Paroline v. United States

*439This case presents the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim whose childhood abuse appears in the pornographic materials possessed. The relevant statutory provisions are set forth at 18 U.S.C. § 2259. Enacted as a component of the Violence Against Women Act of 1994, § 2259 requires district courts to award restitution for certain federal criminal offenses, including child-pornography possession.

Petitioner Doyle Randall Paroline pleaded guilty to such an offense. He admitted to possessing between 150 and 300 images of child pornography, which included two that depicted the sexual exploitation of a young girl, now a young woman, who goes by the pseudonym "Amy" for this litigation. The question is what causal relationship must be established between the defendant's conduct and a victim's losses for purposes of determining the right to, and the amount of, restitution under § 2259.

I

Three decades ago, this Court observed that "the exploitive use of children in the production of pornography has become a serious national problem." New York v. Ferber, 458 U.S. 747, 749, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). The demand for child pornography harms children in part because it drives production, which *440involves child abuse. The harms caused by child pornography, however, are still more *1717extensive because child pornography is "a permanent record" of the depicted child's abuse, and "the harm to the child is exacerbated by [its] circulation." Id., at 759, 102 S.Ct. 3348. Because child pornography is now traded with ease on the Internet, "the number of still images and videos memorializing the sexual assault and other sexual exploitation of children, many very young in age, has grown exponentially." United States Sentencing Comm'n, P. Saris et al., Federal Child Pornography Offenses 3 (2012) (hereinafter Sentencing Comm'n Report).

One person whose story illustrates the devastating harm caused by child pornography is the respondent victim in this case. When she was eight and nine years old, she was sexually abused by her uncle in order to produce child pornography. Her uncle was prosecuted, required to pay about $6,000 in restitution, and sentenced to a lengthy prison term. The victim underwent an initial course of therapy beginning in 1998 and continuing into 1999. By the end of this period, her therapist's notes reported that she was " 'back to normal' "; her involvement in dance and other age-appropriate activities, and the support of her family, justified an optimistic assessment. App. 70-71. Her functioning appeared to decline in her teenage years, however; and a major blow to her recovery came when, at the age of 17, she learned that images of her abuse were being trafficked on the Internet. Id., at 71. The digital images were available nationwide and no doubt worldwide. Though the exact scale of the trade in her images is unknown, the possessors to date easily number in the thousands. The knowledge that her images were circulated far and wide renewed the victim's trauma and made it difficult for her to recover from her abuse. As she explained in a victim impact statement submitted to the District Court in this case:

"Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I *441will be humiliated all over again. It hurts me to know someone is looking at them-at me-when I was just a little girl being abused for the camera. I did not choose to be there, but now I am there forever in pictures that people are using to do sick things. I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop my uncle.... My life and my feelings are worse now because the crime has never really stopped and will never really stop.... It's like I am being abused over and over and over again." Id ., at 60-61.

The victim says in her statement that her fear and trauma make it difficult for her to trust others or to feel that she has control over what happens to her. Id., at 63.

The full extent of this victim's suffering is hard to grasp. Her abuser took away her childhood, her self-conception of her innocence, and her freedom from the kind of nightmares and memories that most others will never know. These crimes were compounded by the distribution of images of her abuser's horrific acts, which meant the wrongs inflicted upon her were in effect repeated; for she knew her humiliation and hurt were and would be renewed into the future as an ever-increasing number of wrongdoers witnessed the crimes committed against her.

Petitioner Paroline is one of the individuals who possessed this victim's images. In 2009, he pleaded guilty in federal court to one count of possession of material involving the sexual exploitation of children in violation of 18 U.S.C. § 2252. 672 F.Supp.2d 781, 783 (E.D.Tex.2009). Paroline admitted to knowing possession of between 150 and *1718300 images of child pornography, two of which depicted the respondent victim. Ibid. The victim sought restitution under § 2259, asking for close to $3.4 million, consisting of nearly $3 million in lost income and about $500,000 in future treatment and counseling costs. App. 52, 104. She also sought attorney's fees and costs. 672 F.Supp.2d, at 783. *442The parties submitted competing expert reports. They stipulated that the victim did not know who Paroline was and that none of her claimed losses flowed from any specific knowledge about him or his offense conduct. Id., at 792, and n. 11; App. 230.

