Monday, December 10, 2012

Back to My Little Grass Shack



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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