MEMORANDUM OPINION AND ORDER
Before the Court is a Request for Restitution by Amy, 1 who is a victim in the “Misty” child pornography series. 2 Dеfendant Doyle Randall Paroline (“Paroline”) unlawfully possessed two pornographic images of Amy he obtained over the Internet. Having considered the parties’ oral arguments and written submissions, and for the reasons explained below, the Government has not met its burden of proving what losses, if any, were proximately caused by Paroline’s possession of Amy’s two pornographic images and thus, the Request for Restitution is DENIED.
BACKGROUND
On January 9, 2009, Paroline pled guilty to one count of possession of material involving the sexual exploitation of children in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). Paroline admitted to knowingly possessing on his computers between 150 and 300 images of minors engaged in sexually explicit conduct (Docket No. 6). The National Center for Missing аnd Exploited Children (“NCMEC”) identified Amy as at least one of the minors depicted in the pornographic images. Amy is depicted in two of the pornographic images Paroline possessed. 3
On June 10, 2009, Paroline was sentenced to 24 months custody in the Bureau of Prisons and 120 months of supervised release. During sentencing, the Court reviewed Amy’s Victim Impact Statement and her Request for Restitution under 18 U.S.C. § 2259. 4 Her Victim Impact Statement detailed not only the harm she has suffered from the abuse by her uncle when she was eight and nine years of age, but the harm she continues to endure ten years later by knowing that pornographic images of her are circulating against her will on the Internet and there is nothing she can do to stop it. In her Request for Restitution, Amy seeks approximately $3,367,854 from Paroline. This amount reflects the total amount of Amy’s losses and includes costs for future psychological care, future lost income, and attorney’s fees. Amy’s Latest Request for Restitution, Docket No. 54-2, at 18. Amy offers no alternate theory of restitution for the portion of her total losses proximately caused by any single defendant’s possession of her images. Amy’s restitution request is being made by the Government on her behalf. Amy’s personal attorney, Mr. James R. Marsh, has also participated in *784 presenting Amy’s restitution request in this ease.
Because the issue of restitution in child pornography possession cases is one of first impression in this Court, the Court severed the restitution issue from the sentencing proceeding and ordered all interested parties to submit briefing on the issue (Docket No. 13). The Court received briefing from the Government, Amy, Paroline, and other interested parties including NCMEC. On August 20, 2009, the Court conducted a hearing pursuant to 18 U.S.C. § 3664(d)(5) to determine restitution. At the hearing, Paroline requested additional time to obtain the data underlying Amy’s restitution request and further brief the restitution issue. In addition, Paroline and his counsel waived the statutory requirement that a final determination concerning restitution be held within 90 days of sentencing (Docket No. 36). Following the August 20 hearing, Paroline filed a motion for certain discovery materials, which the Court granted in part and denied in part (Docket No. 46). 5 The Court received supplemental briefing from Paroline, the Government, and Amy, and held a second restitution hearing on October 28, 2009 where Paroline presented additional evidence and arguments against Amy’s restitution request.
APPLICABLE LAW
The victim in this case seeks restitution under 18 U.S.C. § 2259, 6 which governs *785 restitution for all offenses involving the sexual exploitation and other abuse of children. 18 U.S.C. § 2259(a). Section 2259 clearly mandates that the sentencing court order a defendant convicted of such an offense to pay restitution to the victim of the crime. 18 U.S.C. § 2259(b)(4)(A). The statute provides that restitution is available for “the full amount of the victim’s losses.” 18 U.S.C. § 2259(b)(1). Compensable losses under section 2259 include, among other things, any costs incurred by the victim for “medical services relating to physical, psychiatric, or psychological care,” “physical and occupational therapy or rehabilitation,” and “аttorneys’ fees, as well as other costs incurred.” 18 U.S.C. § 2259(b)(8). Further, section 2259 specifically prohibits the Court from declining to order restitution because of the defendant’s economic circumstances or because the victim receives compensation for his or her injuries from another source. 18 U.S.C. § 2259(b)(4)(B). The Government must prove the amount of the victim’s losses by a “preponderance of the evidence,” and that Court shall resolve any dispute as to the proper amount of restitution by the same standard. 18 U.S.C. § 3664(e).
