This post examines an opinion from the Court of Appeals of Wisconsin: State v. Tarlo, 2016 WL 5794352 (2016). The court begins the opinion
by explaining that
David Tarlo challenges the circuit
court's award of restitution to the mother of a victim of child pornography. He
argues the court erred in concluding the mother met her burden of proving the claimed loss was the result of his criminal conduct. . . .
State v. Tarlo, supra.
The opinion goes on to explain that Tarlo was
charged with five counts of
possession of child pornography in relation to five images found on his computer. According to the criminal complaint, a Wisconsin Department of
Justice analyst concluded most of the images were viewed in November and
December 2009 and March 2011. Tarlo pled guilty to one of the counts with the other counts being dismissed but
read in at sentencing.
The mother of a child alleged to be in one of
the images on Tarlo's computer sought $60,000 in
restitution from Tarlo for lost income. She claimed at the restitution hearing
before a court commissioner in this case that she was deprived of that amount
in income support due to her husband's earlier arrest and ultimate
incarceration for producing child pornography, including pornographic images of
her daughter. The mother provided testimony from which the court commissioner
concluded that one of the images possessed by Tarlo was an image of the
daughter that was produced by her husband. The State argued that the
restitution request was appropriate because Tarlo had viewed and possessed the
image.
The court commissioner ultimately recommended
Tarlo pay restitution of $10,000. It reached this amount by dividing the
$60,000 requested by six, which is the total number of people that the mother
testified had been caught possessing a pornographic image of the daughter. The
circuit court subsequently adopted this recommendation as its own. Tarlo moved
for reconsideration, which was denied. He appeals.
State v. Tarlo, supra.
The opinion goes on to explain that
Tarlo argues the circuit court
erroneously exercised its discretion in ordering him to pay $10,000 because `the
family's lost income is not related to [his] possession’ of the daughter's
image. He asserts the mother failed to meet her burden of demonstrating that
the lost income support she sustained was a result of Tarlo's crime of viewing
and possessing her daughter's image. Based upon the evidence presented at
the restitution hearing, we must agree.
At a restitution hearing, `[t]he burden
of demonstrating by the preponderance of the evidence the amount of loss
sustained by a victim as a result of a crime considered at sentencing is
on the victim.’ Wisconsin Statutes § 973.20(14)(a) (2013–14) (emphasis added). As Tarlo points out, `[b]efore
restitution can be ordered' . . . there must be “a causal nexus” between the
“crime considered at sentencing” and the damage.’ State v. Rash, 2003
WI App 32, ¶ 6, 260 Wis.2d 369, 659 N.W.2d 189 (Wisconsin Court of Appeals 2003) (citation omitted).
`In proving causation, a victim must
show that the defendant's criminal activity was a “substantial factor” in
causing damage. The defendant's actions must be the “precipitating cause of the
injury” and the harm must have resulted from “the natural consequence[s] of the
actions.”’ Id.(alteration in original; citation omitted). `Circuit
courts have discretion . . . in determining whether the defendant's criminal
activity was a substantial factor in causing any expenses for which restitution
is claimed.’ State v. Johnson, 2002 WI App 166, ¶ 7, 256
Wis.2d 871, 649 N.W.2d 284 (Wisconsin Court of Appeals 2002) (citing State
v. Canady, 2000 WI App 87, ¶¶ 6, 12, 234 Wis.2d 261, 610 N.W.2d 147).
A discretionary decision `should only be disturbed when there has been an
erroneous exercise of that discretion.’ State v. Madlock, 230
Wis.2d 324, 329, 602 N.W.2d 104 (Wisconsin Court of Appeals 1999). A court erroneously exercises
its discretion if it exercises its discretion `under an erroneous view of the
law,’ id., or fails to `logically interpret[ ] the facts.’ State v. Johnson, supra.
State v. Tarlo, supra.
The opinion goes on to explain that
[w]hile we are to `construe the restitution
statute broadly and liberally in order to allow victims to recover their
losses,’ those losses must still be shown to be `as a result of a
defendant's criminal conduct.’ State v. Longmire, 2004 WI
App 90, ¶ 11, 272 Wis.2d 759, 681 N.W.2d 534 (Wisconsin Court of Appeals 2004) (citation
omitted). It is a `bedrock principle’ that restitution should reflect, and a
defendant should be made liable for, `the consequences of the defendant's own
conduct,’ `not the conduct of others.’ Paroline v. United States, 134S.Ct. 1710 (2014).
State v. Tarlo, supra.
The Court of Appeals then began its analysis of the issue in
this case, noting, initially, that
[h]ere, the evidence presented at the
restitution hearing establishes only financial losses incurred as a result of
the earlier conduct of the mother's husband in producing the child pornography;
it does not establish that any of the losses resulted from Tarlo's criminal
conduct, or even general trafficking of the daughter's image over the Internet.
