18 U.S.C. § 2259 — Mandatory restitution

Page 546 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2258D from NCMEC under subsection (d)’’ for ‘‘image of an identified child from the National Center for Missing and Exploited Children under section (d)’’ and ‘‘child sexual exploitation crimes, and prevent future sexual victimization of children’’ for ‘‘child pornography crimes’’. § 2258D. Limited liability for NCMEC (a) IN GENERAL.—Pursuant to its clearing- house role as a private, nonprofit organization and its mission to help find missing children, re- duce online sexual exploitation of children and prevent future victimization, and except as pro- vided in subsections (b) and (c), a civil claim or criminal charge against NCMEC, including any director, officer, employee, or agent of NCMEC, arising from the performance of the CyberTipline responsibilities or functions of NCMEC, as described in this section, section 2258A or 2258C of this title, or section 404 of the Missing Children’s Assistance Act (34 U.S.C. 11293), or from the efforts of NCMEC to identify child victims may not be brought in any Federal or State court. (b) INTENTIONAL, RECKLESS, OR OTHER MIS- CONDUCT.—Subsection (a) shall not apply to a claim or charge if NCMEC, or a director, officer, employee, or agent of NCMEC— (1) engaged in intentional misconduct; or (2) acted, or failed to act— (A) with actual malice; (B) with reckless disregard to a substan- tial risk of causing injury without legal jus- tification; or (C) for a purpose unrelated to the perform- ance of any responsibility or function under this section, section 2258A or 2258C of this title, or section 404 of the Missing Children’s Assistance Act (34 U.S.C. 11293). (c) ORDINARY BUSINESS ACTIVITIES.—Sub- section (a) shall not apply to an act or omission relating to an ordinary business activity, in- cluding general administration or operations, the use of motor vehicles, or personnel manage- ment. (d) MINIMIZING ACCESS.—NCMEC shall— (1) minimize the number of employees that are provided access to any visual depiction provided under section 2258A; and (2) ensure that any such visual depiction is permanently destroyed upon notification from a law enforcement agency. (Added Pub. L. 110–401, title V, § 501(a), Oct. 13, 2008, 122 Stat. 4250; amended Pub. L. 115–395, § 5, Dec. 21, 2018, 132 Stat. 5294.) Editorial Notes AMENDMENTS 2018—Pub. L. 115–395, § 5(1), substituted ‘‘NCMEC’’ for ‘‘the National Center for Missing and Exploited Chil- dren’’ in section catchline. Subsec. (a). Pub. L. 115–395, § 5(2), substituted ‘‘Pursu- ant to its clearinghouse role as a private, nonprofit or- ganization and its mission to help find missing chil- dren, reduce online sexual exploitation of children and prevent future victimization, and except as provided’’ for ‘‘Except as provided’’, ‘‘against NCMEC’’ for ‘‘against the National Center for Missing and Exploited Children’’, ‘‘(34 U.S.C. 11293)’’ for ‘‘(42 U.S.C. 5773)’’, ‘‘of NCMEC’’ for ‘‘of such center’’ wherever appearing, and ‘‘from the efforts’’ for ‘‘from the effort’’. Subsec. (b). Pub. L. 115–395, § 5(3), substituted ‘‘if NCMEC’’ for ‘‘if the National Center for Missing and Exploited Children’’, ‘‘of NCMEC’’ for ‘‘of such center’’, and ‘‘(34 U.S.C. 11293)’’ for ‘‘(42 U.S.C. 5773)’’. Subsec. (d). Pub. L. 115–395, § 5(4), substituted ‘‘NCMEC’’ for ‘‘The National Center for Missing and Exploited Children’’ in introductory provisions and ‘‘visual depiction’’ for ‘‘image’’ in pars. (1) and (2). § 2258E. Definitions In sections 2258A through 2258E— (1) the terms ‘‘attorney for the government’’ and ‘‘State’’ have the meanings given those terms in rule 1 of the Federal Rules of Crimi- nal Procedure; (2) the term ‘‘electronic communication service’’ has the meaning given that term in section 2510; (3) the term ‘‘electronic mail address’’ has the meaning given that term in section 3 of the CAN–SPAM Act of 2003 (15 U.S.C. 7702); (4) the term ‘‘Internet’’ has the meaning given that term in section 1101 of the Internet Tax Freedom Act (47 U.S.C. 151 note); (5) the term ‘‘remote computing service’’ has the meaning given that term in section 2711; (6) the term ‘‘provider’’ means an electronic communication service provider or remote computing