After briefing and hearings, the District Court declined to award restitution. 672 F.Supp.2d, at 793. The District Court observed that "everyone involved with child pornography-from the abusers and producers to the end-users and possessors-contribute[s] to [the victim's] ongoing harm." Id., at 792. But it concluded that the Government had the burden of proving the amount of the victim's losses "directly produced by Paroline that would not have occurred without his possession of her images." Id., at 791. The District Court found that, under this standard, the Government had failed to meet its burden of proving what losses, if any, were proximately caused by Paroline's offense. It thus held that "an award of restitution is not appropriate in this case." Id., at 793.

The victim sought a writ of mandamus, asking the United States Court of Appeals for the Fifth Circuit to direct the District Court to order Paroline to pay restitution in the amount requested. In re Amy, 591 F.3d 792, 793 (2009). The Court of Appeals denied relief. Id., at 795. The victim sought rehearing. Her rehearing request was granted, as was her petition for a writ of mandamus. In re Amy Unknown, 636 F.3d 190, 201 (2011).

The Fifth Circuit reheard the case en banc along with another case, in which the defendant, Michael Wright, had raised similar issues in appealing an order of restitution under § 2259, see United States v. Wright, 639 F.3d 679, 681 (2011) (per curiam ). As relevant, the Court of Appeals set out to determine the level of proof required to award restitution to victims in cases like this. It held that § 2259 did not limit restitution to losses proximately caused by the defendant, and each defendant who possessed the victim's images *443should be made liable for the victim's entire losses from the trade in her images, even though other offenders played a role in causing those losses. In re Amy Unknown, 701 F.3d 749, 772-774 (2012) (en banc).

Paroline sought review here. Certiorari was granted to resolve a conflict in the Courts of Appeals over the proper causation inquiry for purposes of determining the entitlement to and amount of restitution under § 2259. 570 U.S. ----, 133 S.Ct. 2886, 186 L.Ed.2d 932 (2013). For the reasons set forth, the decision of the Court of Appeals is vacated.

II

Title 18 U.S.C. § 2259(a) provides that a district court "shall order restitution for any offense" under Chapter 110 of Title 18, which covers a number of offenses involving the sexual exploitation of children and child pornography in particular. Paroline was convicted of knowingly possessing child pornography under § 2252, a Chapter 110 offense.

Section 2259 states a broad restitutionary purpose: It requires district courts to order defendants "to pay the victim ... the full amount of the victim's losses as determined by the court," § 2259(b)(1), and expressly states that "[t]he issuance of a restitution order under this section is *1719mandatory," § 2259(b)(4)(A). Section 2259(b)(2) provides that "[a]n order of restitution under this section shall be issued and enforced in accordance with section 3664," which in turn provides in relevant part that "[t]he burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government," § 3664(e).

The threshold question the Court faces is whether § 2259 limits restitution to those losses proximately caused by the defendant's offense conduct. The Fifth Circuit held that it does not, contrary to the holdings of other Courts of Appeals to have addressed the question. Compare, e.g., 701 F.3d, at 752 (no general proximate-cause requirement applies under § 2259 ), with *444United States v. Rogers, 714 F.3d 82, 89 (C.A.1 2013) (general proximate-cause requirement applies under § 2259 ); United States v. Benoit, 713 F.3d 1, 20 (C.A.10 2013) (same); United States v. Fast, 709 F.3d 712, 721-722 (C.A.8 2013) (same); United States v. Laraneta, 700 F.3d 983, 989-990 (C.A.7 2012) (same); United States v. Burgess, 684 F.3d 445, 456-457 (C.A.4 2012) (same); United States v. Evers, 669 F.3d 645, 659 (C.A.6 2012) (same); United States v. Aumais, 656 F.3d 147, 153 (C.A.2 2011) (same); United States v. Kennedy, 643 F.3d 1251, 1261 (C.A.9 2011) (same); United States v. Monzel, 641 F.3d 528, 535 (C.A.D.C.2011) (same); United States v. McDaniel, 631 F.3d 1204, 1208-1209 (C.A.11 2011) (same).

