[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6845 Introduced in House (IH)]
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115th CONGRESS
2d Session
H. R. 6845
To amend title 18, United States Code, to provide for assistance for
victims of child pornography, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 20, 2018
Mr. Gowdy (for himself and Mr. Goodlatte) introduced the following
bill; which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to provide for assistance for
victims of child pornography, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Amy, Vicky, and Andy Child
Pornography Victim Assistance Act of 2018''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The demand for child pornography harms children because
it drives production, which involves severe child sexual abuse
and exploitation.
(2) The harms caused by child pornography begin, but do not
end, with child sex assault because child pornography is a
permanent record of that abuse and trafficking in those images
compounds the harm to the child.
(3) In Paroline v. United States (2014), the Supreme Court
recognized that ``every viewing of child pornography is a
repetition of the victim's abuse''.
(4) The American Professional Society on the Abuse of
Children has stated that for victims of child pornography,
``the sexual abuse of the child, the memorialization of that
abuse which becomes child pornography, and its subsequent
distribution and viewing become psychologically intertwined and
each compound the harm suffered by the child-victim''.
(5) Victims suffer continuing and grievous harm as a result
of knowing that a large, indeterminate number of individuals
have viewed and will in the future view images of their
childhood sexual abuse. Harms of this sort are a major reason
that child pornography is outlawed.
(6) The unlawful collective conduct of every individual who
reproduces, distributes, or possesses the images of a victim's
childhood sexual abuse plays a part in sustaining and
aggravating the harms to that individual victim.
(7) It is the intent of Congress that victims of child
pornography be compensated for the harms resulting from every
perpetrator who contributes to their anguish. Such an aggregate
causation standard reflects the nature of child pornography and
the unique ways that it actually harms victims.
SEC. 3. DETERMINING RESTITUTION.
(a) Determining Restitution.--Section 2259(b) of title 18, United
States Code, is amended--
(1) in paragraph (1)--
(A) by striking ``The order'' and inserting
``Except as provided in paragraph (2), the order''; and
(B) by striking ``as determined by the court
pursuant to paragraph (2)'' after ``of the victim's
losses'';
(2) by striking paragraph (3);
(3) by redesignating paragraph (2) as paragraph (3); and
(4) by inserting after paragraph (1) the following:
``(2) Restitution for trafficking in child pornography.--If
the defendant was convicted of trafficking in child
pornography, the court shall order restitution under this
section in an amount to be determined by the court as follows:
``(A) Determining the full amount of a victim's
losses.--The court shall determine the full amount of
the victim's losses that were incurred or are
reasonably projected to be incurred by the victim as a
result of the trafficking in child pornography
depicting the victim.
``(B) Determining a restitution amount.--After
completing the determination required under
subparagraph (A), the court shall order restitution in
an amount that reflects the defendant's relative role
in the causal process that underlies the victim's
losses, but which is no less than $3,000.
``(C) Termination of payment.--A victim's total
aggregate recovery pursuant to this section shall not
exceed the full amount of the victim's demonstrated
losses. After the victim has received restitution in
the full amount of the victim's losses as measured by
the greatest amount of such losses found in any case
involving that victim that has resulted in a final
restitution order under this section, the liability of
each defendant who is or has been ordered to pay
restitution for such losses to that victim shall be
terminated. The court may require the victim to provide
information concerning the amount of restitution the
victim has been paid in other cases for the same
losses.''.
(b) Additional Definitions.--Section 2259(c) of title 18, United
States Code, is amended--
(1) in the heading, by striking ``Definition'' and
inserting ``Definitions'';
(2) by striking ``For purposes'' and inserting the
following:
``(4) Victim.--For purposes'';
(3) by striking ``under this chapter, including, in the
case'' and inserting ``under this chapter. In the case'';
(4) by inserting after ``or any other person appointed as
suitable by the court,'' the following: ``may assume the crime
victim's rights under this section,''; and
(5) by inserting before paragraph (4), as so designated,
the following:
``(1) Child pornography production.--For purposes of this
section and section 2259A, the term `child pornography
production' means conduct proscribed by subsections (a) through
(c) of section 2251, section 2251A, section 2252A(g) (in cases
in which the series of felony violations involves at least 1 of
the violations listed in this subsection), section 2260(a), or
any offense under chapter 109A or chapter 117 that involved the
production of child pornography (as such term is defined in
section 2256).
