A man caught with pornographic images of a girl being sexually abused by her uncle has been ordered to pay restitution of nearly $50,000 to the victim, even though the defendant was a viewer of illegal images collected from the Internet who has never met the uncle or the girl.
Northern District of New York Judge Gary L. Sharpe decided that a mere "consumer" of child pornography is culpable to some degree for the emotional and psychological damage suffered by sex abuse victims under 18 U.S.C. §2259(b)(1), which allows awarding compensation for the "care required to address the long term effects of their [victims'] abuse."
While federal courts, including those in the 2nd U.S. Circuit Court of Appeals, have upheld restitution in instances where contact between children and their abusers provided the requisite causation under U.S.C. §2259, a "more difficult question" for federal courts has been in cases involving the absence of direct causation between a victim's injuries and a pornographer's actions, Sharpe ruled in United States v. Aumais, 08-cr-711.
His Aug. 3 decision affirmed in full a report, recommendation and order from U.S. Magistrate Judge David R. Homer that directed payment of $48,483 for future psychological counseling to the victim identified as "Amy," who was abused between the ages of 4 and 8.
The magistrate judge said the matter was a case of first impression in the 2nd Circuit.
Magistrate Judge Homer noted that in the only instance where a circuit court has addressed the precise circumstances involved in Aumais so far, In Re Amy F.3d WL 4928376 at 2 (Dec. 21, 2009), the New Orleans-based 5th Circuit denied a writ of mandamus to the plaintiff after a district judge held that sufficient evidence of proximate cause between a possessor of child pornography and the victim did not exist to justify a restitution award.
According to Homer's analysis, a series of district courts nationwide have split over requiring restitution for the child pornography victims who did not know their pornographers or those who viewed the images.
Magistrate Judge Homer reasoned, and Judge Sharpe agreed, that proximate cause of pornography victim to consumer need not be the only question in whether harm was caused to victims, or even the greatest cause, so long as it has been found to be a "substantial factor" in harm suffered, quoting Sheridan v. United States, 487 U.S. 392 (1988).
While defendant Gerald Aumais was almost certainly not the only one to see the images of Amy being abused since they first appeared more than 10 years ago in what has become known as the "Misty Series," Magistrate Judge Homer said restitution rests on whether she suffered "substantial" harm regardless of the proximate cause between Aumais and the victim. In Amy's case, government prosecutors and their expert witness showed that Amy continues to experience "significant emotional and psychological harm" from her abuse, the magistrate judge concluded.
Based on those factors, Aumais and others possessing images of her abuse "exacerbated the harm to her from the original abuse by her uncle both by creating a market for the transfer of those images and by perpetrating and expanding the humiliation and degradation which Amy experiences from the existence of the images," the magistrate judge wrote.
Magistrate Judge Homer, in a determination also affirmed by Judge Sharpe, knocked down the awards proposed by federal prosecutors of $2.8 million for future lost wages and $512,681 for future counseling costs to $48,483 for counseling. Judge Sharpe said he agreed with the magistrate judge that it cannot be determined at this point how the emotional damage to Amy will affect her future ability to work or to determine the cost of her future counseling needs.
BIDS FOR RESTITUTION
Gene V. Primomo, an assistant federal public defender, said Tuesday he has filed notice that he will appeal Sharpe's determination to the 2nd Circuit.
He said the ruling is potentially a "huge" one for both the defense and the prosecution in child pornography cases, given the wide electronic capability of disseminating illegal images and improving technology to trace when images are downloaded.
He said an anomaly has developed in the law, especially since federal adoption of the Adam Walsh Child Protection and Safety Act (pdf) in 2006, in which opportunities for victims to seek restitution from perpetrators have increased for the future costs of such things as medical or psychological counseling for victims.
But Primomo said the definition of "proximate cause" has not been expanded at the same time to better guide courts when otherwise anonymous "consumers" of child pornographers are financially liable for restitution to children harmed by pornographers' victimization.
Elizabeth A. Horsman, an Assistant U.S. Attorney in Plattsburgh, prosecuted the restitution case in the Northern District. She did not return a call for comment.
In February 2009, Aumais pleaded guilty to transportation in foreign commerce and possession of child pornography. Authorities said they caught him in November 2008 trying to bring pornography across the Canada-United States border at Fort Covington, N.Y., including 87 DVDs with such titles as "Under 18" and "School Girls." Authorities said there were more than 2,000 still photographs and more than 100 DVDs in his possession. Among the materials were images of Amy and her uncle. Aumais is serving 121 months in federal prison.
Before sentencing, the U.S. government sought restitution for Amy, a request that was joined by her attorney, James R. Marsh.
Marsh said authorities have now interceded in more than 500 cases seeking restitution for Amy. Under the federal Crime Victims' Rights Act of 2004, government prosecutors in most cases must pursue restitution claims if children who are victims of sex crimes request they do so.
"We're very happy with this decision," Marsh said Tuesday. "The magistrate judge made a very well-reasoned analysis of the proximate cause issue. We were disappointed about his finding on the future wages issue."
Told of Primomo's plan to appeal, Marsh, who has expanded his New York firm to deal with child pornography restitution cases, said he welcomed the appeal.