Implementing the Child Pornography Victims Reserve

<RULE> DEPARTMENT OF JUSTICE <CFR>28 CFR Part 81</CFR> <DEPDOC>[Docket No. CRM 120; AG Order No. 6090-2024]</DEPDOC> <RIN>RIN 1105-AB57</RIN> <SUBJECT>Implementing the Child Pornography Victims Reserve</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Justice. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This final rule finalizes with changes the Notice of Proposed Rulemaking (“NPRM”) published by Department of Justice (“Department” or “DOJ”) to implement the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, which established the Child Pornography Victims Reserve to provide defined monetary assistance to eligible individuals who are depicted in child pornography that is the basis for certain convictions. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective November 25, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Catherine Pierce, Senior Advisor, Office for Victims of Crime, 810 7th Street NW, Rm. 2246, Washington, DC 20531, telephone (202) 307-6785 (not a toll-free number). </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Executive Summary</HD> Congress established the Child Pornography Victims Reserve (“Reserve”) to provide defined monetary assistance to eligible individuals who are depicted in child pornography that is the basis for certain convictions under chapter 110 of title 18. The Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (“the AVAA” or “the Act”), Public Law 115-299, secs. 4-5, 132 Stat 4383, 4385-88, codified at 18 U.S.C. 2259, 2259A, and 2259B, and 34 U.S.C. 20101(d). Under 18 U.S.C. 2259(d), a United States district court may order payment from the Reserve to a victim of a defendant convicted in Federal court of trafficking in child pornography depicting that victim. The Department, pursuant to this final rule, will make a payment from the Reserve to such child pornography victims based on orders obtained in United States district courts. <SU>1</SU> <FTREF/> <FTNT> <SU>1</SU>  This rule uses the term “child pornography,” instead of the currently preferred term “child sexual abuse material,” to match the language used in the Act. To avoid using the term “child pornography” in resource and application materials directed to potential claimants, however, the Department will describe the Child Pornography Victims Reserve established by the Act as the “Defined Monetary Assistance Victims Reserve” in such resource and application materials. </FTNT> The Department published an NPRM on June 5, 2023, Implementing the Child Pornography Victims Reserve, 88 FR 36516, proposing to implement the AVAA, and received public comments. The Department is now issuing this final rule pursuant to 18 U.S.C. 2259B(c), which provides that the Attorney General shall issue regulations to implement the payment of defined monetary assistance out of the Reserve. This final rule outlines procedures for persons to request to apply through the Department for a court order determining eligibility and directing payment of defined monetary assistance. It is not intended to limit how a claimant might seek an order for defined monetary assistance directly from a court. As set forth in more detail below, if a claimant chooses to proceed through the Department, the Department may present the claimant's application for a court order. (“Claimant” means the person who claims to be a victim of trafficking in child pornography and to be eligible for the defined monetary assistance under 18 U.S.C. 2259(d), and “victim” or “victim of trafficking in child pornography” means a person whom a Federal court has determined, under 18 U.S.C. 2259(d)(1)(B), to be a victim of trafficking in child pornography.) The Department will provide payment from the Reserve to the victim (or an authorized representative, if applicable) pursuant to a court order issued under 18 U.S.C. 2259(d)(1)(C), upon receipt of the order and the requisite information from the claimant following instructions on the Department's website for this program: <E T="03">https://www.justice.gov/DMAVR.</E> The final rule also sets forth procedures by which persons may submit requests to the Department, including through their attorney, a legal guardian (in the case of claimants under the age of 18 or who are incompetent, incapacitated, or deceased), or a representative authorized by the claimant, which includes a personal representative of an estate (for deceased claimants) (collectively, “authorized representative”). The final rule is procedural in nature, implementing a process by which a claimant may request that the Department facilitate the claimant's request that a court make a determination of eligibility pursuant to the eligibility requirements of the Act. It does not create new rights or impose obligations independent of the statute, and it does not create an attorney-client relationship between the claimant and any Department attorney. <HD SOURCE="HD1">II. Background</HD> Under Federal law, victims of child pornography offenses are entitled to full and timely restitution from defendants charged and convicted in Federal court, including restitution for losses caused by conduct such as the possession, receipt, viewing, transportation, and distribution of child pornography. <E T="03">See</E> 18 U.S.C. 2259. Restitution is imposed upon an individual criminal defendant by a Federal court in connection with sentencing, and the obligation to pay restitution is part of the defendant's criminal sentence. <E T="03">See id.; see also</E> 18 U.S.C. 3663A. The Federal Government bears the burden of proving that the defendant owes restitution to a victim, although a defendant can agree to pay restitution as part of a plea agreement. In order for a court to impose a restitution obligation on a child pornography trafficking defendant, the Federal Government, represented by the prosecutor, must prove the following: • <E T="03">Victim status:</E> This element means that the person seeking restitution is a victim, <E T="03">i.e.,</E> that the person has been harmed as a result of the commission of a Federal child pornography trafficking crime. • <E T="03">Losses:</E> This element refers to the amount of losses incurred by the victim, both since the offense took place and that are reasonably projected to be incurred in the future. There is no statutory limit on how much restitution may be ordered to be paid to a victim, but there must be a sufficient evidentiary basis to prove that all of the losses have been or are reasonably projected to be incurred. The statute permits recovery for the following types of losses: medical services relating to physical, psychiatric, or psychological care; physical and occupational therapy or rehabilitation; necessary transportation, temporary housing, and child care expenses; lost income; reasonable attorneys' fees, as well as other costs incurred; and any other relevant losses incurred by the victim. 18 U.S.C. 2259(c)(2). Restitution losses are limited to actual monetary losses and should not be confused with amounts of money a victim might be awarded for pain and suffering or punitive damages in a civil tort lawsuit. • <E T="03">Causation:</E> As discussed in more detail below, this element requires proof that the losses were caused in the aggregate by the trade in child pornography depicting the victim. • <E T="03">Amount:</E> In cases where multiple defendants contributed to the victim's losses, the court must determine how much each individual defendant should pay to the victim. In all Federal cases, restitution is obtained on a case-by-case basis. Because child pornography can be possessed and shared by many different unrelated criminal defendants and distributed repeatedly, a single child pornography trafficking victim may receive restitution orders in hundreds of individual criminal cases being brought in different Federal courts all over the country. Under current law, each of these defendants is ordered to pay some portion of the victim's overall losses. Once the victim has collected payment for the full amount of the victim's losses from one or more defendants, no further restitution orders can be imposed on additional defendants on the victim's behalf unless new losses are incurred. <E T="03">See</E> 18 U.S.C. 2259(b)(2)(C). In 2009, a victim sought restitution for the first time, not from the individual who sexually abused her and produced and shared the images, but from individuals who subsequently traded and collected those images. A small number of other child pornography victims subsequently sought similar restitution. Federal prosecutors across the country were soon seeking restitution for victims in Federal courts in child pornography possession, receipt, and distribution cases. Despite the Department's overall success in obtaining orders of restitution for these victims, courts were inconsistent in their approach to restitution claims. Some courts struggled to determine whether an individual defendant convicted of possession, receipt, or distribution proximately caused a victim's losses. If a defendant was only one of thousands who harmed the victim, then some courts indicated that the defendant could not be said to have caused the victim's losses because those losses would be essentially the same if that particular defendant had never committed the crime. On that logic, some courts simply denied the restitution requests. Others demanded a showing as to how much an individual defendant's crime incrementally increased the victim's losses, imposing a generally insurmountable evidentiary burden. Among courts that awarded restitution, many grappled with how to determine the amount that the defendant should pay to the victim. These issues ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 82k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━