``(2) Full amount of the victim's losses.--For purposes of
this subsection, the term `full amount of the victim's losses'
includes any costs incurred, or that are reasonably projected
to be incurred in the future, by the victim, as a proximate
result of the offenses involving the victim, and in the case of
trafficking in child pornography offenses, as a proximate
result of all trafficking in child pornography offenses
involving the same victim, including--
``(A) medical services relating to physical,
psychiatric, or psychological care;
``(B) physical and occupational therapy or
rehabilitation;
``(C) necessary transportation, temporary housing,
and child care expenses;
``(D) lost income;
``(E) reasonable attorneys' fees, as well as other
costs incurred; and
``(F) any other relevant losses incurred by the
victim.
``(3) Trafficking in child pornography.--For purposes of
this section and section 2259A, the term `trafficking in child
pornography' means conduct proscribed by section 2251(d), 2252,
2252A(a) (1) through (5), 2252A(g) (in cases in which the
series of felony violations exclusively involves violations of
section 2251(d), 2252, 2252A(a) (1) through (5), or 2260(b)),
or 2260(b).''.
(c) Clerical Amendment.--Section 1593(b)(3) of title 18, United
States Code, is amended by striking ``section 2259(b)(3)'' and
inserting ``section 2259(c)(2)''.
SEC. 4. DEFINED MONETARY ASSISTANCE.
Section 2259 of title 18, United States Code, is amended by adding
at the end the following:
``(d) Defined Monetary Assistance.--
``(1) Defined monetary assistance made available at
victim's election.--
``(A) Election to receive defined monetary
assistance.--Subject to paragraphs (2) and (3), when a
defendant is convicted of trafficking in child
pornography, any victim of that trafficking in child
pornography may choose to receive defined monetary
assistance from the Child Pornography Victims' Reserve
established under section 1402(d)(6) of the Victims of
Crime Act of 1984 (34 U.S.C. 20101(d)).
``(B) Finding.--To be eligible for defined monetary
assistance under this subsection, a court shall
determine whether the claimant is a victim of the
defendant who was convicted of trafficking in child
pornography.
``(C) Order.--If a court determines that a claimant
is a victim of trafficking in child pornography under
subparagraph (B) and the claimant chooses to receive
defined monetary assistance, the court shall order
payment in accordance with subparagraph (D) to the
victim from the Child Pornography Victims' Reserve
established under section 1402(d)(6) of the Victims of
Crime Act of 1984.
``(D) Amount of defined monetary assistance.--The
amount of defined monetary assistance payable under
this subparagraph shall be equal to--
``(i) for the first calendar year after the
date of enactment of this subsection, $35,000;
and
``(ii) for each calendar year after the
year described in clause (i), $35,000
multiplied by the ratio (not less than one)
of--
``(I) the Consumer Price Index for
all Urban Consumer (CPI-U, as published
by the Bureau of Labor Statistics of
the Department of Labor) for the
calendar year preceding such calendar
year; to
``(II) the CPI-U for the calendar
year 2 years before the calendar year
described in clause (i).
``(2) Limitations on defined monetary assistance.--
``(A) In general.--A victim may only obtain defined
monetary assistance under this subsection once.
``(B) Effect on recovery of other restitution.--A
victim who obtains defined monetary assistance under
this subsection shall not be barred or limited from
receiving restitution against any defendant for any
offenses not covered by this section.
