Wednesday, March 31, 2010

Restitution and Proximate Cause

As Wikipedia explains, in law “proximate cause” is “an event sufficiently related to a legally recognizable injury to be held the cause of that injury.”

The Wikipedia entry is really dealing with proximate cause in civil law, especially tort law. As the entry notes, the civil concept of proximate cause includes both actual cause (“but-for” cause, i.e., the harm would not have occurred but for the event that is alleged to have set it in motion) and a more amorphous notion which, as Wikipedia correctly notes, tends to be a device courts use to control the scope of liability in civil cases.

This post is not about a civil case. It’s about a federal criminal case in which proximate cause was used to challenge a court’s order of restitution to the victim of the crime. The case is U.S. v. Woods, 2010 WL 724194 (U.S. District Court for the Northern District of Iowa 2010), and this is how it arose:

Vicky is 19 years of age. [Her] biological father sexually abused her when Vicky was 10 and 11 years old. [He] photographed and videotaped the sexual abuse. Several years later, Vicky was identified as the victim depicted in what has become known as the `Vicky Series.’ The `Vicky Series’ is a collection of child pornography . . . that depicts Vicky's sexual abuse at the hands of her father. . . . [P]eople throughout the world have downloaded and viewed the images of the abuse.

The child pornography found on [Thomas Woods’] computer included six video images and three still images from the `Vicky Series.’ . . .

U.S. v. Woods, supra. Woods was charged with receiving and possessing child pornography in violation of 18 U.S. Code § 2252A. He pled guilty to the receiving child pornography count (Count 1), which initiated the process of imposing sentence on him. U.S. v. Woods, supra. The issue of restitution arose during the sentencing process. As the federal district court judge noted,

Vicky seeks restitution for `$170,345.00 to $193,025.00 in the cost of therapy, $28,366.10 in expenses related to restitution requests . . . and $3,500.00 in attorneys fees.’ . . . In sum, Vicky requests $202,211.10 to $224,891.10 in restitution for her losses. The government seeks this amount on Vicky's behalf.

At the [sentencing] Hearing, the . . . court received as evidence a `Forensic Psychological Examination’ (`Report’) prepared by Randall L. Green, a clinical psychologist. Dr. Green interviewed Vicky on April 10, 2009 and . . . concluded that Vicky `suffered significant, permanent psychological damage as a direct result of the knowledge that images of her victimization, humiliation and exploitation have been downloaded and viewed by numerous individuals.’ Dr. Green believes that Vicky will `continue to suffer from the knowledge and belief that those images of her childhood abuse are at high probability to continue to be downloaded for prurient purposes.’

Among the specific harms Vicky suffered or continues to suffer, Dr. Green . . . reduced academic performance, alcohol abuse, anger/resentment, anxiety, depression, distrust of men, lost earnings, insomnia and sleep disturbances, `reactivation’ of trauma-related reminders and shame and embarrassment. . . . [He] estimated that the recommended therapy for Vicky would cost between $126,365 and $128,005, plus medication costs.

The court also received a `Psychological Status Report Summary’ (`Supplemental Report’) prepared by Dr. Green. On November 6, 2009, [he] conducted a follow-up interview with Vicky. . . . [He] found Vicky's emotional well-being had deteriorated since his initial Report. Dr. Green attributes this to . . . Vicky's live statements at the sentencing hearings of several defendants who possessed her images, her receipt of more `victim notifications’ and several attempts by individuals to contact her over the Internet. Dr. Green now estimates Vicky's costs for therapeutic recommendations to be between $170,345 and $193,025.

U.S. v. Woods, supra. In considering the sentence and possible restitution to be imposed on Woods, the court also accepted a letter from Vicky, in which she wrote:

I learn about each [defendant who possessed the `Vicky Series’] because of the Victim Notices. I have a right to know who has the pictures of me. The Notice puts name on the fear that I already had and also adds to it. When I learn about one defendant having downloaded the pictures of me, it adds to my paranoia, it makes me feel again like I was being abused by another man who had been leering at pictures of my naked body being tortured, it gives me chills to think about it. I live in fear that any of them[ ] may try to find me and contact me and do something to me.

