Tuesday, January 31, 2012

En Banc Grant: Is Proximate Cause Required for Child Porn Restitution?

The Fifth Circuit will be revisiting en banc its decision in In re Amy Unknown, 636 F.3d 190 (2011), a mandamus action arising out of Doyle Paroline's prosecution for possession of child pornography. Two of the images Paroline possessed were of Amy Unknown; the images had been produced years before by an uncle who abused her as a young child.

After Paroline pleaded guilty, Amy Unknown sought restitution under 18 U.S.C. § 2259, which mandates restitution for losses incurred by victims of various offenses involving sexual exploitation of children. The district court denied restitution, concluding both that § 2259 requires that the defendant proximately cause the losses for which restitution is allowed, and that the Government failed to prove that Paroline's conduct was the proximate cause of Amy's losses.

Amy appealed the order denying restitution and also sought mandamus under the Crime Victims Rights Act (18 U.S.C. § 3771(d)(3)). A panel of the Fifth Circuit denied mandamus. A second panel was assigned both the direct appeal of the restitution order and Amy's petition for rehearing of the decision denying mandamus. That panel held, contrary to several other circuits, that § 2259 does not require a victim to show that the defendant proximately caused the losses for which restitution is allowed (except for a catch-all category of losses for which the statute specifically requires proximate cause). Also at issue was whether a crime victim has a right to a direct appeal in these circumstances; the second panel did not reach that issue because "the district court clearly and indisputably erred in grafting a proximate causation requirement onto the CVRA."

This AP story provides additional background about the case. (link via SL&P).

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