2nd Circuit reverses decision to hold defendant jointly and severally liable for child pornography victim's losses

In United States v. Lundquist, No. 11-5379 (2d Cir. 2013), the Second Circuit held that a child pornography possessor could not be held jointly and severally liable for harm to the victim.

Lundquist was convicted of receipt and possession of child pornography. Among the images in his possession was one of the "Amy" series. Amy was victimized by her uncle and has sought for years to obtain restitution from those who continue to download images of her. Her total damages have been calculated at $3,381,159.

Courts have debated many issues regarding restitution under the federal child pornography statutory scheme, including whether proximate cause is required and how the restitution is calculated. Some jurisdictions hold possessors jointly and severally liable (in this case, meaning they can be held liable for the entire amount of damages) while others assess damages at only a fraction of the total (such as dividing it by the total number of defendants convicted for possessing images of the same victim).

In Lundquist, the district court held that the defendant should be ordered to pay the full amount of Amy's losses. The Second Circuit, however, found that the defendant was not the cause of "all of [Amy's] losses" as the $3 million is so high "primarily because there are so many people viewing her images."

The appeals court, however, acknowledged the benefits of joint and several liability, but suggested instead bringing a civil suit rather than seeking mandatory restitution.

We understand, as a policy matter, why joint and several liability is an appealing option in this type of case. Joint and several liability would permit the victims of child pornography to collect their full losses from any well-heeled defendant, rather than require them to pursue defendants who may be, or later become, insolvent. Such an approach would also place the onus on guilty defendants to seek contribution from each other, rather than require the innocent victims to request restitution from each defendant.

We sympathize with these policy arguments and acknowledge that joint and several liability might be appropriate if Amy had brought a civil tort action against those who downloaded images of her abuse.

The Second Circuit also held that several types of losses could not be included in the total calculation. First, "Lundquist cannot be ordered to make restitution for harm that Amy's uncle's conduct proximately caused." Also, because the defendant obtained the images of Amy in 2010, he could not be held liable for therapy costs "incurred in 2009 or earlier."

Read more about restitution for Amy in previous Cybercrime Review posts.