An Argument for Child Pornography Victim Restitution in the Ninth Circuit: United States v. Kennedy

This Note argues that the Ninth Circuit erred in United States v. Kennedy by vacating restitution damages for the victims to be paid by the possessor of their images, because denying victims such restitution offends traditional understandings of the limits of proximate cause and the legislative intent behind § 2259.44 There are alternative legal tests currently used by other circuits that establish proximate cause in child-pornography-possessor cases that the Ninth Circuit should have applied in Kennedy to ensure that those responsible for harming children would not escape due liability. Part I of this Note explains why the possession of child pornography falls within the scope of § 2259, which requires mandatory restitution awards for victims. Part II explains why the majority of courts have found that proximate cause is necessary before such awards can be ordered. Part III explores the existing circuit split regarding whether proximate cause can be established in cases where a defendant is a mere possessor of child pornography and describes the various tests for establishing such cause. Part IV provides the facts and procedural history of United States v. Kennedy and explains the reasoning behind the court’s decision to overturn the restitution order. Part V argues that the Ninth Circuit erred in its holding in Kennedy because proximate cause was established in the case and that the amount of restitution sought was proper under § 2259