ANALYSIS
Victim Status Under § 2259
The Court’s first task is to determine whether Amy is a “victim” of Paroline’s offense. Section 2259 defines a “victim” as any “individual harmed as a result of a commission of a crime under [the Sexual Exploitation and Other Abuse of Children Chaptеr of Title 18].” 18 U.S.C. § 2259(c). It is undisputed that Paroline was convicted of a crime under this chapter and that Amy was depicted in two of the pornographic images Paroline possessed. Thus, Amy is a victim for purposes of section 2259 if she was harmed as a result of Paroline’s possession of her images.
Child pornography fosters the exploitation of innocent and vulnerable children all over the world. It causes irreparable harm to some of the weakest members of our society. Child pornography is a permanent photographic record of the victim’s sexual abuse, and the distribution and circulation of the pornographic images forever exacerbates the harm to these child victims.
New York v. Ferber,
The use of children as ... subjects of pornographic materials is very harmful to both the children and the society as a whole. It has been found that sexually exploited children are unable to develop healthy affectionate relationships in later life, have sexual dysfunctions, and have a tendency to become sexuаl abusers as adults.
Pornography poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child’s actions are reduced to a recording, the pornography may haunt him in *786 future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography.
Id.
at 758-60, nn. 9 & 10,
The Fifth Circuit has also addressed the issue of child pornography. In
United States, v. Norris,
the Fifth Circuit held that “children depicted in child pornography may be considered to be the victims of the crime of receiving child pornography.”
Congress has also long recognized the harm inflicted on victims of child pornography. In the legislative history of the Child Pornography Prevention Act of 1996, Congress specifically cited and broadly quoted from the landmark
New York v. Ferber
decision finding that “[t]he use of children as subjects of pornographic materials is harmful to the physiological, emotional and mental health of a child.” S.Rep. No. 104-358, at 14 (1996) (citing
New York v. Ferber,
In addition to the courts’ and Congress’s recognition of the long-term harms associated with child pornography, NCMEC data indicates that incidents of online child pornography are increasing. See NCMEC’s Brief, Docket No. 30. NCMEC was established in 1984 as a private, nonprofit organization to assist families, law enforcement, and other professionals in preventing the abduction, endangerment, *787 and sexual exploitation of children. Id. at 2. NCMEC works with both federal and state governments and lаw enforcement agencies to prevent and combat the growing problem of child sexual exploitation. Id. Using two central programs, the CyberTipline and the Child Victim Identification Program (“CVIP”), NCMEC serves as the central repository for information relating to child pornography cases across the country. Id. at 2-5. In 2000, NCMEC sponsored a study that profiled arrested offenders who possessed child pornography and surveyed participating state and local law enforcement agencies. See Janis Wolak, et al., Child Pornography Possessors Arrested in Internet Related Crimes: Findings from the National Online Juvenile Victimization Study (2005). The study revealed that the dissemination of child pornography may increase the trauma experienced by the victims becаuse the victims know “their pictures are circulating globally on the Internet with no hope of permanent removal.” Id. at 27.
In addition to NCMEC’s study, various other studies document the harm caused to a child by the possession and distribution of child pornography. One study demonstrates that a child’s psychological harm after the actual sexual exploitation continues into adulthood and affects his ability to develop healthy relationships. John E.B. Myers, et al., The APSAC Handbook on Child Maltreatment 55-69 (2d ed. 2002). The child victims develop a number of psychological disorders, including depression, withdrawal, and anger, and experience feelings of guilt, betrayal, powerlessness, worthlessness, and low self-esteem. Id. Another study suggests that the continual online distribution and possession of the child pornоgraphy images re-victimizes these child victims, stripping them of any control over the disclosure of their abuse and exposing them to further shame and humiliation. See Ethell Quayle, et al., Child Pornography and Sexual Exploitation of Children Online 59-60 (2008).
