State v. Shepherd, — A.3d —, No. 2010-336, 2012 WL 5275420 (Vt. Oct. 26, 2012).
November 09, 2012
Defendant pled guilty to aggravated assault, lewd and lascivious conduct with a child, and sexual exploitation of a child, arising out of his sexual assault of a 10-year-old child-victim. Defendant appealed the trial court’s order that he pay restitution for the costs of relocating the child-victim’s family to Hawaii that were not covered by state victims’ compensation program funds. Defendant, who was the live-in nanny for the child-victim’s twin, sexually assaulted the child-victim over a period of several months. The child-victim and his family lived in a small, rural town, and after defendant was arrested, the child-victim’s identity became known both at school and in the community at large. The child-victim and his family were treated poorly by members of the community and were ostracized. After the child-victim began therapy, his therapist and his mother concluded that it would be necessary for the child-victim to move away from the community. The child-victim and his family moved to Hawaii, as family support was present in the area, and the state offered generous assistance to special-needs children, including the child-victim’s twin. On appeal, defendant argued that the relocation expenses ordered in restitution were not “costs caused directly by his crime” and that Hawaii was an unreasonable relocation destination. The court rejected defendant’s arguments and affirmed the restitution order, finding that a direct link between the crime and the relocation expenses was substantiated, as the child-victim’s “emotional injury and ostracization in a small town were the natural and probable consequences of the sexual assaults, thereby necessitating relocation.” Because of the severity of the crime and the assessment of the child-victim’s therapist, the court found that the requisite causal connection between the crime and the losses was established. With respect to the relocation destination, the court found it to be “of no moment” that the family selected Hawaii, as the “secondary decision of where to relocate necessarily took into account the unique needs of the family as a whole.” Responding to the dissent’s position that relocation expenses are not losses but are instead akin to pain and suffering, the court explained that emotional injury may result in “readily ascertainable costs” that are recoverable losses in restitution and observed that this is routinely the case where counseling expenses for emotional trauma are ordered in restitution.