Fifth Circuit Issues Landmark Ruling for Child Victims

Late yesterday, the Fifth Circuit Court of Appeals in New Orleans adopted my longstanding position that there is no general proximate cause requirement governing restitution for victims of child pornography.

Since the New York Times wrote this story last year about our firm’s effort to obtain restitution for a child pornography victim known as “Amy,” hundreds of federal district courts across the country have denied restitution or issued de minimus restitution orders on her behalf.

The Fifth Circuit’s unprecedented decision held that proximate cause is not a general requirement when deciding restitution and only applies to one open ended provision in the list of enumerated damages in the restitution law written by then-Senator Joe Biden as part of his landmark 1994 Violence Against Women Act (VAWA).

What makes this decision exceptional is that it was decided under a higher standard of review which is limited to mandamus – a rarely used procedural mechanism to bring an appeal. Mandamus requires that the lower court’s decision be “clearly and indisputably wrong” instead of standard “de novo” appellate review.

In December 2009, we sought both mandamus and standard appellate review of an adverse restitution decision issued in the Eastern District of Texas. The Fifth Circuit initially ruled 2-1 against our position, but consolidated and reconsidered our appeal last year.

Oral argument was held in early November with former federal judge Professor Paul Cassell skillfully presenting Amy’s case.

In issuing its decision, the Court adopted our long-established argument that proximate cause does not apply to the entire restitution statute, just to one subsection of the statute.

This decision will make it much easier for victims of child pornography and exploitation to hold each and every criminal defendant liable in restitution for the “full amount” of their damages.

Writing for the three judge panel, Chief Judge Edith H. Jones conclusively held that even under heightened mandamus review, the district court’s decision to deny Amy restitution because the government failed to prove what losses, if any, were proximately caused by the defendants possession of two pornographic images, was “clearly and indisputably wrong.”

The structure and language of § 2259(b)(3) impose a proximate causation requirement only on miscellaneous “other losses” for which a victim seeks restitution. . . . Comparing the language of § 2259 with other restitution statutes affirms the conclusion that proximate causation applies only to the catchall category of harms.

The Court concluded that:

Restricting the “proximate result” language to the catchall category in which it appears does not open the door to limitless restitution. The statute itself includes a general causation requirement in its definition of a victim: “For purposes of this section, the term ‘victim’ means the individual harmed as a result of a commission of a crime under this chapter . . .” 18 U.S.C. § 2259(c). (emphasis added). . . . Given the statute’s built-in causation requirement and the volume of causation evidence in the context of child pornography, fears over excessive punishment are misplaced. . . . Incorporating a proximate causation requirement where none exists is a clear and indisputable error. Amy is entitled to receive restitution under the Crime Victim Rights Act.

We do not yet know if either the United States or the defendant will seek review by the full court or appeal the decision to the United States Supreme Court.

6 Replies to "Fifth Circuit Issues Landmark Ruling for Child Victims"

  • Anonymous
    March 23, 2011 (7:09 pm)

    Congrats on a big win for kids!

  • Maureen Horkan
    March 23, 2011 (8:10 pm)

    CONGRATULATIONS JAMES!! Bravo to you for your determination! This is a big win!

  • Carmen Durso
    March 24, 2011 (10:24 am)

    James, great work!

  • Wendy Edwards
    March 24, 2011 (1:50 pm)

    Congratulations! That’s a great victory!

  • Michigan Criminal Attorney
    March 28, 2011 (1:16 pm)

    I agree with the other posters, this is a big victory and should not be taken lightly. Anything to help lessen child pornography is a great thing.

  • Anonymous
    June 16, 2011 (1:26 pm)

    This is not great…..while i think everything should be done to lessen child pornography, this ruling says any victim of child abuse can go after anyone convicted of possessing it… you unknowingly download one photo of “amy” and you are liable for all her trauma…..come on. I feel bad for what happened to amy but this is bad law. The U.S. is the only victim of the crime of possession, not amy. And for the record “Amy” is not so traumatized that she cant travel the country seeking thousands of dollars from everyone…..