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 8^th 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 1^st 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.