Second Circuit Overturns Child Pornography Restitution Payment Order for ‘Amy’ – United States v. Aumais

September 19, 2011 by David S. Seltzer

I’ve written here many times before as a child pornography criminal defense lawyer about the series of child pornography restitution cases brought in federal courts by a young woman known only as “Amy.” She was the unwilling star of a series of child pornography photos taken by an uncle who molested her. Because the pictures are widely traded among child pornography fans, “Amy” is able to intervene in child pornography prosecutions that include her images, and request financial restitution for the harm the images have done to her. None of these defendants are accused of molesting Amy or making the images; the legal theory is that Amy is hurt emotionally every time someone views the images and needs restitution money to pay for therapy. Interestingly, however, the Second U.S. Circuit Court of Appeals rejected that reasoning in United States v. Aumais.

Gerald Aumais, a resident of northern New York, was caught with a large cache of child pornography in the trunk of his car while crossing the border from Canada into New York state. He pleaded guilty to transporting child pornography and possession of child pornography. The pre-sentencing report in the case identified Amy, who said she was unable to forget the sexual abuse she had suffered and lives in fear of being recognized from the pictures. She sought $3.3 million in restitution. After an evidentiary hearing, the judge awarded $48,483 for future therapy, finding that Aumais had exacerbated, not caused, Amy’s problems. Aumais appealed to the Second Circuit.

The issue of restitution in this circumstance was one of first impression in the Second Circuit. However, it found that the text of the law, which pays restitution for harm “suffered by the victim as a proximate result of the offense,” should be read as requiring a showing of proximate cause. The D.C., Third, Ninth and Eleventh Circuits have found this as well, a result that denies compensation to victims in Amy’s position; the Fifth Circuit found that “proximate result” applies only to “other losses” and awarded the restitution. In siding with the larger group of circuits, the Second rejected its district court’s reasoning that the crimes by Aumais are a substantial cause of the harm to Amy. The two had never met, and in fact, the mental health expert who evaluated Amy did so before Aumais was arrested. Thus, it was impossible for that testimony to speak to the harm this particular defendant did, the Second said. Furthermore, it noted, ordering restitution from the many viewers of Amy’s images would create joint and several liability issues requiring courts to keep track of restitution awards of different amounts and purposes.

As a cyber crime criminal defense attorney, I’m pleased that the Second joined the other circuit courts — including Florida’s home circuit, the Eleventh — in finding a requirement of proximate cause. As the opinion notes, this is a standard well-established in common law, intended to restrict defendants’ liability to liability for things they themselves have done. Amy has certainly suffered harm, but I agree with the court that the harm comes from the actions of her uncle, who created and distributed the pictures. It’s understandable that courts would like to help a victim who was too young to protect herself when an awful thing happened to her, but that should not undermine the text and meaning of the law. Restitution was intended to keep criminals from profiting from exploiting children; consumers of child pornography indirectly create demand, but they do not create supply. As a child porn possession defense lawyer, I suspect this issue will eventually make it to the Supreme Court.

If you or someone you love is accused of a child pornography crime, don’t wait before you call the experienced cyber crime defense lawyers at Seltzer Law, P.A. Lead attorney David Seltzer is a former cyber crime prosecutor with the Miami-Dade State’s Attorney’s office with years of experience with serious technology crimes. For a free, confidential case evaluation, send us a message online or call 1-888-THE-DEFENSE (1-888-843-3333).

Similar blog posts:

Federal Appeals Court Partially Reverses Restitution Order – United States v. Michael Wright

Federal Appeals Court Ruling Loosens Standard of Proof for Child Porn Compensation

Adult Victim of Child Pornography Production Seeks Criminal Restitution Payments