State v. Shepherd,
2012
VT 91.
Today’s case involves restitution in a criminal matter that
divides the SCOV on the issue of what constitutes a material loss from a
crime. Due to the extreme nature of the
crime as well as the expansive, but logically connected remedy, this case has
the potential, as the Dissent warns, of opening a new era in expanded restitution
awards or, as the majority asserts, to simply be a legal cul de sac of little
value beyond its own fact-specific outcome.
Here are the facts.
Defendant was hired by victim’s family to take care of victim, a minor,
and his brother, who has autism and a kidney disorder that keeps him in constant
pain. Mom has fibromyalgia and was
unable to care for her sons. Defendant, exploiting
his situation, sexual abused and assaulted the victim numerous times over a
two-month period.
Following Defendant’s arrest and eventual guilty plea,
Victim and his family experienced an onslaught of unwanted attention. His identity as the victim leaked to the
public, and he and his family suffered alienation and isolation from friends,
the school community and the larger community.
As a publicly known victim of sexual abuse living in a small Vermont
town, victim was facing daily reminders that others now viewed him differently
in light of what he had suffered.
Hoping to help her son recover from his abuse, Mom made a
decision to move the family away from Vermont.
In looking for an alternate home, Mom had three requirements. She wanted them to be near family. She wanted to be in a state that offered good
medical coverage for her other son, and she needed it to be far enough away
that people would be unaware of the Defendant’s actions against her son.
In the end, the choice came down to two states. It is enough to say that one was Hawaii.
Following the family’s move, the victim sought restitution
from Defendant for the cost of the move, which amounted to $15,000. Defendant objected.
The trial court initially denied the request, but on a
motion for reconsideration, it granted the motion and ordered Defendant to pay
Victim restitution for the move.
Defendant appealed, and the SCOV affirms in a split decision.
For the majority, the issue is fairly straightforward. Restitution is available to any victim who
suffers a material loss as a result of a crime.
The only requirement is that the loss be directly related to the
crime. In this case, Defendant’s crime
cost victim and his family their reputations, relationships, and place in the community. The only remedy was to relocate. The fact that the only acceptable place to
move was an island paradise 2000 miles away is simply too bad for the Defendant
(who deserves little sympathy).
For the majority it is simple as pie. Defendant’s crime cost victim his home and
community, victim sought a new one, and Defendant is on the hook for the cost
of the transition.
Justice Skoglund, joined by Justice Burgess, sees things
differently. For the dissent, this
restitution award looks too much like a pain and suffering award that is
improper for restitution. To that end,
the Dissent challenges the majority’s assumptions.
The Dissent begins with the premise that the victim did not
suffer a material loss. The real loss
that the majority cites is an emotional one.
That is not sufficient, the Dissent argues under both statute and
precedent from prior SCOV decisions.
To prove this latter point, the Dissent discusses an early
case where the SCOV had affirmed the denial of a restitution claim for new
locks and additional security measures by a victim of domestic assault who
feared for her safety as a result of the crime.
In that case, the SCOV had held that even if the locks were necessary
for her mental health and confidence that were lost as a result of the attack,
they did not constitute a material loss.
Husband had not kicked in the door or compromised the lock system. The additional locks were just that:
additional measures that the victim chose to purchase to ameliorate her pain
and suffering.
In short, the Dissent states that today’s decision opens the
flood gates to all kinds of restitution claims stemming from actions victims
might take to address an emotional loss.
That pushes restitution into the realm of pain and suffering and goes
beyond the limited basis of the restitution statute.
The Majority counters that it is not affirming the award on
the basis of an emotional loss. The
crime directly disrupted the family’s life, and the moving expense was a
specific monetization of that loss.
While the Majority’s vote means that it carries the day on
the issue, the distinction it draws is a narrow one that may not be the more
persuasive position. Keep in mind that
restitution statutes were meant as quick and easy channels for victims to
recover what was lost. If a vase was
stolen, then restitution serves to compel repayment to the victim for the lost
vase. Restitution is not intended to
serve larger pain and suffering purposes.
That is why we have civil court. If a criminal causes pain and suffering, a
victim or her family can file an action against the criminal and obtain a money
judgment. In such cases, the parties
have a wider array of remedies. They
also have the procedure and process guaranteed by the courts to ensure that
victim and his family establish the basic elements of their claims and to
measure the damages off of the broader community standard that a jury brings to
the case.
By lumping such damages together or appearing to lump such
damages into restitution, the SCOV can be accused of short circuiting the civil
process and expanding the summary restitution process to consider claims that
it is not authorized to address.
In the meantime, no one, I suspect, sheds a tear for
Defendant or the burden put on him by this judgment. To the victim and his family, we can only
hope that Hawaii grants them peace, healing, and the environment to begin
rebuilding their lives. We hope that the
road to normalcy and happiness begins with their little grass shack.
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