The Amy, Vicky, and Andy Act: Restitution in Child Pornography Cases

What is the Amy, Vicky, and Andy Act?

The Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (often called the "AVAA") changed how federal courts order restitution in child pornography cases. Restitution is money a defendant must pay to a victim for the harm caused. The biggest change is a floor: in a trafficking case, which under the statute includes possession, the court must order at least $3,000 for each victim (18 U.S.C. § 2259(b)(2)(B) and (c)(3)).

The law was signed on December 7, 2018 (Pub. L. 115-299). It is named after victims whose images were among the most widely shared images identified by the authorities. Congress wanted to secure full restitution for victims and to fix a problem courts had long struggled with: deciding how much one defendant should pay.

The problem it tried to solve

When thousands of people post, share, or view the same images online, it is hard to decide how much of the victim's loss one defendant should cover. Courts could not square making the one defendant in front of them pay for all of the emotional harm the victim suffered from everyone else.

The Supreme Court dealt with this in Paroline v. United States, 572 U.S. 434 (2014). Paroline possessed images of a victim. The Court held that he should pay restitution in proportion to his role in her losses, not her full losses.

The restitution law at the time, 18 U.S.C. § 2259, called for full restitution. But because many others had also viewed the images, the Court reasoned that one defendant could not be held responsible for the full amount alone.

The Court said "every viewing of child pornography is a repetition of the victim's abuse." Even so, its ruling gave victims no practical way to collect full restitution for that ongoing abuse.

Victims' rights groups protested the ruling in large numbers. That outrage led to years of political debate about setting mandatory minimum restitution amounts for people convicted of child pornography offenses. There is little sympathy for these defendants in the criminal justice community, and the idea that they could avoid paying even a small amount because of a legal puzzle was unsettling, to say the least.

Others pointed out that ordinary civil liability is based on the amount of harm. Say $1 million (or whatever the number is) would make the victim whole. Then the victim should get $1 million in total, not $1 million from every defendant. There were other arguments too, such as whether earlier defendants should pay more than later ones. The debate was about how to divide restitution among many defendants, not whether victims should get it at all.

What the AVAA does

Here are the main changes, now in 18 U.S.C. § 2259:

• Minimum restitution. For trafficking in child pornography, the court figures out the victim's full losses. Then it orders restitution for the defendant's share, but no less than $3,000.
• A victim fund. A victim can choose to take a one-time payment, called "defined monetary assistance," from the Child Pornography Victims Reserve. It started at $35,000 and is adjusted for inflation.
• A cap on attorney fees. Lawyers may not take more than 15 percent of a payment from the fund. This helps make sure the money goes to victims.

The original 2018 article also said Congress would put an additional $10 million into the fund to keep enough money in reserve for victims.

The law also added extra special assessments that go toward the fund. Under 18 U.S.C. § 2259A, a court may impose up to $17,000 for possession, up to $35,000 for other trafficking offenses, and up to $50,000 for production. These amounts are adjusted for inflation.

Victim choice and access to the images

The AVAA also gave victims "reasonable access" to the images of themselves held as evidence in a criminal case. The images may not be copied. This is in 18 U.S.C. § 3509(m)(3).

Victims' rights advocates were most encouraged that the law lets victims choose which restitution option they want. That puts a small amount of power back in the victim's hands.

Access to the images may seem unsettling. But it is crucial for identifying victims, tracking down offenders, gathering evidence, and helping victims get treatment.

What this means if you are facing charges

If you are charged with a federal child pornography offense, expect restitution to be part of your sentence. The minimum is $3,000 per victim for trafficking offenses, and special assessments under § 2259A can add more. When there are many identified victims, the total can add up quickly. Restitution is separate from any prison time under the sentencing guidelines.

One practical tip: ask your lawyer to review each restitution request and the loss documentation behind it before sentencing. Above the $3,000 floor, the amount still depends on the defendant's share of the victim's losses, so the numbers are worth checking.

The law passed with broad support from both parties because it focuses on giving power back to victims. Notably, criminal justice reform advocates and victims' rights advocates both backed it.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.