As a general matter, to say one event proximately caused another is a way of making two separate but related assertions. First, it means the former event caused the latter. This is known as actual cause or cause in fact. The concept of actual cause "is not a metaphysical one but an ordinary, matter-of-fact inquiry into the existence ... of a causal relation as laypeople would view it." 4 F. Harper, F. James, & O. Gray, Torts § 20.2, p. 100 (3d ed. 2007).

Every event has many causes, however, see ibid., and only some of them are proximate, as the law uses that term. So to say that one event was a proximate cause of another means that it was not just any cause, but one with a sufficient connection to the result. The idea of proximate cause, as distinct from actual cause or cause in fact, defies easy summary. It is "a flexible concept," Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 654, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008), that generally "refers to the basic requirement that ... there must be 'some direct relation between the injury asserted and the injurious conduct alleged,' " CSX Transp., Inc. v. McBride, 564 U.S. ----, ----, 131 S.Ct. 2630, 2645, 180 L.Ed.2d 637 (2011) (ROBERTS, C.J., dissenting) (quoting Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) ). The concept of proximate causation is applicable in both criminal and tort law, and the analysis is parallel in many instances. 1 W. LaFave, *445Substantive Criminal Law § 6.4(c), p. 471 (2d ed. 2003) (hereinafter LaFave). Proximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct. See, e.g., ibid. ; 1 Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 29, p. 493 (2005) (hereinafter Restatement). A requirement of proximate cause thus serves, inter alia, to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity. Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 838-839, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996). *1720All parties agree § 2259 imposes some causation requirement. The statute defines a victim as "the individual harmed as a result of a commission of a crime under this chapter." § 2259(c). The words "as a result of" plainly suggest causation. See Pacific Operators Offshore, LLP v. Valladolid, 565 U.S. ----, ----, 132 S.Ct. 680, 690-691, 181 L.Ed.2d 675 (2012); see also Burrage v. United States, 571 U.S. ----, ----, 134 S.Ct. 881, 886-887, 187 L.Ed.2d 715 (2014). And a straightforward reading of § 2259(c) indicates that the term "a crime" refers to the offense of conviction. Cf. Hughey v. United States, 495 U.S. 411, 416, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990). So if the defendant's offense conduct did not cause harm to an individual, that individual is by definition not a "victim" entitled to restitution under § 2259.

As noted above, § 2259 requires a court to order restitution for "the full amount of the victim's losses," § 2259(b)(1), which the statute defines to include "any costs incurred by the victim" for six enumerated categories of expense, § 2259(b)(3). The reference to "costs incurred by the victim" is most naturally understood as costs stemming from the source that qualifies an individual as a "victim" in the first place-namely, ones arising "as a result of" the offense. Thus, as is typically the case with criminal restitution, § 2259 is intended to compensate victims for losses caused by the offense of conviction. See id., at 416, 110 S.Ct. 1979. This is an important point, for it means the central concern of the causal inquiry must be the conduct of the particular defendant from whom restitution is sought.

*446But there is a further question whether restitution under § 2259 is limited to losses proximately caused by the offense. As noted, a requirement of proximate cause is more restrictive than a requirement of factual cause alone. Even if § 2259 made no express reference to proximate causation, the Court might well hold that a showing of proximate cause was required. Proximate cause is a standard aspect of causation in criminal law and the law of torts. See 1 LaFave § 6.4(a), at 464-466; W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 41, p. 263 (5th ed. 1984) (hereinafter Prosser and Keeton). Given proximate cause's traditional role in causation analysis, this Court has more than once found a proximate-cause requirement built into a statute that did not expressly impose one. See Holmes, supra, at 265-268, 112 S.Ct. 1311; Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 529-536, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) ; see also CSX Transp., Inc., supra, at ----, 131 S.Ct., at 2646 (ROBERTS, C.J., dissenting) ("We have applied the standard requirement of proximate cause to actions under federal statutes where the text did not expressly provide for it"); Lexmark Int'l, Inc. v. Static Control Components, Inc., ante, at 13-14.