U.S. v. Woods, supra. Woods objected to an award of restitution to “based upon a lack of proximate cause between his offense of conviction and the areas of restitution sought by the victim.” U.S. v. Woods, supra. The prosecution argued that “Vicky is a victim of [Woods’] who was directly and proximately harmed by [his] conduct.” U.S. v. Woods, supra. In ruling on the issue, the federal judge addressed two issues: (i) whether restitution was mandatory or discretionary and (ii) whether it was appropriate in this case. U.S. v. Woods, supra.

On the first issue, the court noted that 18 U.S. Code § 2259 makes restitution mandatory for “Chapter 110 offenses” and that possessing and receiving child pornography “are Chapter 100 offenses which would typically be subject to the mandatory restitution provision.” U.S. v. Woods, supra. (Section 2252A of Title 18 of the U.S. Code is in Chapter 110 of that title, which makes then Chapter 110 offenses.) The judge ultimately held, however, that the mandatory restitution provision didn’t apply here because Woods pled guilty to receiving child pornography and the images from the Vicky Series were not part of the factual basis for that count (though they were part of the factual basis for the possessing child pornography count). U.S. v. Woods, supra. In other words, the count to which he pled guilty was not based on images from the Vicky Series.

The judge then noted that § 3663 of Title 18 of the U.S. Code gives courts discretion to award restitution in sentencing for Title 18 offenses; possessing child pornography is a Title 18 offense, as is receiving child pornography. U.S. v. Woods, supra. The judge didn’t need to decide if Woods’ pleading guilty to a count that didn’t involve images form the Vicky Series prevented her from imposing restitution because in his plea agreement Woods agreed to pay restitution to “victims of the offense to which he is pleading guilty as well as to all those victimized as part of the same course of conduct. . . . [which’ includes any offense dismissed as a result of this plea agreement”. U.S. v. Woods, supra. The judge therefore found that she had discretion to order Woods to pay restitution to Vicky, if that seemed appropriate. U.S. v. Woods, supra.

Woods, remember, objected to restitution on the grounds that he wasn’t the proximate cause of the injuries for which Vicky sought restitution. The judge, therefore, addressed the issue of causation. She found, first, that § 2259 (which didn’t apply here) “requires a causal connection between the offense of conviction and the victim’s harm.” U.S. v. Woods, supra. She found a similar requirement in § 3663, which did apply here: “Courts have . . . required some showing of proximate cause for discretionary restitution awards under § 3663. This requirement is gleaned from the statute's definition of `victim’ as a person who is `directly and proximately harmed by the commission of an offense for which restitution may be ordered’”. U.S. v. Woods, supra (quoting § 3663(a)(2)).

The 8th Circuit Court of Appeals, which is the court whose decisions are binding on federal district courts in Iowa, has not “developed a precise causation standard for restitution awards”, so this judge relied on decisions from other federal Courts of Appeal. U.S. v. Woods, supra. She noted that the 1st Circuit Court of Appeals held, in U.S. v. Vaknin, 112 F.3d 579 (1997), that in seeking restitution the prosecution “must show not only that a particular loss would not have occurred but for the conduct underlying the offense of conviction, but also that the causal nexus between the conduct and the loss is not too attenuated (either factually or temporally).” U.S. v. Woods, supra. The judge therefore found that restitution would only be appropriate in this case if the government proved by a preponderance of the evidence that Woods’ conduct was the proximate cause of Vicky’s losses. U.S. v. Woods, supra.

