court of appeals decision (3-judge, not recommended for publication); for Johnson: Philip J. Brehm; BiC; Resp.; Reply
Restitution – Psychiatric Care – Sexual Assault
Johnson, 17, had sex with 14-year-old W.M.K., resulting in conviction for 3rd degree sexual assault. Restitution ($10k), awarded for W.M.K.’s 10-month residence at Thayer Learning Center, (described as “a boot camp, behavior modification experience”) satisfied “substantial factor” test for causation:
¶7 WISCONSIN STAT. § 973.20(4m) authorizes the circuit court to provide restitution for violation of certain sexually motivated crimes, including WIS. STAT. § 940.225, in “an amount, not to exceed $10,000, equal to the cost of necessary professional services relating to psychiatric and psychological care and treatment.”
¶8 Before the court may award restitution, “‘there must be a showing that the defendant’s criminal activity was a substantial factor in causing’” the expenses for which restitution is claimed. State v. Johnson, 2005 WI App 201, ¶13, 287 Wis. 2d 381, 704 N.W.2d 625 (quoted source omitted).
¶13 In addressing whether W.M.K.’s need for care was a natural result of Johnson’s sexual assault, the circuit court correctly observed that the assault need only be a substantial factor, and not the only factor, in W.M.K.’s need for the services. See id. The court then reviewed the evidence in the record and found that the assault was a substantial factor. The court stated in its decision:
[C.D.’s] testimony was sufficient to prove that while she had the problems previously, as a result of this incident, she spent a month in the hospital. Her circumstances as far as her psychiatric condition got worse such that the psychiatrist thought there was not much more that could be done. The medications worked previously, but as I have indicated, not this time. So I don’t believe that that is a, well, doesn’t defeat the restitution. I believe that it was a substantial factor in producing the injury that W.M.K. had.
¶15 In this case, we cannot say that the court’s exercise of discretion was erroneous. It is clear upon our review of the record that the court applied the correct legal standard, set forth an adequate factual basis and in concluding that the sexual assault by Johnson “was a substantial factor in producing the injury that W.M.K had,” reached a conclusion that a reasonable decision maker could reach.
Don’t let the “substantial” in “substantial factor test” fool you. Causation requires precious little; might be more accurate to say, “insubstantial factor test.” E.g., State v. Oscar A. Rash, 2003 WI App 32 (Rash liable for damage to victim’s car, where Rash abducted victim for 20-30 minutes, during which time unknown actor(s) broke into the now-unattended car; not otherwise relevant to this case except to illustrate expansiveness of causation). This is probably due to the fact that “Wisconsin does not follow the majority view in Palsgraf v. Long Island Railroad Co., 248 NY 339, 162 N.E. 99, 99-101 (NY 1928), under which the existence of a duty of care depends upon whether injury to the particular victim was foreseeable.” Gritzner v. Michael R., 2000 WI 68, ¶20 n. 3. In other words, there’s very little maneuverability on a challenge to causation.
Preceding generalization aside, the interesting thing here is that the opinion reveals absolutely nothing, other than mere temporal connection, to support the idea Johnson’s sexual activity with W.M.K. caused a worsening of her problems, e.g., ¶5 (“C.D. testified that, following the assault, W.M.K.’s problems were much more severe than before the assault[.]”). It is undoubtedly true that a preexisting condition doesn’t immunize the defendant from liability for exacerbating that condition, State v. Behnke, 203 Wis. 2d 43, 59, 553 N.W.2d 265 (Ct. App. 1996). Nor, though, does a preexisting condition relieve the victim of proving causation, id.: “We acknowledge that it is the victim’s burden to prove cause. But she did that. … (I)f the defendant’s actions were the precipitating cause of the injury complained of, and such injury was the natural consequence of the actions, the defendant is liable, although the victim’s preexisting condition might have aggravated the injury. … The victim provided proof that she needed help from mental health professionals because of the attack.” That’s a big if, one the court here skips right over. W.M.K. proved that her condition worsened after having sex with Johnson: was it because of this activity? Or did the court fall prey to the “post hoc fallacy” (assault occurred; then condition worsened; therefore, assault must have causal connection to worsening). Remember that the burden (supposedly) is on the victim to prove damages, which includes causation. In this instance, the victim had available a wealth of medical evidence — she was treated at length before and after the offense; surely at least one medical expert could have testified that her condition worsened because of the offense. If one did, the opinion fails to mention it, so the assumption is that no such proof was offered. The question then becomes, why isn’t the absence of any proof of causation enough to defeat the claim?
Separately: the court declines to reach the issue of whether the Thayer Learning Center meets the condition of “professional services related to psychiatric and psychological care and treatment” required for restitution per § 973.20(4m), ¶¶16-21. Not much of a record, apparently, on the nature of the Thayer Center. Pity. If this is the self-same Thayer Learning Center, then it “is a boarding school that gives parents with disrespectful teens an opportunity to take control.” (Is Johnson paying 10k in restitution because his having sex with W.M.K. made her more disrespectful?) More on TLC, here, indicating that it “was a military based, Christian boarding school boot camp for troubled teens,” which closed in 2009. A military-based Christian boot camp? Would that fit within the “professional services” requirement noted above? A better record might have made it an interesting question.