service; (7) the term ‘‘NCMEC’’ means the National Center for Missing & Exploited Children; and (8) the term ‘‘website’’ means any collection of material placed in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol. (Added Pub. L. 110–401, title V, § 501(a), Oct. 13, 2008, 122 Stat. 4250; amended Pub. L. 115–395, § 6, Dec. 21, 2018, 132 Stat. 5294.) Editorial Notes REFERENCES IN TEXT The Federal Rules of Criminal Procedure, referred to in par. (1), are set out in the Appendix to this title. Section 1101 of the Internet Tax Freedom Act, re- ferred to in par. (4), is section 1101 of title XI of div. C of Pub. L. 105–277, which is set out in a note under sec- tion 151 of Title 47, Telecommunications. AMENDMENTS 2018—Pub. L. 115–395, § 6(1), substituted ‘‘2258E’’ for ‘‘2258D’’ in introductory provisions. Pars. (6) to (8). Pub. L. 115–395, § 6(2)–(4), added pars. (6) and (7) and redesignated former par. (6) as (8). § 2259. Mandatory restitution (a) IN GENERAL.—Notwithstanding section 3663 or 3663A, and in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under this chapter. (b) SCOPE AND NATURE OF ORDER.— (1) DIRECTIONS.—Except as provided in para- graph (2), the order of restitution under this section shall direct the defendant to pay the victim (through the appropriate court mecha- nism) the full amount of the victim’s losses. (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 Page 547 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2259 amount to be determined by the court as fol- lows: (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 termi- nated. 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. (3) ENFORCEMENT.—An order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A. (4) ORDER MANDATORY.—(A) The issuance of a restitution order under this section is manda- tory. (B) A court may not decline to issue an order under this section because of— (i) the economic circumstances of the de- fendant; or (ii) the fact that a victim has, or is enti- tled to, receive compensation for his or her injuries from the proceeds of insurance or any other source. (c) DEFINITIONS.— (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 pornog- raphy (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 pro- jected to be incurred in the future, by the vic- tim, as a proximate result of the offenses in- volving the victim, and in the case of traf- ficking in child pornography offenses, as a proximate result of all trafficking in child por- nography 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 exclu- sively involves violations of section 2251(d), 2252, 2252A(a)(1) through (5), or 2260(b)), or 2260(b). (4) VICTIM.—For purposes of this section, the term ‘‘victim’’ means the individual harmed as a result of a commission of a crime under this chapter. In the case of a victim who is under 18 years of age, incompetent, incapaci- tated, or deceased, the legal guardian of the victim or representative of the victim’s estate, another family member, or any other person appointed as suitable by the court, may as- sume the crime victim’s rights under this sec- tion, but in no event shall the defendant be named as such representative or guardian. (d) DEFINED MONETARY ASSISTANCE.— (1) DEFINED MONETARY ASSISTANCE MADE AVAILABLE AT VICTIM’S ELECTION.— (A) ELECTION TO RECEIVE DEFINED MONE- TARY 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 assist- ance 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 con- victed 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 mone- tary assistance, the court shall order pay- ment 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 ASSIST- ANCE.—The amount of defined monetary as- sistance 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 Page 548 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2259 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 AS- SISTANCE.— (A) IN GENERAL.—A victim may only ob- tain defined monetary assistance under this subsection once. (B) EFFECT ON RECOVERY OF OTHER RESTITU- TION.—A victim who obtains defined mone- tary assistance under this subsection shall not be barred or limited from receiving res- titution against any defendant for any of- fenses not covered by this section. (C) DEDUCTION.