Based on the Supreme Court’s analysis in Ferber, the Fifth Circuit’s reasoning in Norris, and the overwhelming amount of literature and briefing regarding the harm caused to children depicted in child pornography, the Court finds that the Government has met its burden of establishing that Amy was “harmed as a result of’ Paroline’s possession of pornographic images depicting Amy’s sexual abuse. Accordingly, Amy is a victim of Paroline’s offense for purposes of section 2259. The Court now turns to the issue of causation between Paroline’s conduct and his victim’s alleged losses.
Causation Under § 2259
Amy contends that, as a matter of statutory construction, therе is simply no proximate cause requirement for the losses specifically enumerated in the statute. 7 On the other hand, both the Government and Paroline are of the view that section 2259 requires a showing of proximate cause between the victim’s losses and the defendant’s conduct. The Government, however, argues that it has met its burden of proving by a preponderance of the evidence that the total amount of Amy’s losses ($3,367,854) were indeed proximately caused by Paroline’s conduct. Thus, the Court must determine first whether there is a proximate cause requirement in section 2259, and if so, whether the Government has met its burden of proving that *788 the total amount of Amy’s losses were proximately caused by Paroline’s possession of Amy’s two pornographic images. Is There a Proximate Cause Requirement?
Section 2259 provides that restitution is available for “the full amount of the victim’s losses.” 18 U.S.C. § 2259(b)(1). The statute specifies that these losses include, among other things, any costs incurred by the victim for “medical services relating to physical, psychiatric, or psychological care,” “physical and occupational therapy or rehabilitation,” and “attorneys’ fees, as well as other costs incurred.” 18 U.S.C. § 2259(b)(3). The statute provides six categories of losses, but only the last subsection, which provides for “any other losses suffered by the victim” expressly contains a “proximate result” requirement. 18 U.S.C. § 2259(b)(3)(F).
Amy contends that proximate cause is simply not a factor in a restitution determination under section 2259. Specifically, Amy argues that, as a matter of statutory construction, the “proximate result” language in the statute modifies only the “catchall” category of losses, not the other loss categories enumerated in section 2259, and the other categories of loss are mandatory without regard to causation. However, the Supreme Court has held that “[w]hen several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.”
Porto Rico Ry., Light & Power Co. v. Mor.,
Furthermore, construing the statute as Amy suggests could render section 2259 unconstitutional. Paroline argues that a restitution award not tied to those losses proximately caused by his conduct would “clearly be excessive” in violation of the Eighth Amendment.
9
Defendant’s
*789
Opening Brief, Docket No. 26, at 15. “[A]n Act of Cоngress ought not be construed to violate the Constitution if any other possible construction remains available.”
Rust v. Sullivan,
The Government agrees that section 2259 does have a causation requirement. “A victim is only entitled to recover restitution for losses that are proximately caused by thе conduct in question” because “[i]t would be nonsensical for the statute to include differing burdens of proof and different causal requirements for different types of losses.” Government’s Opening Brief, Docket No. 29, at 3 & n. 13. However, the Government argues that it has met its burden of proving that Amy’s total losses were proximately caused by Paroline’s conduct. Paroline disagrees with both Amy and the Government.
Paroline contends that section 2259 requires that the Government prove by a preponderance of the evidence the amount of Amy’s specific losses proximately caused by Paroline’s possession of her two images. Paroline urges the Court to apply general restitution and causation principles in its analysis of seсtion 2259. Defendant’s Opening Brief, Docket No. 26, at 4-5. Indeed, restitution ordered in criminal cases is generally tied to the losses caused by the specific offense of conviction.
See Hughey v. United States,
For example, in
Hughey v. United States,
the Supreme Court held that the Victim and Witness Protection Act of 1982 (“VWPA”) authorized restitution “only for the loss caused by the specific conduct that is the basis of the offense of conviction.”
