In a case closely tied to the concept of proximate cause—that perennial topic of every first-year torts class—the Court considered in Paroline v. United States the extent of restitution damages available to the victims of child pornography.
When she was a young girl, “Amy” (a pseudonym) was sexually abused in order to produce child pornography. Petitioner Doyle Randall Paroline pleaded guilty to possession of between 150 to 300 images of child pornography, including two images of Amy. The Violence Against Women Act of 1994 (codified at 18 U.S.C. § 2259) provides for restitution damages for the victims of child pornography. Amy sought such damages, and the Fifth Circuit sitting en banc ruled that § 2259 did not limit restitution to losses proximately caused by the defendant, and that each defendant who possessed the victim’s images should be made liable for the victim’s entire losses from the trade in her images.
In a 5–4 decision by Justice Kennedy, the Court held that restitution is proper under § 2259 only to the extent the defendant’s offense proximately caused a victim’s losses. To say one event proximately caused another means, first, that the former event caused the latter (known as “actual cause,” “but-for cause,” or “cause in fact”); and second, that it is a proximate cause (i.e., it has a sufficient connection to the result or that the result was reasonably foreseeable). Because § 2259(c) defines a victim as “the individual harmed as a result of a commission of a crime under this chapter,” the Court read the “as a result” language of the statute as incorporating the concept of proximate cause. Applying that standard to Amy’s damages, the Court struggled to determine just how much of Amy’s damages, could be attributed to Paroline’s crimes. In a normal torts case, cause in fact is generally easier to determine than proximate cause: if the harm would not have occurred but for the defendant’s act, then the act is the cause in fact of the injury. But here the Court readily accepted that a victim’s costs of treatment and lost income resulting from the trauma of knowing that images of her abuse are being viewed over and over are the direct and foreseeable results of—i.e., proximately caused by—child-pornography crimes. The question for the majority was whether Paroline’s crimes could also be considered the cause in fact of Amy’s damages.
The Court considered several methods of determining cause in fact in these types of cases. Because it is not possible to prove that any victim’s losses would be less but for one possessor’s individual role in the large, loosely connected network through which her image’s circulate, the Court could not apply simple but-for causation. The Court also rejected the aggregate-causation standard suggested by Amy and the government. Under that standard, where but-for causation is not possible to ascertain, courts may consider the aggregate effects of wrongdoers. But for the majority, such a standard would expose wrongdoers like Paroline to a disproportionate amount of liability, especially in the criminal context. Rather, the Court concluded that where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in her images but where it is impossible to trace a particular amount of those losses to the individual defendant utilizing a more traditional causal inquiry, a court should order restitution in an amount that comports with the defendant’s relative role in the causal process underlying the victim’s general losses. The Court concluded that although this approach is not without difficulties, courts can only do their best to apply the statute as written in a workable manner, faithful to the competing principles at stake: that victims should be compensated and that defendants should be held to account for the impact of their own conduct, not the conduct of others.
Chief Justice Roberts, joined by Justices Alito and Thomas, dissented. For the dissenters, Congress failed to write a coherent restitution statute for the crimes it had targeted. Rather than tailoring the statute to the unique harms caused by child pornography, Congress borrowed a generic restitution standard that makes restitution contingent on the Government’s ability to prove, “by the preponderance of the evidence,” “the amount of the loss sustained by a victim as a result of ” the defendant’s crime. Because that is impossible here, Chief Justice Roberts concludes, albeit reluctantly, that Amy is unable to prove causation—and thus collect damages—under the statute. And because the judiciary’s role is to interpret, rather than rewrite, the statutes of Congress, Chief Justice Roberts declined to adopt the majority’s revisions.
Justice Sotomayor also dissented, but for very different reasons. According to her, the majority’s attempt to circumscribe Paroline’s liability ignores the plain words of the statute, which mandates restitution for the “full amount of the victim’s losses.” She would have instead used the aggregate-causation standard proposed by Amy and the government to hold Paroline liable for all of Amy’s losses.