In analyzing causation in this case, the judge said it was “abundantly clear . . . that Vicky has been, and continues to be, harmed by the . . . knowledge of individuals who receive and possess images depicting her abuse” and will require “extensive counseling” to deal with the harm done by the dissemination of the images. U.S. v. Woods, supra. She did not, though, find that the government proved the causal connection between that harm and Woods’ conduct necessary for her to award restitution:

[T]here is no evidence . . . as to what losses were caused by [Woods’] possession of her images. Neither Dr. Green's Report nor his Supplemental Report identify any particular loss attributable to [Woods’] possession of Vicky's images. [His] name is not mentioned in either document. None of the documentation offered in support of Vicky's restitution request mentions [his] name or the impact [his offense had on [her]. . . .

The court is unable to determine to any reasonable certainty what losses are attributable to the original abuse by Vicky's father, what losses are attributable to others who have received, distributed or possessed the images or what losses were caused by [Woods’] conduct. . . .

[I]t is the court's duty . . . to determine whether [Woods] can be ordered to pay restitution to Vicky. To do so, the court must be able to determine, within reason, what losses Vicky suffered as a result of [his] conduct. . . . [T]he court is unable to make this determination.

U.S. v. Woods, supra. The judge declined to order restitution and said she would sentence Woods “on a date and time set forth by separate order.” U.S. v. Woods, supra. According to this news story, on March 26 Woods was sentenced to serve 97 months in prison, followed by 10 years of supervised release.

In her opinion, the Woods judge noted that “victims and the government have only recently begun seeking restitution from those who receive and/or possess child pornography.” U.S. v. Woods, supra. She explained that courts are taking one of three approaches to the issue: (i) some award the entire amount of restitution requested without conducting a proximate cause analysis; (ii) others conduct a proximate cause analysis and often refuse to award restitution; and (iii) some have “adopted a set amount” of restitution for each defendant convicted of possessing child pornography. U.S. v. Woods, supra. For example, the Central District of California seems to routinely order restitution of $5000 while the Eastern District of California routinely orders restitution of $3000.” U.S. v. Woods, supra.


Anonymous said...

Excellent post. I'm forwarding it along to my professor. Thanks.

Susan Brenner said...

Glad you liked it . . . thanks for letting me know.

Anonymous said...

This 'restitution' plan is nothing but a joke and a scam. The girl in question, whose name is Kylie Freeman (she 'outed' herself by appearing on the TV show "America's Most Wanted", is just in it for the money.

Have you even seen the videos in question? I have. There are probably 10 or so videos of her out there, freely available on ANY P2P site. I don't have any of the videos, but I have seen them. She is clearly a willing participate who enjoyed each and every sex act that she did. Granted, children cannot consent to sex, but in this case it was obvious that she was getting A LOT of pleasure out of what she was doing and the two obviously had a loving relationship. There was no force being used and at no time in any of the videos did Kylie (aka 'Vicky') show any kind of pain or reluctance or anything else that would make one think that she did not want to do what she was doing.

In case you do not know, these videos are famous! They are all over the 'net and they have been for many years. So how is it possible for someone to demand money from another person when that other person did not know or have any contact with the first person? When that second person played no role in the alleged abuse of that first person and, in fact, was many years and miles away from that first person?

That attorney in New York state who has been filing claims on the behalf of many alleged child porn 'victims' is only doing this to get a name for himself.

One other point worth mentioning is how do any of these people expect to get any restitution paid to them? The defendant is sentenced to years in prison and since the Feds do not have parole they pretty much do all of their time. So when they get out there is nothing and no one who can compel them to pay anything, and since you cannot be jailed in the US for failure to pay a debt, there is nothing that these so-called victims can do.

I believe that restitution should ONLY be assessed against the person who makes the child porn, not people who view the child porn many years later and thousands of miles away.

Anonymous said...

Doesn't matter if she liked it or not. She was a KID! Her acts were posted on the Internet where her very identity and safety are compromised now. She didn't know about them when she went on AMW and now she has to face that being one of the most stalked post-teens in the world. How many sickos are out there who are trying to track her down? She has to live with that. If I was her or her parents, I'd want every penny to keep myself safe. So, considering you talk about the videos in your post means that you've watched them, making you just as criminal as the guy mentioned in Susan's post and your Public IP is posted somewhere within. That's not very smart and makes you just as traceable.

