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March 23, 2011

Fifth Circuit rules in child porn case that no proximate causation needed to get restitution under CVRA

As Paul Cassell details in this post at The Volokh Conspiracy, on Tuesday "the Fifth Circuit gave victims of child pornography who are seeking restitution a significant victory [by accepting Paul's] arguments that the relevant restitution statute does not contain a proximate cause requirement for most categories of losses for which restitution can be awarded.  As a result, a victim of child pornography need only show that she was harmed to receive, for example, restitution for lost income or psychiatric counseling expenses — not that she suffered proximate harm from a defendant’s crime."

As Paul further explains, the Fifth Circuit's ruling in In re Amy Unknown, No. 09-4123 (5th Cir. March 22, 2011) (available here), if "followed by other courts, the Fifth Circuit’s decision will likely significantly expand the restitution that child pornography victims will receive."  But, as noted in this prior post, the Eleventh Circuit in another case a few months ago, US v. McDaniel, No. 09-1503 (11th Cir. Jan. 28, 2011) (available here), decided there was a proximate cause limitation on whether and when a victim can obtain restitution in these sorts of child porn downloading cases.  (Notably, McDaniel cites a prior ruling in the Amy case, but this new Amy Unknown ruling does not mention McDaniel.)  It is not clear that the conclusions reached Amy Unknown will carry the day in other circuits, but it is now even clearer that the US Supreme Court will have to take up this issue before too long.

The Fifth Circuit opinion in Amy Unknown is authored by Chief Judge Edith Jones, and it starts and ends this way: 

“Amy,” the victim of childhood sexual abuse and of a widely broadcast set of photos depicting her abuse, has pursued restitution under the Crime Victims Rights’ Act (“CVRA”), 18 U.S.C. § 3771(a)(6), against defendants who viewed her photos on the internet.  Her appeal from the district court’s denial of relief arrives in an unusual posture. She filed both a direct appeal under 28 U.S.C. § 1291 and a petition for a writ of mandamus under 18 U.S.C. § 3771(d)(3).  A panel of this court denied mandamus. In re Amy, 591 F.3d 792 (5th Cir. 2009).  This panel was assigned, for ease of administration, both the direct appeal and Amy’s motion for panel rehearing of her mandamus petition. We need not reach the issue whether a crime victim has a right to a direct appeal, because the district court clearly and indisputably erred in grafting a proximate causation requirement onto the CVRA.  Consequently, Appellant’s petition for panel rehearing is granted; her petition for a writ of mandamus is likewise granted, and the case is remanded to the district court to determine the amount of restitution owed by Doyle Randall Paroline...

Incorporating a proximate causation requirement where none exists is a clear and indisputable error.  Amy is entitled to receive restitution under the CVRA.  We therefore GRANT Amy’s petition for panel rehearing and likewise GRANT her petition for a writ of mandamus.  Because the district court did not quantify the amount of restitution to which Amy is entitled or the fraction attributable to Paroline, the case is REMANDED for resolution of that issue.

Some related recent federal child porn prosecution and sentencing posts:

March 23, 2011 at 02:56 AM | Permalink

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Comments

Such victimization is nearly impossible in an ordinary home. A home invader may hold the family at the point of a gun. Otherwise, the average parent would not allow such victimization. There is some possibility that more of her harm comes from a disturbed family than from the downloader. The feminist lawyer is protecting the evil family, and going after the productive male without showing direct harm. So money for lawyers, both plaintiff and defense, is the real aim of this campaign by the feminist lawyer. Typically, the families have no assets, so are off limits as far as any accountability is concerned. Amy should have been removed for her safety from this family. Instead, they will get enriched, despite being responsible for her abuse, almost as much as the producers.

Posted by: Supremacy Claus | Mar 23, 2011 5:31:07 AM

It will be interesting to see how the calculation works in these cases. The Court refers to the fraction attributed to the defendant. Apparently this particular victim's photos have been widely viewed. How will the court determine the extent to which she was harmed by this particular viewing? Does the court calculate the total damages then divide by the number of viewers? How are total damages calculated since the damage is ongoing and continues to accumulate?

I think that you are absolutely right that the Supreme Court is going to have to step in on these cases. I'm just not sure they will make it any better for anybody.

Posted by: Ala JD | Mar 23, 2011 12:27:29 PM

Ala JD,

The court doesn't bother with such a fine grained approach. They basically import joint and severable liability despite the fact that most of the offenders who've been ordered to pay have no common scheme. Instead of the victim having to prove that any particular offender caused X amount of damage the offender gets to try and go after other offenders and prove that the amount they've already paid is enough and that their new target owes more.

I hope SCOTUS takes one of these restitution cases soon and rules that normal proximate causation applies.

I could possibly see awards in the $3-10k range being reasonable, although even that is stretching it. There is no way I see the approach taken by this and a couple other cases as being reasonable.

Posted by: Soronel Haetir | Mar 23, 2011 12:50:39 PM

what a crock of shit! in no other type of case can you walk in and with no proof you were harmed demand millions in damages.

Posted by: rodsmith | Mar 23, 2011 5:15:19 PM

Always was interested in this theme! The Court refers to the fraction attributed to the defendant. Apparently this particular victim's photos have been widely viewed.

Posted by: russische frau | Mar 27, 2011 7:44:26 AM

The Feds usually go after big money. The lowest common denominator cases to states and municipalities. Is this where Feds take a piece of the money pie a la CVRA? I can hardly fathom how nonprofit download-share cases pays off for them. It's not like the MPAA and RIAA have a stake in cp cases.

Posted by: GilbertsHumptyDumpty | Apr 3, 2011 2:22:08 PM

Total bullshit thats all I can say.

Posted by: frank | Apr 3, 2011 7:45:00 PM

Thanks for your share,thanks a lot.Good luck!

Posted by: Big pony | Apr 11, 2011 6:17:27 AM

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