Sixth Circuit Rules On Case About Calculating Child Pornography Restitution

At the end of last month, the Sixth Circuit Court of Appeals ruled on two unrelated child pornography cases, U.S. v. Gamble and U.S. v. Crawford. In both cases the lower courts ordered the defendants to pay $1,000,000 in restitution to “Vicky,” the pseudonym of one of the individuals depicted in the images they possessed. The issue here was whether the defendants were personally responsible for causing that much in damages to Vicky.

Previously the Sixth Circuit dealt with the issue of restitution in child pornography cases and said that the government was required to demonstrate that losses to a victim had been proximately caused by the actions of the defendant.

The district courts said that this rule is different in extreme cases where defendants viewed images because of the humiliation suffered by the victim, knowing that her mistreatment was being viewed by others. The district courts said that in such cases each defendant is jointly and severally liable for the entire amount of restitution owed to the victim. The district courts based this on 18 U.S.C. Section 2259 which says that restitution is required in child exploitation cases for “the full amount of the victim’s losses.”


The Sixth Circuit disagreed with this assessment and instead decided that the harm should be divided among the perpetrators. One solution that the Sixth Circuit came up with was to determine a victim’s total losses and then divided those losses by the number of defendants convicted of possessing the victim’s image. The Court noted that in such cases it’s possible that defendants could argue about the existence of a larger pool of responsible parties. If that happens, the Sixth Circuit said that different divisors may be reasonable. This means that defendants might estimate the number of un-convicted possessors of the victim’s image, thus lowering their individual restitution amount. The Sixth Circuit said that rather than Gamble and Crawford each being responsible for paying the victim $1,000,000, if it was found that 1,000 people possessed Vicky’s image then each would be responsible for paying $1,000 in restitution.

The Sixth Circuit ultimately remanded the cases because the district courts did not require any showing of a link between the losses suffered by the victim and the defendants’ offenses. The Sixth Circuit ordered that the district courts reconsider their decisions and decide damages based on how much responsibility for Vicky’s injuries they share with hundreds of other child pornography viewers.

To read the full opinion, click here.

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