Here, however, the interpretive task is easier, for the requirement of proximate cause is in the statute's text. The statute enumerates six categories of covered losses. § 2259(b)(3). These include certain medical services, § 2259(b)(3)(A) ; physical and occupational therapy, § 2259(b)(3)(B) ; transportation, temporary housing, and child care, § 2259(b)(3)(C) ; lost income, § 2259(b)(3)(D) ; attorney's fees and costs, § 2259(b)(3)(E) ; and a final catchall category for "any other losses suffered by the victim as a proximate result of the offense," § 2259(b)(3)(F).

The victim argues that because the "proximate result" language appears only in the final, catchall category of losses set forth at § 2259(b)(3)(F), the statute has no proximate-cause requirement for losses falling within the prior enumerated categories.

*1721She justifies this reading of § 2259(b) in part on *447the grammatical rule of the last antecedent, "according to which a limiting clause or phrase ... should ordinarily be read as modifying only the noun or phrase that it immediately follows." Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003). But that rule is "not an absolute and can assuredly be overcome by other indicia of meaning." Ibid. The Court has not applied it in a mechanical way where it would require accepting "unlikely premises." United States v. Hayes, 555 U.S. 415, 425, 129 S.Ct. 1079, 172 L.Ed.2d 816 (2009).

Other canons of statutory construction, moreover, work against the reading the victim suggests. "When 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 Railway, Light & Power Co. v. Mor, 253 U.S. 345, 348, 40 S.Ct. 516, 64 L.Ed. 944 (1920). Furthermore, "[i]t is ... a familiar canon of statutory construction that [catchall] clauses are to be read as bringing within a statute categories similar in type to those specifically enumerated." Federal Maritime Comm'n v. Seatrain Lines, Inc., 411 U.S. 726, 734, 93 S.Ct. 1773, 36 L.Ed.2d 620 (1973). Here, § 2259(b)(3)(F) defines a broad, final category of "other losses suffered ... as a proximate result of the offense." That category is most naturally understood as a summary of the type of losses covered-i.e., losses suffered as a proximate result of the offense.

The victim says that if Congress had wanted to limit the losses recoverable under § 2259 to those proximately caused by the offense, it could have written the statute the same way it wrote § 2327, which provides for restitution to victims of telemarketing fraud. Section 2327, which is written and structured much like § 2259, simply defines the term "full amount of the victim's losses" as "all losses suffered by the victim as a proximate result of the offense." § 2327(b)(3). In essence the victim argues that the first five categories of losses enumerated in § 2259(b)(3) would be superfluous if all were governed by a proximate-cause requirement. That, *448however, is unpersuasive. The first five categories provide guidance to district courts as to the specific types of losses Congress thought would often be the proximate result of a Chapter 110 offense and could as a general matter be included in an award of restitution.

Reading the statute to impose a general proximate-cause limitation accords with common sense. As noted above, proximate cause forecloses liability in situations where the causal link between conduct and result is so attenuated that the so-called consequence is more akin to mere fortuity. For example, suppose the traumatized victim of a Chapter 110 offender needed therapy and had a car accident on the way to her therapist's office. The resulting medical costs, in a literal sense, would be a factual result of the offense. But it would be strange indeed to make a defendant pay restitution for these costs. The victim herself concedes Congress did not intend costs like these to be recoverable under § 2259. Brief for Respondent Amy 45. But she claims that it is unnecessary to "read ... into" § 2259 a proximate-cause limitation in order to exclude costs of that sort. Ibid. She says the statute "contextually and inferentially require[s] a nexus for why" the losses were sustained-i.e., a sufficient connection to child pornography. Id., at 46.

