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March 26, 2011

Notable media coverage of Fifth Circuit Amy child porn restitution ruling

The biggest development in sentencing jurisprudence this past week was the Fifth Circuit's fascinating (and suspect?) ruling that no proximate causation showing is needed to support a restitution order in the child pornography downloading case known as In re Amy Unknown, No. 09-4123 (5th Cir. March 22, 2011) (available here).  Consequently, I am pleased to see from this new AP article, headlined "Legal experts: Ruling benefits child porn victims," that the traditional media is taking note of the Fifth Circuit's decision (which I first discussed here). 

Here are excerpts from the lengthy and effective AP piece:

Victims of child pornography around the country could have an easier time getting restitution from those convicted of possessing such images, according to a federal appeals court ruling this week in a Texas case.  But legal experts say the issue now may have to be decided by the U.S. Supreme Court because courts throughout the United States are split on how to award such compensation.

The 5th U.S. Circuit Court of Appeals on Tuesday ruled that federal restitution law doesn't generally require victims to specifically detail how an individual defendant has harmed them in order to receive restitution.  Other national appeals court rulings, including in Georgia and Montana, have upheld restitution awards against individuals convicted of possessing child pornography.  But those courts interpreted federal law to require that victims show a more direct connection between what a defendant did and the harm victims suffered.

"It's a big deal," Jeff Bellin, a law professor at Southern Methodist University in Dallas, said of the 5th Circuit's ruling.  "This is clearly the most significant victory that proponents of this type of interpretation (of restitution law) have had in the courts so far."...   The 5th Circuit's decision reverses a previous decision by a different panel of the same appeals court that had ruled against Amy, who is now in her early 20s.

Stanley Schneider, Paroline's attorney, said he planned to appeal the ruling to the full appeals court and if needed to the U.S. Supreme Court.  "If a person is selling pornography ... or distributing the image, that is (one) question," he said.  "But if someone is sitting and doing nothing more than looking at images, possessing them, there has to be a causal connection" for the harm they have allegedly caused a victim.  Schneider said Amy did not know beforehand that Paroline had seen images of her.

[Paul] Cassell, who [is one of Amy's lawyers and] also is a law professor at the University of Utah, said individuals like Paroline harm victims simply by viewing images of them.  "It's psychiatric death by a thousand cuts because she is being harmed over and over again by these faceless, nameless criminals who are looking at these images over and over again," Cassell said.

Cassell said about a third of the $3.4 million Amy is asking for, which is paying for lifetime counseling costs and lost income, has already been recovered from other claims around the country.  The U.S. Attorney's Office for the Eastern District of Texas, which prosecuted Paroline and opposed Amy's appeal, declined to comment.

Under the law, victims of child pornography can be awarded restitution. But federal judges around the country have had varied interpretations of the restitution statute, with some awarding large amounts, others nominal amounts and others denying it altogether.  "Do I think it resolves the issue? As an advocate, I hope it resolves it. But it will eventually make its way to the Supreme Court," said Meg Garvin, executive director of the National Crime Victim Law Institute, located at Lewis & Clark College's School of Law in Portland, Ore.

Some related recent federal child porn restitution posts:

March 26, 2011 at 02:02 PM | Permalink

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"[Paul] Cassell, who [is one of Amy's lawyers and] also is a law professor at the University of Utah, said individuals like Paroline harm victims simply by viewing images of them. "It's psychiatric death by a thousand cuts because she is being harmed over and over again by these faceless, nameless criminals who are looking at these images over and over again," Cassell said."

In the absence of a proximate cause analysis, and the intervening cause of her sick family, that claim is just made up by the lawyer. Unless she was snatched by strangers, filmed by them, her family likely has problems. Even if she were snatched by strangers off the street, the family failed to provide enough supervision and protection. The family had to have been held at gunpoint when snatched for their pathology to not be a contributing factor.

Say her therapy costs $340 a session. She will be getting 10,000 sessions. The effect of repeatedly harping on trauma 10,000 times, as opposed to moving on, will likely damage her. If she uses the payment for the enrichment of therapists, that will be harmful.

What is not being said. We want to collect $millions so that we may get enormous contingency fees, milking this cow like another asbestos case.

If people want to help the current and future victims of sex abuse, filmed or unfilmed, spend the $3.4 million on the strengthening of the family, solely by reducing the vile feminist lawyer cause rate of bastardy. There is no greater prevention of child sexual abuse by pedophiles than a normal father in the home. Start a legal foundation to counterattack the vile feminist lawyer all out war on the American family.

Posted by: Supremacy Claus | Mar 26, 2011 4:29:11 PM

"[Paul] Cassell, who [is one of Amy's lawyers and] also is a law professor at the University of Utah, said individuals like Paroline harm victims simply by viewing images of them."

Really? How? I'm not about to defend these guys, but how exactly does looking at a picture harm another person thousands of miles away, who doesn't even know it's happening? And Cassell's not talking about distribution or production, he's explicitly saying that looking at someone's picture can harm the person in the picture. Unfortunately, judges and prosecutors are fond of making similar claims. This is why there is such a disconnect between the punishments meted out in these cases and the severity of the offense.

Posted by: L.D. | Mar 27, 2011 12:06:07 AM

Rational laws are one thing, law founded on junk science is something else entirely.

Women's Funding Network Sex Trafficking Study Is Junk Science

In fact, the group behind the study admits as much. It's now clear it used fake data to deceive the media and lie to Congress. And it was all done to score free publicity and a wealth of public funding.

"We pitch it the way we think you're going to read it and pick up on it," says Kaffie McCullough, the director of Atlanta-based antiprostitution group A Future Not a Past. "If we give it to you with all the words and the stuff that is actually accurate — I mean, I've tried to do that with our PR firm, and they say, 'They won't read that much.'"

Posted by: George | Mar 27, 2011 3:39:27 PM

sounds like a few women and the congressmen and senator's who supported them need to be arrested and charged! with fraud at a minimum. Diverting limitied govt funds in WARTIME for useless junk studies could also be considered TREASON!

Posted by: rodsmith | Mar 29, 2011 1:37:04 AM

The government seems to cause more harm through their notice procedure. Ignorance may not be bliss but constant reminders of the pain surely doesn't help. If victims didn't receive the notices, would they need as much counseling? Remember, for restitution purposes, this isn't for the counseling and healing related to the actual abuse, it's due to the knowledge that people are viewing the pictures online. In the end, does this vague knowledge of some sicko's voyeurism, which will almost always exist as long as the internet does, harm as much as the pain of opening dozens of notice from DoJ? The prosecutions may help them feel better, but I'd bet the notices cause more harm than good.

Posted by: FDR3 | Mar 30, 2011 10:45:50 PM

Correction, NCMEC notice. As stated in a relevant 11th Cir case posted on this blog, "Dr. Green explained that each NCMEC notification adds to the 'slow acid drip' of trauma and exacerbates Vicky’s emotional issues. He testified that each notification is 'extraordinarily distressing and emotionally painful' to Vicky ...."


Posted by: FDR3 | Mar 30, 2011 10:50:58 PM

Thank you for sharing,it is very helpful and I really like it!

Posted by: Big pony | Apr 11, 2011 6:14:54 AM

child porn restitution ruling is best for any country and applicable for this case, very good revision.

Posted by: Patterson lawfirm | May 23, 2011 1:56:52 AM

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