Updated 6:24 p.m.
How much restitution is a victim of child pornography entitled to? That's the tough question before U.S. District Judge Gladys Kessler in Washington.
Defendant Michael Monzel pled guilty almost three years ago to distribution of child pornography, but the court is still grappling over how to compensate the victim, who goes by the pseudonym Amy.
Initially, Amy's attorneys asked for restitution of little more than $3 million, but later revised that amount to $1.69 million during oral arguments in November. As of the date of the oral arguments, Amy had received $1.67 million and withdrew requests for attorneys fees and expert witness costs.
The government, which has the burden to prove the amount of restitution, has recommended that the court divide the amount by 150, the number of defendants convicted of possessing her image.
In her November 6 memorandum opinion, Kessler wrote that the government failed to show how the averaging of awards was proportional to amount of damage caused by Monzel.
"There is absolutely no evidence as to what degree Monzel's conduct contributed to the injuries suffered by Amy, and, therefore, it is impossible to fashion a formula that pinpoints his degree of responsibility for Amy's suffering," Kessler wrote. She said that the "averaging approach" suggested by the government treated both the victim and defendant unfairly.
"As to the victim," Kessler continued, "she will be getting lower and lower awards of restitution as time goes on because the amount of money sought will be divided by a larger and larger number of convicted defendants. As to the Defendant, the averaging approach fails, as required by the Court of Appeals, to establish the 'connection between the act or omission of the defendant and the damages which the [victim] has suffered.'"
Kessler rejected the evidence submitted by Amy's attorneys, writing that it did not justify the restitution because it was based on reports from 2008. Since Monzel did not possess the image until 2009, the estimated 2008 losses are insufficient.
"Moreover, there is no question that this Court takes no pleasure in reaching a result that fails to make a victim whole, fails to impose a meaningful financial sanction against the perpetrator of the victim's losses, and does not carry out Congressional intent," Kessler wrote.
Kessler affirmed a previous court ruling which said that Congress had to define how victims are compensated. She cited various options that have been floated, which include the formation of a national compensation fund which includes maximum and minimum damage awards, among others.
"Tempting as it may be for the courts to attempt to fashion such a remedy, only the legislative branch of our government has the authority under our Constitution to do so," Kessler wrote. "While this conclusion is most unpalatable, it is simply crystal clear that the Government – for reasons not of its making – has failed to carry its burden of proving by preponderance of the evidence, 'the amount of Amy's losses Monzel caused.'"
In an interview, one of Amy's attorneys, James Marsh of The Marsh Law Firm, said that he submitted a memorandum dated October 10 asking for the full restitution amount of $3.37 million. As an alternative, Marsh requested a minimum restitution amount of $150,000 in accordance with a law that provides relief to victims of child pornography. Marsh said he was unsure if Kessler failed to receive the memorandum from Assistant U.S. Attorney David Kent. Overall, Marsh said that he was "a little bit perplexed" by Kessler's memorandum order. "The victim is entitled to the full amount of her losses," Marsh said.
Monzel's attorney could not immediately be reached for comment.