and Vicky act addresses these issues.
A defendant may sue others who have harmed the same victim in order to spread the costs of restitution but must do so in a timely fashion and only after the victim has received real and timely payment. As my colleagues may know, Federal law already provides for criminal defendants who must pay restitution to do so on a payment schedule suitable for their individual circumstances.
I wish to thank three groups of people who have been critical in bringing us to this point only 2 weeks after the Supreme Court's decision. First and foremost, I wish to recognize and thank both Amy and Vicky, the brave women for whom this bill is named who represent so many child pornography victims. Amy and Vicky both endorse this legislation.
I ask unanimous consent that a letter from each of them be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
Amy's Letter Supporting the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014
I am writing today to give my support to the Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2014. It is very important that this law get passed as soon as possible.
The past eight years of my life have been filled with hope and horror. Life was pretty horrible when I realized that the pictures of my childhood sex abuse were on the Internet for anyone and everyone to see. Imagine the worst most humiliating moments of your life captured for everyone to see forever. Then imagine that as a child you didn't even really know what was happening to you and you didn't want it to happen but you couldn't stop it. You were abused, raped, and hurt and this is something that other people want. They enjoy it. They can't stop collecting it and asking for it and trading it with other people. And it's you. It's your life and your pain that they are enjoying. And it never stops and you are helpless to do anything ever to stop it. That's horror.
There was also hope. Hope in finding someone who could help me like my parents and my lawyer. And hope in meeting Joy, my psychologist, who was the first person who really understood what I was going through. Then I met Cindy, my therapist, who also really helped me with all the twists and turns with what I was feeling when I tried to make sense of my life and what had happened to me as a child and what is happening to me on the Internet. I felt lots of hope when my lawyer started collecting restitution to help me pay my bills and my therapist and for a car to drive to therapy and to just try to create some kind of 'normal' life. Things were getting better and better.
Then we started having problems with the restitution law. Judges sometimes gave me just $100 and sometimes nothing at all. A few judges really got it, like when I was at the Fifth Circuit oral argument two years ago and the judges agreed that the child sex abuse images of me really do cause ongoing and long-term harm. The article by Emily Bazelon in the New York Times also really helped to tell my story so that people can understand what it's like to live with child pornography every day of your life. I was really happy to discover recently that her article received honorable mention in a contest recognizing excellence in journalism.
After a long time and a lot of court hearings all over the country, my case was finally at the Supreme Court. I couldn't believe how long and how far my case and my story had gone until I was sitting there in the Supreme Court surrounded by so many of the people who have supported me and helped me during these years. To hear the justices discussing my case and my life was really overwhelming and gave me lots of hope not just for myself but for other victims like Vicky who I met for the first time right before the oral argument. I know there were other victims there too who are too afraid to speak out and too afraid to even think about what happened to them and what is happening to them online, on the Internet, because of their childhood sexual abuse and child pornography. I hoped that at last the very important people on the Supreme Court would decide that not just me, but all the victims like me--who were so young when all these horrible things happened to us--could get the restitution we need to try and live a life like everyone else.
All the justices were respectful and it was obvious that they had thought a lot about the issues. When the oral argument finished I was really hopeful that we would win the case. It felt good doing something this significant to make a difference in the world. It was a great feeling after so many years of just trying to get it right.
My hope turned to horror when the Court decided two weeks ago that restitution was ``impossible'' for victims like me and Vicky and so many others. I couldn't believe that something which is called mandatory restitution (twice) was so hard to figure out. It just seemed like something somewhere was missing. Why, if so many people are committing this serious crime, why are the victims of that crime, who are and were children after all, left out? The Court's decision was even worse than getting no restitution at all. It was sort of like getting negative restitution. It was a horrible day.
This is why I am so happy, and hopeful, that Congress can fix this problem once and for all. Maybe if they put mandatory in the law for a third time judges will get it that restitution really really really must be given to victims! After all this time and all the hearings and appeals and the Supreme Court, I definitely agree that restitution needs improvement and hopefully this bill, the Amy and Vicky Child Pornography Restitution Improvement Act of 2014, can finally make restitution happen for all victims of this horrible crime.
Thank you for supporting this law and working so hard to give victims the hope and help they need to overcome the nightmares and memories that most others will never know. Thank you Senator Hatch and Senator Schumer for making my hope real!
Amy (no longer) Unknown.
``VICKY,'' C/O CAROL L. HEPBURN,
ATTORNEY AT LAW,
Seattle, WA, May 3, 2014.
Re Support for Amy and Vicky Child Pornography Restitution Improvement Act
Hon. Orrin Hatch,
Senator, U.S. Congress,
Dear Senator Hatch: I am the subject of the ``Vicky'' series of child pornography images, which I have been told by law enforcement agents is one of the most widely traded in the world. I am writing to you under pseudonym, and through my attorney, because I have been stalked by pedophiles in the recent past and I am concerned that disclosure of my legal name and address could lead to further stalking.
