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2nd Circuit nixes joint and several liability in $3.4M child porn restitution case

Holding all the responsible individuals jointly and severally liable for a tort may be appropriate in a civil action.

But it is not a proper remedy when pursuing mandatory restitution for criminal conduct under the Violence Against Women Act, a federal appeals court ruled Monday in a young woman’s much-watched case seeking restitution for the damage she suffered from child pornography, according to Courthouse News and the New York Law Journal (reg. req.).

The victim, known as Amy, was sexually abused by her uncle when she was a small child. She had seemingly recovered when she discovered, at age 17, that he had taken photos of her at age 4 that were still circulating on the Internet. The National Center for Missing and Exploited Children said 35,000 “extremely graphic” images of Amy were found among the evidence in over 3,200 child porn cases during the past 15 years.

Each time she was notified, under the Crime Victims’ Rights Act, of a new case, the alerts triggered what the New York City-based 2nd U.S. Circuit Court of Appeals described as “problems in the areas of ‘[m]ood regulation, cognitive distortions, feelings of shame, self-blame, and guilt, self-esteem, alcohol abuse, dissociation, academic progress, interpersonal relationships, and vocational success.’”

More than 100 individuals prosecuted for possessing the images were included in a $3.4 million award of restitution, under the VAWA, in federal district court in New York. Defendant Avery Lundquist was held jointly and severally liable with others who viewed the images for the total judgment. (An earlier Courthouse News article explains how the government calculated Amy’s losses.)

The 2nd Circuit said Lundquist could be required to pay nearly $30,000 in restitution for injuries to Amy which he had been found to have proximately caused, but rejected the idea that he could potentially be held responsible for all of her damages.

“The evidence shows that Lundquist contributed to Amy’s losses, but there is no evidence that he has caused all of her losses,” said Judge Denny Chin in the court’s written opinion (PDF). “Indeed, Amy’s losses exceed $3 million primarily because there are so many people viewing her images on the Internet. These circumstances make it unclear when, or if, she will ever obtain the necessary ‘sense of safety that the trauma is over and that the past will not be replayed in the present,’ which is essential to recovery. If Lundquist were the only person who had downloaded images of the abuse Amy suffered, his arrest might provide her with that feeling of safety. Unfortunately, he is not alone.”

See also:

ABA Journal: “Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?”