Oct. 6, 2016 – A state appeals court has ruled that the mother of a child pornography victim cannot receive restitution from a defendant despite the mother’s argument that he caused her family financial losses by viewing illegal images of her daughter on the internet.

The mother sought $60,000 in restitution from David Tarlo, who pled guilty to possessing child pornography, including an image of the mother’s child.

The mother noted that the images were previously produced and disseminated on the internet by her husband, convicted and jailed for this crime. Tarlo obtained and viewed the image via the internet, as did five other people that the mother knew about.

Restitution was appropriate, the mother argued, because she lost income support due to her husband’s incarceration, and Tarlo contributed to the lost income by possessing an image that her husband produced. The state argued that restitution was appropriate.

Ultimately, the Walworth County Circuit Court agreed that Tarlo should pay restitution, but limited the restitution amount to $10,000. The court divided the $60,000 claim by six, the number of people caught possessing images of the mother’s daughter.

But in State v. Tarlo, 2015AP1502-CR (Oct. 5, 2016), a three-judge panel for the District II Court of Appeals reversed on the restitution issue, concluding the mother did not meet her burden to prove the lost income was the result of Tarlo’s criminal conduct.

The panel noted that victims must prove a “causal nexus” between the defendant’s crime and the victim’s losses before the court can order the payment of restitution. That is, the defendant’s crime must be a “substantial factor” in causing the financial damage.

“The evidence established that the income was lost due to the husband’s earlier production of child pornography and related arrest and incarceration,” wrote Judge Mark Gundrum for the three-judge panel.

“[N]o evidence was presented from which the court could reasonably infer that the viewing and possession of the daughter’s image by Tarlo or others caused any of the income loss for which the mother sought restitution.”

Restitution and Paroline

The panel rejected the state’s argument, largely based on the U.S. Supreme Court’s decision in Paroline v. United States, 134 S. Ct. 1710 (2014), which involved a victim of sexual abuse and child pornography who sought more than $3 million in restitution.

In that case, the U.S. Supreme Court noted that “[f]ederal case law supports the concept of holding consumers of child pornography liable for restitution to victims even though the pornography is created elsewhere and long ago.”

The Paroline Court held that federal law allows child pornography victims to recover restitution from those who possess the victim’s image if the victim shows direct damage that results from trafficking of the image, such as trauma that causes financial loss.

The victim in Paroline learned, at age 17 and after years of receiving counseling that improved her well-being, that images of the sexual abuse had been trafficked on the internet, renewing trauma that required treatment and impacted her ability to work. She sought restitution from those people known to have accessed and viewed the image.

But in this case, Judge Gundrum noted, “there simply was no evidence presented of income lost or treatment costs incurred, or of income that will be lost or costs that will be incurred, as a result of Tarlo or others viewing and possessing the daughter’s image.”

The state argued that Tarlo played a substantial role in causing financial losses to the victim’s mother because the husband disseminated images to satisfy consumers like Tarlo, who collectively encourage dissemination of sexually explicit images. But the three-judge panel found flaws in this argument, rejecting it as a basis for restitution.

“It may be that when he produced the child pornography, the husband believed, based on his prior Internet experience, that the images eventually would be circulated on the Internet and viewed by other persons,” Judge Gundrum wrote.

“It cannot be said, however, that Tarlo’s actions, which occurred after the husband produced the pornography, caused the husband to produce it.”

Judge Gundrum noted that child pornography is a “scourge upon children, families, and our nation.” But he also noted that courts must make decisions based on evidence, and the mother here did not show that Tarlo’s crime caused the financial losses alleged.

Finally, the state requested that the panel order a new restitution hearing. But the panel refused to do so, noting the mother received a full and fair hearing and redoing it may implicate Tarlo’s rights against double-jeopardy, which apply to restitution hearings.