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Publication Date

5-2018

Document Type

Casenote

Abstract

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, as a matter of first impression, upheld a restitution order under the Mandatory Restitution for Sexual Exploitation of Children Act (Mandatory Restitution Act) 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. 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.

This decision follows the trend of other circuit courts to include future therapy costs in mandatory restitution awards. 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. 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. When Congress enacted mandatory restitution, the intent was for defendants to fully contribute to the rehabilitation of their victims. 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. 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.

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