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Child Pornography: Legal Analysis And Policy Implication

1405 words - 6 pages

I. Introduction
The huge profits, easy accessibility, convenient dissemination and low marginal costs have attracted an increasing number of people to trade child pornography. The ever expanding child pornography market is an affront to public decency, and the ubiquitous circulation of these images and videos brings endless and even permanent injuries to child victims engaged. One of the child pornography victims has described her feeling as “being abused over and over and over again” when she knows her images as a child being sexually abused are repeated watched. The “non-contact” defendants of child sexual abuses are offenders who possessed and circulated child pornography but did not ...view middle of the document...

Then, in subsection 2259(b)(3), the statue lists six categories of losses incurred by the victim that should be fully recovered by the defendant.
(3) Definition. – For purposes of this subsection, the term “full amount of the victim’s losses” includes any costs incurred by the victim for –
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys’ fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.
The term “proximate result” is directly mentioned in the (F) clause, and disputes mainly center on whether or not the proximate causation should be generalized to clauses (A)-(E) under subsection 2259(b)(3). On the one hand, there are strong arguments suggesting that the proximate causation universally exists among the lines of substantive criminal laws and tort laws. In light of the spirit of the law, “the defendant’s conduct must be ‘legal’ or ‘proximate’ cause of the result” . On the other hand, some courts and judges argue that the “proximate” should only be applied to clause (F). Their arguments concentrate on the structure of the statue and the uniqueness of child pornography cases.
In terms of the “full amount of the victim’s losses”, opinions are also divided. One side of the argument reasons that once a child is identified as a victim by the definition stated in §2259(c) – “the individual harmed as a result of a commission of a crime” – the victim must be entitled full restitution from the defendant. The opposite side rebutted that the enforcement of the §2259 must be consistent with §3664 and §3663A as mentioned in §2259(b)(2). Each individual “non-contact” defendant should only be responsible for his/her share of the consequences and compensate for a portion of the victim’s full losses accordingly.

III. Questions
In this Note, the following two questions will be discussed:
1. Should the “proximate” causation stated in §2259(b)(3)(F) be applied exclusively to the subsection (F) or to all subsections under §2259(b)(3)?
2. What, if any, is the appropriate amount of restitution that should be entitled to the victim under §2259?
To answer the two questions above, this Note argues that the classic proximate causation doctrine does not apply to all subsections under the statue §2259; instead, the proximate causation only applies to §2259(b)(3)(F) as the way it is written in the statue. The victim should be entitled restitution listed under §2259(b)(3)(A)-(E) with no burden to present evidence of proximity. The Note also argues that a proximate causation connecting the offense to the losses should be used as a reference to quantify the defendant’s responsibility. Though the full restitution for the victim must be ordered, the defendant should only be accountable for the consequences and impact...

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