[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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