Restitution and Encouraging Child Sex Abuse
by: Jpeterson • April 29, 2014 • no comments
Courts around the country, including Oregon, are wrestling with the issue of how to impose restitution for the crime of encouraging child sexual abuse (ECSA). The United States Supreme Court addressed the issue last week in Paroline v. United States. The Supreme Court construed the federal statutory restitution scheme, and it is unclear what, if any, effect the opinion will have on Oregon law. The opinion is notable, if only because it perfectly illustrates the complexity of the issue, with three different viewpoints expressed: that under current law victims are entitled to nothing (Justice Roberts’s dissent), everything (Justice Sotomayor’s dissent), or something in between (Justice Kennedy’s majority).
In Oregon, the general law about imposing restitution and compensatory fines is well settled. There are three prerequisites to a trial court imposing restitution or a compensatory fine: (1) criminal conduct, (2) damages, and (3) a causal relationship between the two. State v. Dillon, 292 Or 172, 181 (1981); State v. Donahue, 165 Or App 143, 146 (2000). “[C]ausation is met by applying a ‘but for’ standard.” State v. Bullock, 135 Or App 303, 307 (1995). Damages for both restitution and a compensatory fine are “economic damages,” which are, essentially, “objectively verifiable monetary losses.” ORS 31.710(2)(a); ORS 137.103(2). The state has the burden. See State ex rel Juv. Dept. v. S.J.P., 247 Or App 698, 702, 271 P3d 124 (2012) (so noting for a compensatory fine).
Though the general framework is well settled, courts are struggling with how to apply it to the unique harm caused by ECSA. The majority opinion in Paroline summarizes the alleged harm in many ECSA cases:
- “The full extent of this victim’s suffering is hard to grasp. Her abuser took away her childhood, her self-conception of her innocence, and her freedom from the kind of nightmares and memories that most others will never know. These crimes were compounded by the distribution of images of her abuser’s horrific acts, which meant the wrongs inflicted upon her were in effect repeated; for she knew her humiliation and hurt were and would be renewed into the future as an ever-increasing number of wrongdoers witnessed the crimes committed against her.”
The current statutory scheme for restitution and compensatory fines seems best suited for the harm caused by the original abuser, which will likely lead directly to identifiable harm and damages. Applying the scheme to the “ever-increasing number of wrongdoers” is more complex, and is an unsettled area of law in Oregon. Several issues remain and might be worth preserving. Initially, a trial court will be faced with two questions: (1) has the state proven causation, i.e., that this defendant caused this victim an injury, and (2) if so, how does the court calculate damages?
I. Causation
An issue in many ECSA cases will be whether the state has established a but-for connection between the defendant’s criminal conduct and the victim’s injuries. The analysis is fact-specific, so fact-matching with another case may not be helpful (unless an appellate court addresses this specific issue). A good case for the defense might be State v. Sigman, 141 Or App 479 (1996). In Sigman, the defendant was convicted of burglary and theft, but the trial court imposed restitution for the victim’s medical expenses, which were caused by another person's assault. Id. at 481-82. On appeal, the court held that the record did not demonstrate a causal relationship between the defendant’s crimes and the requested restitution: “In this case, there was no evidence that any crime of which defendant was convicted, or which he admitted, resulted in [the victim’s] medical expenses. Defendant was convicted only of burglary and theft, and it is undisputed that those crimes were committed after [the victim] was assaulted. . .” Id. at 484.
Sigman supports the straight-forward principle that a defendant is not liable for damages caused by another. Here, the claimed injury may have been caused by many people, including the defendant, but it is still the state’s burden to show how this particular defendant harmed the victim. Thus, it should not be sufficient for the state to argue syllogistically that (1) this crime in general harms the victim, (2) the defendant has committed this crime, so (3) the defendant has harmed the victim. That reasoning overlooks the specific harm caused by ECSA, which is knowing that other people possess the photos and videos.
If that is the harm, then for the state to show a causal connection, the state should have to show, at the very least, that the victim knows of this particular defendant’s conduct and that knowing of the conduct harms the victim. That could take the form of evidence of when the victim learned of the defendant’s crime and how that knowledge harmed the victim. Without that evidence, the state can only demonstrate that people like the defendant have harmed the victim, but not that the defendant was a but-for cause of an identifiable injury to the victim.
II. Amount of damages
The statutory scheme for restitution and compensatory fines supports the argument that an award of damages – whether for restitution or a compensatory fine – must be tethered to the state’s proof of the amount of damages. Restitution is limited to “economic damages,” which are “objectively verifiable monetary losses.” A compensatory fine allows money to be paid to a “victim,” which is defined as someone who has “suffered economic damages,” ORS 137.103(4)(a), which, as noted above, are “objectively verifiable monetary losses.” In short, an award of damages should be limited to the extent that the amount is “verified” by the proof.
At this step of the analysis, there are a few arguments a defendant can make as to the amount of damages.
First, the defendant should only be liable for damages that occurred after he or she harmed the victim. Under Sigman, any damage done previous to the defendant’s crime was done by others, and therefore the court cannot impose restitution or a compensatory fine for those damages. This will require pinpointing when the defendant harmed the victim – was it when the defendant committed the crime or when the victim found out about the defendant’s crime? If the theory of liability is the same that the court described in Paroline, it makes sense that the earliest the defendant could have harmed the victim is when the victim found out about the defendant’s crime. In either case, the defendant should not be liable for any harm that was caused prior to that date.
Second, once the date of the harm is identified, the state should have to show the harm to the victim that is directly attributable to the defendant. That is, what portion of the victim’s damages were caused by the defendant? If the claimed harm takes the form of counseling costs, vocational training, lost income, and the like, then the state should have the burden to disaggregate that and show what portion of that was caused by the defendant. This argument can also tie in to the causation argument, in that the defendant can only be responsible for the harm of his or her particular crime. Under the framework articulated in this article, the state might not be able to meet its burden in most cases. However, when the state can establish that a victim is aware of the defendant’s ECSA conduct, a court will probably be more likely to impose damages like in Paroline.
