BENCH BLOG: No restitution for mother of child-porn victim

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In a case that lies at the intersection of child-pornography law and restitution law, the Court of Appeals concluded that the mother of a victim of child pornography could not obtain restitution from an offender.

David Tarlo had five pornographic photos of children on his computer. One of them was alleged to be an image of the mother’s daughter. Her husband, the girl’s father, had previously been convicted and incarcerated for having produced this and other child pornographic images.

Tarlo, as a possessor and viewer of the lewd image of the daughter, was convicted of one count of possession of child pornography, and four other charges were read in at his sentencing.

Because Tarlo had viewed the image, the girl’s mother sought to have him pay $60,000 in restitution.

The amount of restitution the mother requested was premised on the income support she had lost from her husband because of his incarceration, as well as her loss of income from having “to quit her jobs to supervise her children and transport them to their treatment sessions.”

The circuit court commissioner who presided over the restitution hearing recommended an amount of $10,000. His rationale was that Tarlo was only one of six people caught possessing the image of the daughter, so the commissioner divided the claimed restitution by six.

Walworth County Circuit Judge David Reddy subsequently adopted this recommendation as his own. Tarlo appealed the restitution order.

Court of Appeals

A unanimous decision attributed to Judge Mark Gundrum was issued by the District 2 Court of Appeals.

The lynchpin of the court’s decision was the legal requirement of a causal nexus between the defendant’s criminal conduct and the damage for which restitution was sought.

“While we are to construe the restitution statute broadly and liberally to allow victims to recover their losses, those losses must still be shown to be as a result of the defendant’s criminal conduct.”

Here, “the income was lost due to the husband’s earlier production of child pornography and related arrest and incarceration.” There was no evidence from which the court could reasonably infer that Tarlo’s possessing and viewing the daughter’s image caused any of the mother’s lost income.

The mother testified that her daughter is revictimized each time someone views her image, and the mother feels revictimized each time she is notified that someone has viewed the image.

The court responded, “The mother’s and daughter’s revictimization cannot be doubted.” But there still must be a causal connection between the claim for lost income and the viewing and possession of the daughter’s image.

Paroline v. U.S.

The state supported the mother’s claim for restitution and relied on Paroline v. United States. There, an uncle sexually abused his niece in order to produce pornographic images of her when she was 8 or 9 years old. The girl successfully participated in therapy.

But when she was 17 years old, she discovered that “images of her abuse were being trafficked on the Internet.” The possessors of her images “easily numbered in the thousands.”

One such individual, Paroline, had two images of her among the 150 to 300 images of child pornography he possessed and for which he was convicted. The victim sought restitution from him for her lost income and future counseling expenses.

In reviewing the matter, the U.S. Supreme Court ruled that the “ultimate question” in determining the amount of restitution “is how much of these losses were the proximate result of that individual’s offense.”

The Supreme Court recognized the “special context” of child pornography in allowing a victim to obtain restitution from a possessor of her image — even if none of her losses “flowed from any specific knowledge” about the possessor or his criminal conduct — as long as her losses resulted from the trafficking of the image in general.

In Paroline, the victim’s counseling costs and lost income resulted from her renewed trauma when she learned that her image was being viewed on the Internet by people such as Paroline.

By contrast, in Tarlo’s case, none of the restitution the mother claimed resulted from Tarlo’s criminal conduct. Rather, the lost income resulted from the girl’s father’s criminal conduct in producing the pornographic image and being incarcerated for it.

In other words, all of the losses stemmed from the initial production of the image, not its viewing and possession by Tarlo, even if the father could foresee that in the future people like Tarlo would view it.

Because restitution must be based on evidence of a loss that was “a result of a crime considered at sentencing,” the Court of Appeals concluded that no restitution could be assessed against Tarlo for the mother’s lost income.

Commentary

The opinion is a bit muddled and therefore a reader must slog through it. It is atypical of the usually clear and concise opinions written by District 2 judges.

But the decision is a correct one. The mother did not produce any evidence that her loss of income was related to Tarlo’s viewing and possession of her husband’s pornographic image of their daughter.

Although similar in some ways to the Paroline case, it was nonetheless distinguishable. It turned on the fact that Paroline’s victim suffered a “major blow to her recovery” upon discovering her image was trafficked across the Internet, and as a result, re-entered therapy and lost income.

In contrast, the lost income suffered here by the mother was the result of her husband’s incarceration for having produced the pornography.

It’s not that the mother and daughter were not revictimized here by Tarlo’s conduct; it is the fact that the restitution claimed was not connected to Tarlo’s criminal conduct but rather that of the father.