The mother presented evidence that she incurred the $60,000 of lost income
support as a result of her husband's arrest and incarceration for his
production of child pornography. Of that amount, approximately $45,000 was lost
due to her husband's lost employment and $15,000 was lost due to her own lost
employment because, as the court commissioner found, the mother `needed to quit
her jobs to supervise her children and transport them to their treatment sessions.’
The court commissioner noted, `In reality, this amount could be much higher,
but the victims are only seeking $60,000.’ The amount could have been much
higher because, according to the mother's testimony, $60,000 was the amount of
loss incurred `every year’ since 2010, when it was discovered her husband
produced the child pornography.
According to the complaint, most of the images of child pornography on
Tarlo's computer were viewed in November and December 2009 and in March 2011.
The mother indicated at the restitution hearing, and the record otherwise
supports, that she first learned of the viewing and possession of her
daughter's image—by Tarlo and five other individuals—at some point in
approximately the year leading up to the June 2, 2014 restitution hearing.
However, even if the court had awarded
the mother the $10,000 it did in relation to lost income for that year
immediately preceding the restitution hearing, the evidence nonetheless still
failed to establish a `causal nexus’ between the lost income and the viewing
and possession of the image. The evidence established that the income was lost
due to the husband's earlier production of child pornography and related arrest
and incarceration; no evidence was presented from which the court could
reasonably infer that the viewing and possession of the daughter's image by
Tarlo or others caused any of the income loss for which the mother sought
restitution. See Wisconsin Statutes § 973.20(14)(a).
State v. Tarlo, supra.
The opinion then explains that
mother also testified she and her
children had participated in individual counseling as a result of her husband's
production of the child pornography; but she made no request for restitution
related to any counseling, provided no testimony or other evidence of any
counseling costs, and indicated that the counseling was provided at no cost to
her through `crime victim assistance’ in relation to her husband's crime. When
asked by the court commissioner if she anticipated any future expenses related
to Tarlo's crime, such as `other expenses for treatment or therapy that you think
is not going to be covered,’ she could only indicate that `[t]here could be’
other expenses, but provided no suggested financial costs, past or present,
upon which any treatment-related restitution award could be based.
The mother did testify her daughter is
revictimized every time an individual views her image and she (the mother)
feels revictimized every time she is notified of an individual viewing the
image. The mother's and daughter's revictimization cannot be doubted. See
Paroline v. United States, supra, (`[E]very viewing of child pornography is
a repetition of the victim's abuse’). That said, evidence still needed to be
presented from which the circuit court could conclude that financial losses
claimed by the mother resulted from the viewing and possession of her
daughter's image—and not just the earlier criminal conduct of her husband. No
such evidence was presented at the restitution hearing.
State v. Tarlo, supra.
The court went on to explain that
[w]ith virtually no analysis or
analogizing of the case to this one, the State provides large block quotes
from Paroline to support its assertion that `[f]ederal case
law supports the concept of holding consumers of child pornography liable for
restitution to victims even though the pornography is created elsewhere and
long ago.’ While that assertion is generally correct, Paroline does
not aid the State here.
The uncle of the victim in Paroline sexually
abused the victim when she was eight and nine years old in order to produce
child pornography. Paroline v. United States, supra. He was
convicted of the offense and required to pay $6000 in restitution. Id. The
victim participated in therapy in 1998 and 1999 until the therapist determined
she was `back to normal.’ Id. The victim suffered `a major
blow to her recovery,’ however, when she learned at age seventeen `that images
of her abuse were being trafficked on the Internet.’ Id. The
possessors of her images `easily number[ed] in the thousands,’ and the knowledge
that her images `were circulated far and wide’ renewed her trauma and `made it
difficult for her to recover from her abuse.’ Id.
State v. Tarlo, supra.
The opinion continued outlining the analysis that applied
here, explaining that
Paroline later was convicted in
relation to possessing between 150 and 300 images of child pornography,
including two which depicted the victim. Id. at 1717–18. The
victim sought restitution under 18 U.S. Code § 2259 (1996) in the
amount of nearly $3 million in lost income and $500,000 in future treatment and
counseling expenses. Paroline v. United States, supra. The district
court declined to award restitution, holding that the government failed to
establish losses proximately caused by Paroline's crime. Id. On
appeal, the Supreme Court struggled with the question of causation and how
courts could properly award restitution in cases where `a particular defendant
. . . is one of thousands who have possessed and will in the future possess the
victim's images.’ Paroline v. United States, supra. The Court
continued, `In determining the amount of general losses a defendant must pay
under § 2259 the ultimate question is how much of these losses were
the “proximate result,” § 2259(b)(3)(F), of that individual's offense.’ Paroline
v. United States, supra. The Court discussed factors federal district
courts should consider, as`“rough guideposts,’ in determining an appropriate
amount of restitution, and it remanded the matter back to the district
court. Paroline v. United States, supra.