—If a victim who received defined monetary assistance under this sub- section subsequently seeks restitution under this section, the court shall deduct the amount the victim received in defined mone- tary assistance when determining the full amount of the victim’s losses. (3) LIMITATIONS ON ELIGIBILITY.—A victim who has collected payment of restitution pur- suant 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 assist- ance 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. (Added Pub. L. 103–322, title IV, § 40113(b)(1), Sept. 13, 1994, 108 Stat. 1907; amended Pub. L. 104–132, title II, § 205(c), Apr. 24, 1996, 110 Stat. 1231; Pub. L. 115–299, §§ 3(a), (b), 4, Dec. 7, 2018, 132 Stat. 4384, 4385.) Editorial Notes REFERENCES IN TEXT The date of enactment of this subsection, referred to in subsec. (d)(1)(D)(i), is the date of enactment of Pub. L. 115–299, which was approved Dec. 7, 2018. AMENDMENTS 2018—Subsec. (b)(1). Pub. L. 115–299, § 3(a)(1), sub- stituted ‘‘Except as provided in paragraph (2), the order’’ for ‘‘The order’’ and struck out ‘‘as determined by the court pursuant to paragraph (2)’’ after ‘‘of the victim’s losses’’. Subsec. (b)(2). Pub. L. 115–299, § 3(a)(4), added par. (2). Former par. (2) redesignated (3). Subsec. (b)(3). Pub. L. 115–299, § 3(a)(2), (3), redesig- nated par. (2) as (3) and struck out former par. (3) which defined ‘‘full amount of the victim’s losses’’. Subsec. (c). Pub. L. 115–299, § 3(b)(1), (2), (5), sub- stituted ‘‘Definitions’’ for ‘‘Definition’’ in subsec. head- ing, designated existing provisions as par. (4) and in- serted par. heading, and added pars. (1) to (3). Subsec. (c)(4). Pub. L. 115–299, § 3(b)(3), (4), substituted ‘‘under this chapter. In the case’’ for ‘‘under this chap- ter, including, in the case’’, and inserted ‘‘may assume the crime victim’s rights under this section,’’ after ‘‘or any other person appointed as suitable by the court,’’. Subsec. (d). Pub. L. 115–299, § 4, added subsec. (d). 1996—Subsec. (a). Pub. L. 104–132, § 205(c)(1), inserted ‘‘or 3663A’’ after ‘‘3663’’. Subsec. (b)(1). Pub. L. 104–132, § 205(c)(2)(A), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: ‘‘The order of restitution under this section shall direct that— ‘‘(A) the defendant pay to the victim (through the appropriate court mechanism) the full amount of the victim’s losses as determined by the court, pursuant to paragraph (3); and ‘‘(B) the United States Attorney enforce the res- titution order by all available and reasonable means.’’ Subsec. (b)(2). Pub. L. 104–132, § 205(c)(2)(B), struck out ‘‘by victim’’ after ‘‘Enforcement’’ in heading and amended text generally. Prior to amendment, text read as follows: ‘‘An order of restitution may also be en- forced by a victim named in the order to receive the restitution in the same manner as a judgment in a civil action.’’ Subsec. (b)(4)(C), (D). Pub. L. 104–132, § 205(c)(2)(C), struck out subpars. (C) and (D), which related to court’s consideration of economic circumstances of de- fendant in determining schedule of payment of restitu- tion orders, and court’s entry of nominal restitution awards where economic circumstances of defendant do not allow for payment of restitution, respectively. Subsec. (b)(5) to (10). Pub. L. 104–132, § 205(c)(2)(D), struck out pars. (5) to (10), which related, respectively, to more than 1 offender, more than 1 victim, payment schedule, setoff, effect on other sources of compensa- tion, and condition of probation or supervised release. Subsec. (c). Pub. L. 104–132, § 205(c)(3), (4), redesig- nated subsec. (f) as (c) and struck out former subsec. (c) relating to proof of claim. Subsecs. (d), (e). Pub. L. 104–132, § 205(c)(3), struck out subsecs. (d) and (e) which read as follows: ‘‘(d) MODIFICATION OF ORDER.—A victim or the of- fender may petition the court at any time to modify a restitution order as appropriate in view of a change in the economic circumstances of the offender. ‘‘(e) REFERENCE TO MAGISTRATE OR SPECIAL MAS- TER.—The court may refer any issue arising in connec- tion with a proposed order of restitution to a mag- istrate or special master for proposed findings of fact and recommendations as to disposition, subject to a de novo determination of the issue by the court.’’ Subsec. (f). Pub. L. 104–132, § 205(c)(4), redesignated subsec. (f) as (c). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104–132 effective, to extent constitutionally permissible, for sentencing pro- ceedings in cases in which defendant is convicted on or after Apr. 24, 1996, see section 211 of Pub. L. 104–132, set out as a note under section 2248 of this title. FINDINGS Pub. L. 115–299, § 2, Dec. 7, 2018, 132 Stat. 4383, provided that: ‘‘Congress finds the following: ‘‘(1) The demand for child pornography harms chil- dren because it drives production, which involves se- vere 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 Su- preme 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 Page 549 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 2260 pornography, ‘the sexual abuse of the child, the me- morialization of that abuse which becomes child por- nography, and its subsequent distribution and view- ing 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 num- ber 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 pornog- raphy is outlawed. ‘‘(6) The unlawful collective conduct of every indi- vidual 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 re- sulting 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.’’ § 2259A. Assessments in child pornography cases (a) IN GENERAL.—In addition to any other criminal penalty, restitution, or special assess- ment authorized by law, the court shall assess— (1) not more than $17,000 on any person con- victed of an offense under section 2252(a)(4) or 2252A(a)(5); (2) not more than $35,000 on any person con- victed of any other offense for trafficking in child pornography; and (3) not more than $50,000 on any person con- victed of a child pornography production of- fense. (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 sub- chapter C of chapter 227 (other than section 3571) and subchapter B of chapter 229 (relating to fines) apply to assessments under this sec- tion, 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 re- ceived 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 por- nography 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. (Added Pub. L. 115–299, § 5(a), Dec. 7, 2018, 132 Stat. 4386.) § 2259B. Child pornography victims reserve (a) DEPOSITS INTO THE RESERVE.—Notwith- standing any other provision of law, there shall be deposited into the Child Pornography Vic- tims 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 AS- SISTANCE.—Amounts in the Child Pornography Victims Reserve shall be available for payment of defined monetary assistance pursuant to sec- tion 2259(d). If at any time the Child Pornog- raphy 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 regula- tions to implement this section. (d) SENSE OF CONGRESS.—It is the sense of Con- gress that individuals who violate this chapter prior to the date of the enactment of the Amy, Vicky, and Andy Child Pornography Victim As- sistance 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 of- fenses were committed. (Added Pub. L. 115–299, § 5(c), Dec. 7, 2018, 132 Stat. 4387.) Editorial Notes REFERENCES IN TEXT The date of the enactment of the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, referred to in subsec. (d), is the date of enactment of Pub. L. 115–299, which was approved Dec. 7, 2018. § 2260. Production of sexually explicit depictions of a minor for importation into the United States (a) USE OF MINOR.—A person who, outside the United States, employs, uses, persuades, in- duces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor with the intent that the minor engage in any sexu- ally explicit conduct for the purpose of pro- ducing any visual depiction of such conduct or for the purpose of transmitting a live visual de- piction of such conduct, intending that the vis- ual depiction will be imported or transmitted into the United States or into waters within 12 miles of the coast of the United States, shall be punished as provided in subsection (c). (b) USE OF VISUAL DEPICTION.—A person who, outside the United States, knowingly receives, transports, ships, distributes, sells, or possesses with intent to transport, ship, sell, or distribute any visual depiction of a minor engaging in sex- ually explicit conduct (if the production of the