United States v. Osman: Including Future Therapy Costs in Mandatory Restitution Awards Is the Growing Trend Among Circuits, but Is it Wise?
| Publication year | 2018 |
United States v. Osman: Including Future Therapy Costs In Mandatory Restitution Awards Is The Growing Trend Among Circuits, but Is It Wise?
Mary Theresa Mahfoud
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Mandatory restitution awards for child victims of sex crimes and child pornography now include future therapy costs. This trend, while theoretically increasing the amount of restitution awarded to the victim, can have unintended harmful consequences. The United States Court of Appeals for the Eleventh Circuit in United States v. Osman,1 as a matter of first impression, upheld a restitution order under the Mandatory Restitution for Sexual Exploitation of Children Act (Mandatory Restitution Act)2 to include future therapy expenses.
William Edward Osman pleaded guilty in the United States District Court for the Middle District of Florida to the possession, production, and distribution of child pornography of his infant daughter.3 As a part of his plea deal, Osman agreed to pay restitution under the Mandatory Restitution Act, which included future therapy costs for his daughter.4
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Osman appealed the restitution amount, saying that the awarded amount was too speculative due to the young age of his daughter. However, the Eleventh Circuit affirmed the restitution award, holding that future therapy was not too speculative, but a given, considering the severity of the crime.5
This decision follows the trend of other circuit courts to include future therapy costs in mandatory restitution awards.6 In previous versions of the restitution statute, Congress gave sentencing courts the discretion to award restitution by factoring both the victim's losses and the defendant's financial situation when determining a restitution amount.7 In the current version of the statute, however, restitution is mandatory and covers all of the victim's losses if the victim can show that the defendant's actions proximately caused the victim's losses.8 When Congress enacted mandatory restitution, the intent was for defendants to fully contribute to the rehabilitation of their victims.9 But ordering restitution without regard to the economic situation of the defendant can have unintended negative consequences. Restitution awards that do not consider the economic situation of the defendant can lead to awards a defendant will not be able to pay, potentially leaving the victim unable to recover for any losses.10 This raises the question about whether mandatory restitution awards including future therapy costs will end up doing more harm than good for both victims, who may not receive the full amount of their award, and defendants, who may suffer consequences due to the inability to pay a high restitution award.
William Edward Osman pleaded guilty to production of child pornography, distribution of child pornography, and possession of child pornography.11 Between December 2012 and September 2013, Osman
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sexually abused his one-year-old daughter, A.E. In September 2013, Osman sent images of his daughter to another person, M.G., who, in return, gave child pornography images of his three-year-old daughter to Osman.12 In October 2013, an agent from the Department of Homeland Security searched his residence and found over 194 movies and 588 pictures of child pornography, including images of A.E. and M.G.'s daughter.13
A grand jury charged Osman with nine counts related to child pornography, including the production, distribution, and reception of child pornography. Osman pleaded guilty to three of the charges and agreed to make full restitution to his daughter under the Mandatory Restitution Act.14
At the restitution hearing, the government presented evidence of A.E.'s future need of counseling by calling Sharilyn Rowland Petrie, a counselor who specialized in work with child victims of sexual abuse, to testify about A.E.'s future expected therapy costs.15 Petrie testified that there were four times in the victim's life that she would need therapy due to the repercussions of this crime.16 First, as a baby, A.E. would need Eye Movement Desensitization and Reprocessing, a type of therapy aimed at young victims of childhood sexual traumas.17 Second, A.E. would need therapy around seven or eight years of age, when A.E. would recognize the difference in her family structure—that is, her missing father—and start asking questions.18 Third, A.E. would need therapy during her
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teenage years when she grows into sexual maturity and learns the nature of what happened to her.19 Finally, A.E would need a round of therapy when she would be either choosing a life partner or considering having children of her own.20 Petrie testified that she based her prediction on years of research into the consequences resulting from early traumatic life events.21 Osman, however, argued that her testimony was too speculative, especially given the young age of his daughter. The district court awarded $16,250 in restitution fees, and Osman appealed.22
The Eleventh Circuit affirmed the lower court's decision, stating that the district court properly included the future therapy cost in its restitution award and noted, as a matter of first impression, that restitution under the Mandatory Restitution Act may include restitution for the cost of future therapy.23
Criminal restitution is a common law remedy that aims for defendants to atone and make their victims whole.24 Federal courts do not have the inherent authority to award restitution.25 However, Congress can give courts authority to award restitution through enacting statutes.26
In 1982, Congress enacted the Victim and Witness Protection Act (VWPA)27 to allow restitution awards to victims of serious crimes that fell under Title 18 of the United States Code.28 Under the VWPA, courts
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had the discretion to award restitution and take into consideration the amount of the victim's loss resulting from the offense and the financial resources and earning ability of the defendant.29
In that same year, the Supreme Court of the United States decided New York v. Ferber,30 which involved a New York statute prohibiting a person from knowingly promoting or distributing a sexual performance of a child under sixteen years old.31 In Ferber, the Court recognized that child pornography was a national problem and that expression of child pornography was not protected speech under the First Amendment of the United States Constitution.32 The Court further determined that states had a compelling interest in safeguarding the physical and psychological health of a minor.33 Justice White delivered the Court's opinion in Ferber, which was highly influential in subsequent cases involving the sexual exploitation of a child.34
B. The Mandatory Restitution for Exploitation of Children Act of 1994
In 1994, Congress enacted the Mandatory Restitution Act, which made awards of restitution mandatory for victims of crimes involving the sexual exploitation of children.35 Congress included this section as a part of the Violence Against Women Act of 1994,36 intending to require federal criminal defendants to pay full restitution to the victims of their crimes.37 The Mandatory Restitution Act took away the courts' discretion in awarding restitution and required courts to impose restitution to victims of violent crimes.38 The Mandatory Restitution Act, unlike the VWPA, does not take the defendant's financial situation into account.39 But like the VWPA, the government bears the burden of proof regarding the losses a child sustains due to being sexually exploited, and the government must meet its burden of proof by a preponderance of the evidence.40 This shift from discretionary restitution awards to mandatory
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restitution awards signaled a shift in the theory of punishment and the purpose of awarding restitution.41 Discretionary restitution considers the financial circumstances of the defendant and is more punitive, while mandatory restitution is more victim-focused as it aims to make the victim whole again regardless of the financial circumstances of the defendant.42
The Mandatory Restitution Act states that the defendant shall pay restitution to the victim for the full amount of the victim's losses.43 Before district courts can award restitution under the Mandatory Restitution Act, they must determine three issues. The first is whether the victim of the crime is considered a victim under the statute.44 The second is to define the meaning of awarding the "full amount of the victim's loss" and whether the Mandatory Restitution Act encompasses all the victim's losses.45 The third is to define "losses suffered by the victim as a proximate result of the offense."46
The first question is who is a victim under the Mandatory Restitution Act. Restitution under the Mandatory Restitution Act can only be awarded to a victim.47 The statute defines victim as:
[T]he individual harmed as a result of a commission of a crime under this [statute], including, in the case of a victim who is under [eighteen] years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or representative of the victim's estate, another family member, or any other person appointed as suitable by the court.48
In Ferber, the Supreme Court of the United States determined that the making and distribution of pictures and films depicting sexual activity by juveniles "intrinsically related to the sexual abuse of children" and that the "materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their
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circulation."49 This means that the Mandatory Restitution Act considers a child who is involved in child pornography a victim...
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