Ultimately, under the federal statute
at issue in that case, Paroline allows a victim in the
`special context’ of child pornography to recover restitution from a possessor
of the pornographic image even though `none of [the victim's] claimed losses
flowed from any specific knowledge about [the possessor] or his offense conduct,’
so long as the victim's losses are shown to have been the result of trafficking
in the image in general. Paroline v. United States, supra. In Paroline, `the victim's
costs of treatment and lost income result[ed] from the trauma of knowing that
images of her abuse [were] being viewed over and over,’ Paroline v. United
States, supra, and the evidence discussed by the Court indicates the
restitution sought by the victim related to the `major blow to her recovery’
which occurred when she learned at age seventeen that her image was being
viewed on the Internet, by individuals such as Paroline. Paroline v. United
States, supra. By contrast, in the case before us, there simply was no
evidence presented of income lost or treatment costs incurred, or of income
that will be lost or costs that will be incurred, as a result of Tarlo or
others viewing and possessing the daughter's image.
State v. Tarlo, supra.
The court also pointed out that
[s]ignificantly, the Paroline Court
noted that a victim's `losses sustained as a result of the initial physical
abuse’ are to be `disaggregat [ed]’ from `aggregate losses, including the costs
of psychiatric treatment and lost income, that stem from the ongoing traffic in
her images as a whole.’ Paroline v. United States, supra. Again,
here the mother testified only as to the loss of income resulting from her
husband's initial abuse of her children, including her daughter, and provided
no testimony of losses `stem[ming] from’ Tarlo or others viewing and possessing
her daughter's image. Her testimony only supports the conclusion that she would
have incurred all the financial losses to which she testified at the
restitution hearing even if no one had ever viewed or possessed an image of her
daughter via computer.
State v. Tarlo, supra.
The court then explained that,
[n]evertheless, the State argues that
Tarlo's conduct was a substantial factor in the loss of both the mother's and
her husband's income. According to the State, this causal nexus was established
because
`Tarlo's role as a consumer [of the
child pornography] retrospectively encouraged the creation and
distribution of the victim's sexually explicit images by [the mother's] husband
who believed there would be consumers like Tarlo out there, so he created the
images and put them on the internet for those consumers to enjoy. (Emphasis
added.)’
The court commissioner, and by adoption
the circuit court, rested its decision on similar reasoning, which we find
flawed. It may be that when he produced the child pornography, the husband
believed, based on his prior Internet experience, that the
images eventually would be circulated on the Internet and viewed by other
persons. It may also be that this belief contributed to his decision to produce
the child pornography, which production resulted in his arrest, imprisonment,
and loss of employment. It cannot be said, however, that Tarlo's actions, which
occurred after the husband produced the pornography, caused
the husband to produce it. Indeed, there is no evidence whatsoever to
suggest the husband would not have produced the pornography if Tarlo or the
others had not subsequently viewed and possessed it.
State v. Tarlo, supra (emphasis
in the original).
The court then articulated its holding in the case,
explaining that the
restitution statute places on the
victim the burden of proving that any losses sustained were “a result of a
crime considered at sentencing.” Wis. Stat. § 973.20(14)(a). A
`result’ of a crime follows from the commission of the crime; the result does
not precede the crime. See Result, BLACK'S LAW
DICTIONARY (10th ed.2014) (defining `result’ as `[a] consequence, effect,
or conclusion,’ `[t]hat which is achieved, brought about, or obtained, esp. by
purposeful action,’ and `t]o be a physical, logical, or legal consequence; to
proceed as an outcome or conclusion’); Result, WEBSTER'S THIRD
NEW INTERNATIONAL DICTIONARY (1993) (defining `result’ as `to proceed,
spring, or arise as a consequence, effect, or conclusion’); see
also Paroline v. United States, supra (`[T]o say one event proximately
caused another . . . means the former event
caused the latter.
(emphasis added)).
Child pornography is a scourge upon
children, families, and our nation. Nevertheless, courts still must make
decisions based upon evidence presented. In this case, the mother failed to
meet her burden of proving she incurred any losses as a result of Tarlo's
conduct; she only presented evidence she incurred losses as a result of her
husband's conduct of producing the child pornography. Accordingly, the
restitution order was in error, and we remand this matter to the circuit court
to enter an amended judgment of conviction vacating the restitution award.
State v. Tarlo, supra (emphasis
in the original).
If you would like to read the Supreme Court's opinion in Paroline, you can find it here.
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