In U.S. v. Osman, the defendant appealed his restitution order following his guilty plea to one count of production of child pornography, one count of distribution of child pornography and one count of possession of child pornography. On six occasions Osman sexually abused an molested his approximately one-year-old daughter and used his cell phone to photograph his sexual abuse. He sent some of the child pornography images he had created to another individual in exchange for other child pornography images. When Department of Homeland Security executed a search warrant at Osman’s residence he admitted to using the internet to search or child pornography. A forensic examination of his electronic services revealed at least 94 movies and 588 images of child pornography that included his daughter.
After a grand jury indicted him with possession, production, and distribution of child pornography. As part of his plea he agreed to make full restitution to his daughter under the Mandatory Restitution for Sexual Exploitation of Children Act 18 U.S C. 2259.
At the restitution hearing Osman argued the government’s estimate of A.E.’s future counseling needs was speculative given her very young age. The government’s position was that any estimate of damages and further counseling needs would be speculative to some extend in a case involving an infant victim but nevertheless asserted restitution was appropriate. The government used a licensed counselor who specialized with child victims of sexual abuse and testified about her experience involving victims of child sexual abuse and working with children at various developmental stages. She acknowledged her estimate about A.E.’s future need would be based on prediction about the care she would likely need and was in some sense speculative but her opinion was based on many years of research about the consequences of early adverse life events and her extensive experience counseling victims of abuse.
The expert identified four different age appropriate stages. The first is the Eye Movement Desensitization and Reprocessing that would be used before she would be old enough to recall the events in a narrative form. The next state of therapy would be needed when she reached about second grade when she would be aware of her father’s absence from the family wondering why he was not there. She would require a third course of therapy in adolescence when reaching puberty and develops a greater understanding of sexual relationships and the nature of what had happened to her. The therapy needed could last from 9 months to one year. Finally she would need at least one more course of therapy when she is in the process of selectin a life partner or is on the verge of becoming a parent.
Defendant Osman claimed that restitution was proper only to the extend the defendant proximately cause of the victim’s losses and no losses had been shown in this case. He also argued it would be a violation of due process to award restitution based solely on speculative information plus a process would be available in the future to seek restitution.
The Eleventh Circuit court of appeals found the trial court did not err in concluding A.E. suffered loss and upheld the Florida federal criminal restitution award of restitution for future counseling costs based on the therapist’s opinions and experience. The court rejected the Florida criminal attorney’s argument that she would have to seek additional restitution in the future because a reasonable estimate of future therapy is ascertainable now. The expert established the victim already suffered and would continue to suffer.