*790
However, the Fifth Circuit has also held that, although “[a] defendant sentenced under the [MVRA] is only responsible for paying restitution for the conduct underlying the offense for which he was convicted,” “where a fraudulent scheme is an element of the conviction, the court may award restitution for actions pursuant to that scheme.”
United States v. Inman,
Although the Fifth Circuit has yet to construe section 2259, other circuits that have considered restitution awards under section 2259 have interpreted the statute to require a causal connection between the victim’s losses and the offense of conviction.
United States v. Crandon,
Restitution orders entered in possession cases have varied among the various district courts addressing the issue. On July 9, 2009, a district court in the Northern District of Florida entered a restitution order against a possessor criminal defendant in favor of Amy in the amount of $3,263,758.
United States v. Freeman,
No. 3:08-cr-22 (N.D.Fla. filed July 9, 2009). Similarly, a district court in the Southern District of Florida ordered a pоssessor criminal defendant to pay $3,680,153 in restitution to Amy without addressing the proximate causation issue.
United States v. Staples,
No. 09-14017-CR,
After considering all of the arguments, authority before it, and principles of statutory construction, the Court finds that section 2259 requires that a victim’s losses be proximately caused by the defendant’s conduct to be recoverable in restitution. General restitution and causation principles applied by the Supreme Court and the Fifth Circuit support this interpretation of the statute. Moreover, this interpretation is consistent with the various circuit courts that have interpreted section 2259 to require that the victim’s losses be proximately caused by the defendant’s conduct. Thus, an award of restitution under section 2259 is appropriate only for the amount of the victim’s losses proximately caused by the defendant’s conduct.
Were Amy’s Total Losses Proximately Caused By Paroline’s Possession? 10
The Government argues that the proximate cause requirement is satisfied because Amy was obviously “harmed” by Paroline’s conduct. However, the Government is conflating the proximate cause requirеment with the requirement that the victim be harmed as a result of Paroline’s conduct. Certainly, Amy was harmed by Paroline’s possession of Amy’s two pornographic images, but this does little to show how much of her harm, or what amount of her losses, was proximately caused by Paroline’s offense. A victim is not necessarily entitled to restitution for all of her losses simply because the victim was harmed and sustained some lesser loss as a result of a defendant’s specific conduct. The proper inquiry is whether the Government has met its burden of proving by a preponderance of the evidence the amount of Amy’s losses proximately caused by Paroline’s conduct.
Proximate cause is defined as “[a] cause that directly produces an event and without which the event would not have occurred.” Black’s Law Dictionary 234 (8th ed. 2004). Thus, the Government has the burden of proving the amount of Amy’s losses directly produced by Paroline that would not have occurred without his possession of her images. The Court is guided by certain principals in making this determination. “The determination of an appropriate restitution amount is by na
*792
ture an inexact science,”
United States v. Teehee,
The Court has held two hearings regarding the issue of restitution in this case and has reviewed the parties’ initial and supplemental briefs. To substantiate her claim for approximately $3,367,854 in restitution, Amy has submitted: (1) a Victim Impact Statement; (2) a psychological evaluation by Dr. Joyanna Silberg dated November 21, 2008; (3) an economic report by Dr. Stan V. Smith dated September 15, 2008; and (4) numerous excerpts from articles discussing the harms associated with child pornography. The losses described in Amy’s reports are generalized and caused by her initial abuse as well as the general existence and dissemination of her pornographiс images. No effort has been made to show the portion of these losses specifically caused by Paroline’s possession of Amy’s two images. After reviewing the data underlying Amy’s experts’ reports, Paroline submitted a supplemental brief that identifies certain discrepancies between Amy’s Victim Impact Statement and Dr. Silberg’s notes. Paroline’s supplemental briefing also includes a report by Dr. Timothy J. Proctor enumerating his concerns as to the reliability of Dr. Silberg’s report and an economic report prepared by Dr. Kent Gilbreath that sets forth estimates of Amy’s future potential earning capacity to illustrate the discrepancy between his sums and those of Dr. Smith. 11
It is clear from the evidence before the Court that а large portion of Amy’s total losses were caused by her original abuse by her uncle. It is equally clear that significant losses are attributed to the widespread dissemination and availability of her images and the possession of those images by many individuals such as Paroline. There is no doubt that everyone involved with child pornography—from the abusers and producers to the end-users and possessors—contribute to Amy’s ongoing harm. The Court is sympathetic to Amy and the harm that she has undoubtedly experienced and will continue to experience for the rest of her life. The Court also realizes that it is incredibly difficult to establish the amount of a victim’s losses proximately caused by any one defendant convicted of possession. However, the Court’s sympathy does not dispense with the requirement that the Government satisfy its burden of proving the amount of Amy’s losses proximately caused by Paro *793 line’s possession of her two images. Although this may seem like an impossible burden for the Government, the Court is nevertheless bound by the requirements of the statute. 12
Having reviewed all of the evidence, the Court finds that the Government has failed to meet its burden of proving any specific losses proximately caused by Paroline’s conduct. Thus, an award of restitution is not appropriate in this case.
