Criminal – Child Porn – Restitution – ‘Vicky’ Series

An Alexandria U.S. District Court orders a man found to have child pornography on his computer that has been traced to a particular juvenile victim whose sexual abuse by her biological father was photographed, filmed and widely distributed on the internet as the “Vicky” series, to pay restitution of $3,525 to the victim.

A plain reading of 18 § U.S.C. 2259 indicates that restitution in this case is mandatory. The court is obligated to enter an award of restitution, provided the girl is properly considered a “victim” of defendant’s offense under the statute.

Receiving and viewing child pornography inflicts an injury upon the child depicted by violating his or her privacy, contributing to a cycle of abuse and perpetuating a market for the sharing of the material.

Evidence submitted by the government affirms the specific and cognizable harm the girl suffers each time a video depicting her abuse is viewed. A clinical psychologist who evaluated the girl attests that she responded to the discovery of the videos with “disassociation” and that her anxiety “ran rampant” with the fear that any man who looked at her must have viewed her downloaded video.” The psychologist chronicled the host of effects that ensued, including night terrors, a marked drop in academic performance at school, alcohol abuse, depression, chronic insomnia and continuing dissociation with even those closest to her. The girl also has testified in her victim impact statement about the effect on her of knowing about the videos.

There is ample evidence that when defendant sought to receive the pornographic images depicting the girl’s abuse, his actions presented a sufficiently proximate tie to her ongoing injuries to justify an award of restitution under § 2259. The girl and those closest to her attest, first-hand, to the ongoing trauma she suffers each time the series of images is traded and viewed. In this court, as in every circuit to consider the causation requirement of § 2259, a rule of reasonableness is applied.

Having found there is a sufficient basis to estimate the amount of the victim’s losses, however, leaves the court with the decision of whether and how the court must apportion liability among those already convicted of similar offenses against the victim, or those yet to be prosecuted. To the best of this court’s knowledge, the victim already has been awarded at least $19,000 in restitution from “end users” of the series, and further awards are likely forthcoming.

The court is aware of the approach taken by other district courts in similar restitution cases, some of which have awarded the full amount, and others which looked to § 3664(h) as a basis for apportioning liability in the court’s discretion. The government essentially takes the posture that the numerous defendants should simply sort it out amongst themselves. However, coordination of any potential future awards to avoid unjustly enriching the victim is unworkable, and there is no mechanism of which the court is aware that is capable of managing such a scenario.

In the end, the court finds that the amount of $3,000, the amount identified as the correct restitution figure in several of the previously decided “Vicky” cases, plus attorney’s fees, is appropriate. The court believes at least 50 defendants will be successfully prosecuted for unlawfully possessing or receiving the Vicky series, given the numbers prosecuted to date. If restitution orders of $3,000 per case result, the victim will be compensated in full.Defendant shall pay restitution of $3,525 to the victim, to include $525 in attorney’s fees.

U.S. v. Hicks (O’Grady, J.) No. 1:09cr150, USDC at Alexandria, Va. VLW 009-3-647, 13 pp.