Text: S.2152 — 115th Congress (2017-2018)All Information (Except Text)

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Public Law No: 115-299 (12/07/2018)

 
[115th Congress Public Law 299]
[From the U.S. Government Publishing Office]



[[Page 132 STAT. 4383]]

Public Law 115-299
115th Congress

                                 An Act


 
  To amend title 18, United States Code, to provide for assistance for 
 victims of child pornography, and for other purposes. <<NOTE: Dec. 7, 
                          2018 -  [S. 2152]>> 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, <<NOTE: Amy, Vicky, and 
Andy Child Pornography Victim Assistance Act of 2018. 18 USC 1 note.>> 
SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Amy, Vicky, and Andy Child 
Pornography Victim Assistance Act of 2018''.
SEC. 2. <<NOTE: 18 USC 2259 note.>>  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.

[[Page 132 STAT. 4384]]

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 <<NOTE: Courts.>>  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

[[Page 132 STAT. 4385]]

        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) <<NOTE: Courts.>>  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.

[[Page 132 STAT. 4386]]

                    ``(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 Consumers (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. <<NOTE: 18 USC 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);

[[Page 132 STAT. 4387]]

            ``(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) <<NOTE: Courts.>>  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) <<NOTE: Applicability.>>  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) of 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. <<NOTE: 18 USC 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

[[Page 132 STAT. 4388]]

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) <<NOTE: Guidelines. Regulations.>>  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, <<NOTE: 18 USC 2251 prec.>>  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

[[Page 132 STAT. 4389]]

                    (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.

    Approved December 7, 2018.

LEGISLATIVE HISTORY--S. 2152:
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CONGRESSIONAL RECORD, Vol. 164 (2018):
            Jan. 23, considered and passed Senate.
            Sept. 28, considered and passed House, amended.
            Nov. 15, Senate concurred in House amendment.

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