``(C) Deduction.--If a victim who received defined
monetary assistance under this subsection subsequently
seeks restitution under this section, the court shall
deduct the amount the victim received in defined
monetary assistance when determining the full amount of
the victim's losses.
``(3) Limitations on eligibility.--A victim who has
collected payment of restitution pursuant to this section in an
amount greater than the amount provided for under paragraph
(1)(D) shall be ineligible to receive defined monetary
assistance under this subsection.
``(4) Attorney fees.--
``(A) In general.--An attorney representing a
victim seeking defined monetary assistance under this
subsection may not charge, receive, or collect, and the
court may not approve, any payment of fees and costs
that in the aggregate exceeds 15 percent of any payment
made under this subsection.
``(B) Penalty.--An attorney who violates
subparagraph (A) shall be fined under this title,
imprisoned not more than 1 year, or both.''.
SEC. 5. ASSESSMENTS IN CHILD PORNOGRAPHY CASES.
(a) Assessments in Child Pornography Cases.--Chapter 110 of title
18, United States Code, is amended by inserting after section 2259 the
following:
``Sec. 2259A. Assessments in child pornography cases
``(a) In General.--In addition to any other criminal penalty,
restitution, or special assessment authorized by law, the court shall
assess--
``(1) not more than $17,000 on any person convicted of an
offense under section 2252(a)(4) or 2252A(a)(5);
``(2) not more than $35,000 on any person convicted of any
other offense for trafficking in child pornography; and
``(3) not more than $50,000 on any person convicted of a
child pornography production offense.
``(b) Annual Adjustment.--The dollar amounts in subsection (a)
shall be adjusted annually in conformity with the Consumer Price Index.
``(c) Factors Considered.--In determining the amount of the
assessment under subsection (a), the court shall consider the factors
set forth in sections 3553(a) and 3572.
``(d) Imposition and Implementation.--
``(1) In general.--The provisions of subchapter C of
chapter 227 (other than section 3571) and subchapter B of
chapter 229 (relating to fines) apply to assessments under this
section, except that paragraph (2) applies in lieu of any
contrary provisions of law relating to fines or disbursement of
money received from a defendant.
``(2) Effect on other penalties.--Imposition of an
assessment under this section does not relieve a defendant of,
or entitle a defendant to reduce the amount of any other
penalty by the amount of the assessment. Any money received
from a defendant shall be disbursed so that each of the
following obligations is paid in full in the following
sequence:
``(A) A special assessment under section 3013.
``(B) Restitution to victims of any child
pornography production or trafficking offense that the
defendant committed.
``(C) An assessment under this section.
``(D) Other orders under any other section of this
title.
``(E) All other fines, penalties, costs, and other
payments required under the sentence.''.
(b) Child Pornography Victims Reserve.--Section 1402(d) the Victims
of Crime Act of 1984 (34 U.S.C. 20101(d)) is amended by adding at the
end the following:
``(6)(A) The Director may set aside up to $10,000,000 of
the amounts remaining in the Fund in any fiscal year after
distributing the amounts under paragraphs (2), (3), and (4), in
a Child Pornography Victims Reserve, which may be used by the
Attorney General for payments under section 2259(d) of title
18, United States Code.
``(B) Amounts in the reserve may be carried over from
fiscal year to fiscal year, but the total amount of the reserve
shall not exceed $10,000,000. Notwithstanding subsection (c)
and any limitation on Fund obligations in any future Act,
unless the same should expressly refer to this section, any
such amounts carried over shall not be subject to any
limitation on obligations from amounts deposited to or
available in the Fund.''.
(c) Child Pornography Victims Reserve.--Chapter 110 of title 18,
United States Code, is amended by inserting after section 2259A, as
added by subsection (a), the following:
``Sec. 2259B. Child pornography victims reserve
``(a) Deposits Into the Reserve.--Notwithstanding any other
provision of law, there shall be deposited into the Child Pornography
Victims Reserve established under section 1402(d)(6) of the Victims of
Crime Act of 1984 (34 U.S.C. 20101(d)) all assessments collected under
section 2259A and any gifts, bequests, or donations to the Child
Pornography Victims Reserve from private entities or individuals.
