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Cutting work hours for fear of in-home day care supports restitution

State v. Frank E. Pilarski, 2015AP425, District 2, 12/23/15 (not recommended for publication); case activity (including briefs)

Pilarski sexually assaulted a child in his in-home day care; the court of appeals upholds a restitution award for the child’s mother’s reduced work hours necessitated by her unwillingness to use any other in-home day care after the assaults.

At the restitution hearing the mother testified that, after the assault, she would only consider sending her child to a day care center, but that such centers kept hours that would not permit her to perform her job as a surgical nurse. (¶3). She therefore began working part-time and arranged to share child-care duties with another mother. The trial court determined that Pilarski should be responsible for her reduction in wages up to the time of sentencing, but not for any loss after sentencing. (¶4).

On appeal, Pilarski argues that the mother’s decision not to use another in-home day care, based upon her own preferences and perception that such day cares posed a risk, is an intervening cause attenuating the connection between his crime and her reduced wages. (¶5). Noting that the restitution statute is liberally construed to make crime victims whole, the court disagrees:

Pilarski’s criminal act of sexually assaulting K.A. while she was in his care at his private, in-home child care center set in motion A.A.’s search for alternative child care. See Hoseman, 334 Wis. 2d 415, ¶26. Pilarski’s criminal actions precipitated A.A.’s reduction in hours to accommodate her need for new child care arrangements, which were a consequence of Pilarski’s actions. See Behnke, 203 Wis. 2d at 59. A.A.’s reduction in pay was an ascertainable, actual pecuniary loss she suffered as a result of Pilarski’s crime. See Holmgren, 229 Wis. 2d at 365. The court did not err in finding that Pilarski’s criminal act was a substantial factor that caused A.A.’s wage losses due to the reduction in her work schedule, and it appropriately exercised its discretion in limiting the amount that A.A. could recover for lost wages to the amount requested at the time of the restitution hearing. See Longmire, 272 Wis. 2d 759, ¶16 (we review the amount of restitution awarded, as opposed to whether restitution is authorized by statute, for an erroneous exercise of discretion).

(¶10).

The circuit court’s order certainly looks like an attempt at rough justice; besides limiting the restitution for lost wages to the period before sentencing, it also seemed to base its decision on the fact that Pilarski was not, at least at the time of the hearing, on the hook for any sort of psychiatric care for his victim. Pilarski argued that this was an improper consideration that did not justify making him responsible for other costs like the lost wages. The court of appeals does not address this argument–perhaps it concluded that the decision fell within the broad range of discretionary options available to a trial court.

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