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Rethinking Restitution in Cases of Child Pornography Possession

78 Pages Posted: 25 Jan 2013 Last revised: 27 Feb 2013

Jennifer A.L. Sheldon-Sherman

Judicial Law Clerk; Stanford Law School

Date Written: August 1, 2012


Child pornography is increasingly prevalent in today’s society and is now one of the fastest growing Internet activities. Unlike producers, possessors of child pornography do not actively engage in the physical and sexual abuse of children. However, possessors are viewers of this documented abuse and rape, and can be, therefore, similarly responsible for the perpetual victimization of innocent youth. In 1994, Congress sought to protect victims of sexual exploitation and child pornography with the passage of the Mandatory Restitution Provision, 18 U.S.C. § 2259. While the meaning of § 2259 seems to unambiguously require restitution from defendants convicted of production, distribution, and possession of child pornography, courts’ interpretation of the provision have been less clear. Courts unhesitatingly order restitution in cases where the offender is responsible for the production of child pornography and is, therefore, directly linked to identifiable victim harm. More problematic, however, are cases where a victim seeks restitution against a defendant who did not produce the pornography but rather possessed it. In these cases, courts confront the issue of whether a victim must prove a causal connection between the defendant’s possession of the pornography and the victim’s alleged harm. To date, the literature has focused on whether § 2259 contains a proximate cause requirement. I seek to advance this discussion, arguing that regardless of the interpretation of § 2259, the statute is not an appropriate means of compensating victims while also ensuring fairness for defendants. Accordingly, the statute as it currently operates is inefficient and unjust. This Article addresses that injustice, evaluating the underlying controversy regarding restitution for victims of child pornography possession under § 2259, discussing the judiciary’s approach to the issue, analyzing the difficulty in awarding restitution under § 2259 in cases of child pornography possession, and advocating a reformed system for issuing restitution in these cases.

Keywords: child pornography, possession, restitution, proximate causation, joint and several liability, 18 U.S.C. § 2259

Suggested Citation

Sheldon-Sherman, Jennifer A.L., Rethinking Restitution in Cases of Child Pornography Possession (August 1, 2012). 17 Lewis & Clark Law Review 215 (2013). Available at SSRN:

Jennifer A.L. Sheldon-Sherman (Contact Author)

Judicial Law Clerk ( email )

No Address Available

Stanford Law School

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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