See Berk,
CONCLUSION
Accordingly, the Court finds that Amy was harmed as a result of Paroline’s conduct and thus, is a “victim” for purposes of section 2259. However, a restitution award under section 2259 requires that the Government prove by a preponderance of the evidence the amount of the victim’s losses proximately caused by the defendant’s conduct. Having considered the parties’ oral arguments and written submissions, the Government has not met its burden of proving what losses, if any, were proximately caused by Paroline’s possession of Amy’s two pornographic images and thus, the Request for Restitution is DENIED.
Notes
. "Amy” is a pseudonym used to protect the privacy of the victim in the "Misty” child pornography series.
. A series is a collection of images and/or video files taken over a period of time, typically containing both pornographic and non-pornographic images of a child or children. NCMEC’s Brief, Dоcket No. 30, at 5.
. Amy was sexually exploited by her uncle when she was eight and nine years of age. She is now 19 years of age. The pornographic images of her abuse depict rape, cunnilingus, fellatio, and digital penetration. These images have been, and continue to be, traded and distributed on the Internet. Amy’s Latest Request for Restitution, Docket No. 54-2, at 3.
.This is only one of approximately 250 restitution requests Amy has filed against different defendants across the country who have been charged with possession of child pornography involving the "Misty” series.
. In his discovery motion, Paroline requested the data underlying Amy's experts' reports and requested that he be allowed to depose Amy's experts. The Court granted these requests. The Court also granted Paroline’s request for an accounting of all cases in which Amy had filed a similar restitution request and the amount of restitution ordered and collected in each case. Paroline further requested that Amy be produced for a forensic psychological or psychiatric examination. The Court denied this request. Paroline also requested expert funds to assist him in rebutting the data underlying Amy's Request for Restitution. The Court denied this request without prejudice to re-urging at a later date.
. Section 2259 provides:
(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.—The order of restitution under this section shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim's losses as determined by the court pursuant to paragraph (2).
(2) 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.
(3) Definition.—For purposes of this subsection, the term "full amount of the victim’s losses” includes any costs incurred by the victim for—
(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) attorneys' fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.
(4) Order mandatory.—
(A) The issuance of a restitution ordеr under this section is mandatory.
(B) A court may not decline to issue an order under this section because of—
(i) the economic circumstances of the defendant; or
(ii) the fact that a victim has, or is entitled to, receive compensation for his or her injuries from the proceeds of insurance or any other source.
(c)Definition.—For purposes of this section, the term "victim” means the individual harmed as a result of a commission of a crime under this chapter, including, in the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or representative of the victim's estate, another family member, or any other person ap *785 pointed as suitable by the court, but in no event shall the defendant be named as such representative or guardian.
