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Sex Crimes: Child Pornography Restitution Questioned

Being convicted of sex crimes brings a heavy price, particularly in child pornography cases.  Congress says that anyone convicted of child pornography must pay mandatory restitution for the total amount of the victim's losses. While federal courts cannot agree on how the law should enforce restitution payments in child pornography cases, the Sixth Circuit Federal Court of Appeals in Cincinnati, Ohio, which covers all of Michigan, Ohio, Kentucky, and Tennessee, recently remanded two $1 million-plus restitution orders to the district court to determine the extent to which individual defendants must pay restitution where they share responsibility for the victim's injuries. The cases involved men who were ordered to pay full restitution for possessing images of the same victim, although neither man created the images, nor did they have any contact with the person in the images.

The Court concluded that in order for restitution to be granted, the government must show that the victim's losses were proximately caused by the defendant's offense. This means that the victim's losses must be directly attributable to the defendant's conduct, and the losses must be reasonably foreseeable. But where more than one defendant is the cause of the victim's injuries, the court found that placing the burden of full compensation on one defendant would inexcusably hold defendants liable for losses they did not cause or only caused in the weakest sense, and it would shift the burden of obtaining contribution from the government to individuals who are not necessarily in the best position to seek such contribution.

To divide restitution among multiple defendants, the government has proposed a two-step calculation process, which first requires determining the amount of the victim's provable losses that cannot be traced to a single defendant, and then deciding how much of that loss a particular defendant caused. Although the court recognized that the government's proposal is consistent with statute, it stated that the government's proposal is not the only way that restitution can be calculated.

Therefore, if you or a loved one is facing charges for sex crimes, child pornography or any other offense involving restitution, it is important that you contact an experienced Michigan criminal defense attorney today who has experience in conducting restitution hearings, regardless of whether you are in Detroit, Flint, Kalamazoo, Lansing, Grand Rapids, Monroe, or Ann Arbor.

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