Kylie has done a good job of covering her trail, but sooner or later, someone will find her. If you were her, how paranoid would you be of getting kidnapped or worse?

Anonymous said...

Doesn't matter if she liked it or not. She was a KID! Her acts were posted on the Internet where her very identity and safety are compromised now. She didn't know about them when she went on AMW and now she has to face that being one of the most stalked post-teens in the world. How many sickos are out there who are trying to track her down? She has to live with that. If I was her or her parents, I'd want every penny to keep myself safe. So, considering you talk about the videos in your post means that you've watched them, making you just as criminal as the guy mentioned in Susan's post and your Public IP is posted somewhere within. That's not very smart and makes you just as traceable.

Kylie has done a good job of covering her trail, but sooner or later, someone will find her. If you were her, how paranoid would you be of getting kidnapped or worse?

Anonymous said...

No one is saying that making the videos was a good idea or that she could legally consent to making them - there is no justification for what happened and no one is saying that these are 'okay.' The issue here is one of criminal restitution and proximate cause. All of the emotional and physical damages that you described were caused by her father. He is the one that took the videos and he is the one that posted them onto the internet. The guys that see the videos years later did nothing to her. I am sure that John Travolta wishes he could take back "Battlefield Earth," but how does my watching it cause him physical pain when I have done nothing to him and had no contact with him or with anyone known to him?

Allegations of stalking by unknown persons have nothing to do with this. Perhaps this is just scare tactics on the part of a greedy lawyer. I don't see how her fears of an unknown event that might or might not happen can translate into a specific dollar amount being ordered as criminal restitution. And how do you divide up the "responsibility" among all of the millions of people who have seen the videos all across the world. If you could somehow say that she has suffered $1 million in emotional damages - and prove that, then how do you properly divvy up the responsibility for paying this among all past, present, and future defendants?

Regarding your claim that she did not know of the videos when she went on AMW, that is just plain BS as the facts do not support your contention! Criminal charges were filed against her dad way back in March 2006, which was over 1 1/2 years before she appeared on national TV in front of an audience of MILLIONS (the interview is on YouTube still). So, yeah, I am pretty sure she did know of the internet videos. And even if she didn't know about about them at that specific point, she sure did know about them when she and her family were running around giving media interviews after AMW was on! She even visited Washington, DC, her step-dad, Chris, has given numerous media interviews, (, she also made a website for other so-called victims ( and she has a Facebook page in which one can see her picture, schools attended, and where she is from (a small town in Washington state)! Doesn't sound like she is hiding to me. (It took me less than 2 minutes to find this stuff out via Google just right now when I wanted to test the validity of your claim that she is in hiding.)

If she and her family had kept their faces off of national TV then no one now would have known who she is and where she lives. So is it fair to want to make others pay this girl 'restitution' when she, herself, thrust her identity and location into the public spotlight? If people are stalking her (which I serious doubt), it is her own fault.

Lastly, maybe in the country that I am posting from looking at those videos so long ago was and is perfectly legal. In addition, I use IP anonymizer software via TOR so, no, my IP is not traceable at all. Maybe is traceable to someone else's house or business, but not to mine.

Anonymous said...

Then tell me, where is she now? ;)

Anonymous said...

So if she is posting on the Internet such as facebook, when was her last login? Im pretty sure she isn't as active on the internet. Thus, covering her tracks.

Anonymous said...

If she is on the internet -at all-, she is NOT "covering her tracks".

Anonymous said...

She works for a company in the AU and is still using her name,she is on the company website and is quite easy to find.

Anonymous said...

I agree. She liked it, and now she wants money. She's only uspset cus people found out she enjoyed it and she's embarassed. She doesn't deserve a cent. She wasn't some helpless infant. She was enjoying sex with daddy and whoops, people found out. Cry me a river.