I appreciate the Supreme Court's recent recognition in the Paroline decision of the pain and loss suffered by victims and the need for mandatory restitution. This upholds both the victim's need for compensation and helping the offender realize they have hurt an actual person. The difficult part of this decision is the immense amount of time and work investment that will be required by the victim to collect restitution, without the guarantee that they will ever collect the full amount to be made whole again. With each case in which the victim seeks restitution from someone who has possessed and/or distributed their images, there is an emotional cost just for being involved in the case. It brings up the painful reality of the victim's situation of never-ending humiliation and puts it right in the victim's face once again. This decision places on the victim the huge burden of several years of litigation without any promise of closure. This is a dismal prospect because it leaves victims like Amy and myself with the choice between not pursuing restitution (which would not provide us with the help we desperately need to heal) or continuing to have this painful part of our lives in our face on a regular basis for several more years, if not decades. Without any guidelines as to how the district courts will calculate restitution from each offender, I worry that the emotional toll may not be adequately compensated for in the end. I sincerely hope that Congress will take the time to create some guidelines for restitution for victims of child pornography possession and distribution that will protect the victim and enable them to receive full compensation.
I would be happy to talk with you about this at some later time. I am currently very pregnant and due to deliver my first child in two weeks. I respectfully ask that you support this legislation and do all that you can to see that it becomes law.
Very truly yours,
Mr. HATCH. Second, I wish to thank Amy and Vicky's legal team who were instrumental in developing this legislation. They include Professor Paul Cassell at the University of Utah School of Law, one of the leading authorities on criminal law in this country, and attorneys James Marsh of New York and Carol Hepburn in Seattle. Professor Cassell argued the Paroline case before the Supreme Court, and it is the experience of these tireless advocates that informed how to respond to that decision.
Third, I wish to thank the Senators on both sides of the aisle who join me in introducing this bill. In particular, I wish to recognize the senior Senator from New York Mr. Schumer who also signed on to the legal brief I filed in the Paroline case. We serve together on the Judiciary Committee, and he has long been a champion for crime victims.
I ask unanimous consent that an editorial from today's Washington Post be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
[From the Washington Post, May 6, 2014]
Congress Needs To Act To Allow Victims of Child Sex Abuse To Recover Restitution
(By Editoria1 Board)
``I am a 19 year old girl and I am a victim of child sex abuse and child pornography. I am still discovering all the ways that the abuse and exploitation I suffer has hurt me. .....'' So began the victim impact statement of a young woman who was 8 when she was raped but whose abuse has never ended because the uncle who assaulted her took pictures that have been widely trafficked on the Internet. ``It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it,'' she wrote.
The Supreme Court did not dispute her suffering nor her right to receive restitution from viewers who take pleasure in her abuse and create the sordid market demand for child pornography. But the court set aside the $3.4 million awarded her. Now Congress needs to fix the law.
The 5-to-4 ruling in Paroline v. United States is a double-edged sword for the advocates of child pornography victims. It upholds part of the Violence Against Women Act, which calls for restitution to victims such as ``Amy Unknown,'' as the woman is identified in court papers, but it limits the amount of damages proximate to the harm caused by a specific offender--a standard that puts the burden on the victim and makes it difficult to collect damages.
Doyle Randall Paroline, who pleaded guilty to possessing child pornography that included images of Amy, was ordered by an appeals court to pay all of the $3.4 million owed to Amy for the psychological damage and lost income she has suffered. The court's majority, in an opinion written by Justice Anthony M. Kennedy, ruled that Mr. Paroline should be assessed an amount that is not trivial but comports with ``the defendant's relative role in the causal process that underlies the victim's general losses.''
Justice Kennedy acknowledged that his approach ``is not without difficulties.'' How should a court calculate the harm caused by one person's possession of an image seen by thousands? Mathematically dividing the total amount by the number of estimated views produces an amount so small as to be insulting rather than therapeutic. What, in short, is the right number between zero and $3.4 million?
The justices are right in thinking that Congress should revisit the issue. Legislation set to be introduced Wednesday by Sens. Charles E. Schumer (D-N.Y.) and Orrin G. Hatch (R-Utah) seems to be a step in the right direction, with its outline of options for full victim recovery when multiple individuals are involved and giving multiple defendants who have banned the same victim the ability to sue each other to spread the cost of restitution. The court was clear in its opinion that ``the victim should someday collect restitution for all her child pornography losses.'' Congress needs to provide the tools to turn that someday into reality.
Mr. HATCH. It says that the Amy and Vicky Child Pornography Victim Restitution Improvement Act is ``a step in the right direction.''
I urge all of my colleagues to join us in enacting this legislation. It creates a practical process and recognizes the unique kind of harm caused by child pornography and requires restitution in a manner that will actually help victims.
In her letter, Amy writes that the legislation we are introducing today ``can finally make restitution happen for all victims of this horrible crime.''
Let's get it done.
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