``(b) Availability for Defined Monetary Assistance.--Amounts in the
Child Pornography Victims Reserve shall be available for payment of
defined monetary assistance pursuant to section 2259(d). If at any time
the Child Pornography Victims Reserve has insufficient funds to make
all of the payments ordered under section 2259(d), the Child
Pornography Victims Reserve shall make such payments as it can satisfy
in full from available funds. In determining the order in which such
payments shall be made, the Child Pornography Victims Reserve shall
make payments based on the date they were ordered, with the earliest-
ordered payments made first.
``(c) Administration.--The Attorney General shall administer the
Child Pornography Victims Reserve and shall issue guidelines and
regulations to implement this section.
``(d) Sense of Congress.--It is the sense of Congress that
individuals who violate this chapter prior to the date of the enactment
of the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of
2018, but who are sentenced after such date, shall be subject to the
statutory scheme that was in effect at the time the offenses were
committed.''.
(d) Clerical Amendment.--The table of sections for chapter 110 of
title 18, United States Code, is amended by inserting after the item
relating to section 2259 the following:
``2259A. Assessments in child pornography cases.
``2259B. Child pornography victims reserve.''.
SEC. 6. CHILD PORNOGRAPHY VICTIM'S RIGHT TO EVIDENCE.
Section 3509(m) of title 18, United States Code, is amended by
adding at the end the following:
``(3) In any criminal proceeding, a victim, as defined
under section 2259(c)(4), shall have reasonable access to any
property or material that constitutes child pornography, as
defined under section 2256(8), depicting the victim, for
inspection, viewing, and examination at a Government facility
or court, by the victim, his or her attorney, and any
individual the victim may seek to qualify to furnish expert
testimony, but under no circumstances may such child
pornography be copied, photographed, duplicated, or otherwise
reproduced. Such property or material may be redacted to
protect the privacy of third parties.''.
SEC. 7. CLERICAL AMENDMENTS.
(a) Expansion of Civil Remedies for Satisfaction of an Unpaid
Fine.--Section 3613(c) of title 18, United States Code, is amended by
inserting ``an assessment imposed pursuant to section 2259A of this
title,'' after ``pursuant to the provisions of subchapter C of chapter
227 of this title,''.
(b) Clarification of Interstate or Foreign Commerce Provision
Regarding Certain Activities Pertaining to Child Pornography.--Section
2252A (a)(2) of title 18, United States Code, is amended--
(1) in subparagraph (A)--
(A) by striking ``using any means or facility of
interstate or foreign commerce'' and inserting ``has
been''; and
(B) by inserting ``using any means or facility of
interstate or foreign commerce or'' after ``child
pornography''; and
(2) in subparagraph (B)--
(A) by striking ``using any means or facility of
interstate or foreign commerce'' and inserting ``has
been''; and
(B) by inserting ``using any means or facility of
interstate or foreign commerce or'' after ``child
pornography''.
(c) Clarification of the Definition of ``Sexually Explicit
Conduct''.--Section 2256(2) of title 18, United States Code, is
amended--
(1) in subparagraph (A)(v)--
(A) by inserting ``anus,'' before ``genitals''; and
(B) by inserting a comma after ``genitals''; and
(2) in subparagraph (B)(iii)--
(A) by inserting ``anus,'' before ``genitals''; and
(B) by inserting a comma after ``genitals''.
SEC. 8. REPORTS.
Not later than 2 years after the date of enactment of this Act, the
Attorney General shall submit to Congress a report on the progress of
the Department of Justice in implementing the amendments made by
sections 3 through 5, and shall include an assessment of the funding
levels for the Child Pornography Victims Reserve.
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