Paroline, Restitution, and Transferred Scienter: Child Pornography Possessors and Restitution Based on a Commerce Clause-Derived, Aggregate Proximate Cause Theory

Abstract

This Article responds to the Fifth Circuit’s decision in In re Amy Unknown, which is before the United States Supreme Court on granted writ of certiorari. This Article poses a more logical and legal construct, derived from Commerce Clause analysis, that although each individual possessor of child pornography appears to contribute almost imperceptibly to the original victim’s harm, instead, on an aggregate proximate cause theory, the original victim would not have been victimized at all had there been no aggregate market of willing possessors for the material. Victims of child pornography, under the federal statute, and via aggregate proximate cause, have a right to restitution as against the possessors.