. Thus, Amy seeks restitution for the full amount ($3,367,854) of her losses stemming from the abuse itself and the dissemination of her pornographic images. Amy’s theory of restitution is not limited to those losses proximately caused by any single defendant's possession of her images. She embraces the view that every defendant is jointly and severally liable for the total amount of her losses, although she points out that she is not seeking any windfall beyond her total losses, i.e. no double recovery.
. In further support of her argument against reading a proximate cause requirement into the statute, Amy argues that other federal restitution statutes require either "proximate harm” or "direct harm” in the definition of "victim” while section 2259 requires a more generalized "harm.” Amy’s Latest Request for Restitution, Docket No. 54-2, at 25. Amy suggests that by omitting the terms "directly” or "proximately” in section 2259's definition of "victim,” "Congress ... explicitly recognized the causal link between the criminal conduct ... and the harm experienced by the victims.” Id. However, this argument is unpersuasive because the Court has already concluded that Amy has been harmed by Paroline's conduct. The relevant inquiry at this stage of the analysis is not whether Amy has been harmed by Paroline’s conduct, but whether the statute requires that the Government prove the amount of Amy's losses proximately caused by Paroline’s conduct.
. The Eighth Amendment provides: “Excessive bail shall not be required, no excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII. Paroline cites to
United States v. Bajakajian,
where the Supreme Court held a criminal forfeiture invalid under the Eighth Amendment reasoning "[i]f the amount of the forfeiture is grossly disproportional to the gravity of the defendant's offense, it is unconstitutional.”
. This type of "possession case” differs from a "production case,” where the defendant is the actual abuser and producer of the child pornography. In a "production case” there is no question of causation because all of the victim's losses are proximately caused by the defendant.
See United States v. Baker,
. In addition, the Government, Amy, and Paroline entered into a Stipulation establishing that Amy does not know who Paroline is and none of the losses for which she seeks restitution flow from her knowledge about Paroline or his conduct (Docket No. 47). Paroline argues that this “effectively precludes a finding by the Court that any of Amy's injuries or damages were the proximate result of [his] conduct.” Defendant's Supplemental Brief, Docket No. 48, at 15. However, section 2259 does not require that Amy have knowledge of each individual possessor and his conduсt in order to establish proximate cause, it simply requires that restitution be tied to the victim's losses proximately caused by a defendant’s possession of Amy's images.
. While Congress was obviously well intended in attempting to create a statutory framework to help compensate victims of child pornography, it has unfortunately created one that is largely unworkable in the context of criminal restitution. 18 U.S.C. § 2255, however, does provide a civil remedy for those victims able to obtain counsel to pursue it. There is a great need for counseling and medical care for victims of child pornography. Perhaps a statutory provision requiring that fines for child pornography be paid to a national center that would act as a trustee to disburse funds for counseling of victims of child pornography would do more to help these victims than the seemingly unworkable criminal restitution provisions in 18 U.S.C. § 2259.
. In
Baker,
the Court relied on Congress’s mandated minimum damage amount of $150,000 set forth in 18 U.S.C. § 2255(a) to award the minor victims $150,000 each in restitution. The Court found the victims’ expert's estimate of losses inadequate to cover the full amount of the victims’ losses, reasoning that any award of restitution below the statutorily mandated minimum of $150,000 would fall short of making the minor victims whole. This case differs from
Baker
in two respects. First, the defendant in
Baker
was the actual producer and distributor of the child pornography and thus, causation was not an issue. Therefore, the Court's only task in
Baker
was to determine the proper amount of restitution. In contrast, as a case of first impression, this "possession case” required an exhaustive causation analysis to determine whether an award of restitution was even appropriate. Because the Court has concluded that the Government did not establish any specific losses proximately caused by Paroline's possession of Amy’s images, the amount of restitution in this case was not subject to calculation. Second, unlike
Baker,
where the Court was confident $150,000 was far below the minor victims' actual losses, the Court is concerned that a restitution award of $150,000 in this case may exceed any specific losses proximately caused by Paroline’s possession of Amy’s images.
See United States v. Austin,