The victim may be right that the concept of proximate cause is not necessary to impose sensible limitations on restitution *1722for remote consequences. But one very effective way, and perhaps the most obvious way, of excluding costs like those arising from the hypothetical car accident described above would be to incorporate a proximate-cause limitation into the statute. Congress did so, and for reasons given above the proximate-cause requirement applies to all the losses described in § 2259. Restitution is therefore proper under § 2259 only to the extent the defendant's offense proximately caused a victim's losses.

III

*449There remains the difficult question of how to apply the statute's causation requirements in this case. The problem stems from the somewhat atypical causal process underlying the losses the victim claims here. It is perhaps simple enough for the victim to prove the aggregate losses, including the costs of psychiatric treatment and lost income, that stem from the ongoing traffic in her images as a whole. (Complications may arise in disaggregating losses sustained as a result of the initial physical abuse, but those questions may be set aside for present purposes.) These losses may be called, for convenience's sake, a victim's "general losses." The difficulty is in determining the "full amount" of those general losses, if any, that are the proximate result of the offense conduct of a particular defendant who is one of thousands who have possessed and will in the future possess the victim's images but who has no other connection to the victim.

In determining the amount of general losses a defendant must pay under § 2259 the ultimate question is how much of these losses were the "proximate result," § 2259(b)(3)(F), of that individual's offense. But the most difficult aspect of this inquiry concerns the threshold requirement of causation in fact. To be sure, the requirement of proximate causation, as distinct from mere causation in fact, would prevent holding any possessor liable for losses caused in only a remote sense. But the victim's costs of treatment and lost income resulting from the trauma of knowing that images of her abuse are being viewed over and over are direct and foreseeable results of child-pornography crimes, including possession, assuming the prerequisite of factual causation is satisfied. The primary problem, then, is the proper standard of causation in fact.

A

The traditional way to prove that one event was a factual cause of another is to show that the latter would not have *450occurred "but for" the former. This approach is a familiar part of our legal tradition, see 1 LaFave § 6.4(b), at 467-468; Prosser and Keeton § 41, at 266, and no party disputes that a showing of but-for causation would satisfy § 2259's factual-causation requirement. Sometimes that showing could be made with little difficulty. For example, but-for causation could be shown with ease in many cases involving producers of child pornography, see § 2251(a); parents who permit their children to be used for child-pornography production, see § 2251 (b); individuals who sell children for such purposes, see § 2251A; or the initial distributor of the pornographic images of a child, see § 2252.

In this case, however, a showing of but-for causation cannot be made. The District Court found that the Government failed to prove specific losses caused by Paroline in a but-for sense and recognized that it would be "incredibly difficult" to do so in a case like this. 672 F.Supp.2d, at 791-793. That finding has a solid foundation in the record, and it is all but unchallenged in this Court. See Brief for Respondent *1723Amy 63; Brief for United States 19, 25. But see Supp. Brief for United States 8-10. From the victim's perspective, Paroline was just one of thousands of anonymous possessors. To be sure, the victim's precise degree of trauma likely bears a relation to the total number of offenders; it would probably be less if only 10 rather than thousands had seen her images. But it is not possible to prove that her losses would be less (and by how much) but for one possessor's individual role in the large, loosely connected network through which her images circulate. See Sentencing Comm'n Report, at ii, xx. Even without Paroline's offense, thousands would have viewed and would in the future view the victim's images, so it cannot be shown that her trauma and attendant losses would have been any different but for Paroline's offense. That is especially so given the parties' stipulation that the victim had no knowledge of Paroline. See supra, at 1736 - 1737. *451Recognizing that losses cannot be substantiated under a but-for approach where the defendant is an anonymous possessor of images in wide circulation on the Internet, the victim and the Government urge the Court to read § 2259 to require a less restrictive causation standard, at least in this and similar child-pornography cases. They are correct to note that courts have departed from the but-for standard where circumstances warrant, especially where the combined conduct of multiple wrongdoers produces a bad outcome. See Burrage, 571 U.S., at ----,