Restitution (Part 2)
The public policy behind the adoption of §31-17-1 is two-fold: first, to make the crime victim whole to the extent possible; and second, to remind the defendant of his or her wrongdoing and require the defendant to repay the costs incurred by society as a result of the criminal misconduct. State v. Taylor, 104 N.M. 88, 96 (Ct. App. 1986). To that effect, §31-17-1(B) states that even where a sentence is suspended or deferred, the judge must require the defendant, as one of the conditions of probation, to make restitution to the victim for the actual damages caused by the crime for which the defendant was convicted.
However, for a judge to order restitution as part of a sentence for stalking or harassment, the victim must have in fact suffered some sort of actual damage. Under §31-17-1(A)(2), "actual damages" is defined as damages which a victim could recover against the defendant in a civil law cause of action arising out of the same facts or events that comprised the criminal case.
Given the definition of "actual damages," the most commonly seen actual damages in stalking and harassment cases would be from the effects of vandalism or destruction of the victim's personal property or real estate. Examples of such damages include vandalism of the victim's automobile, home, or personal belongings.
Section 31-17-1(A)(2) also provides that actual damages do not include damages for pain, suffering, mental anguish or loss of consortium. It also specifies that punitive damages, meaning a dollar figure the defendant is ordered to pay to the victim as a form of punishment for defendant's actions, are not actual damages.
If the harassment or stalking was such that the impacts were solely to the victim's peace of mind, rather than the condition of his or her physical property, then there may be no actual damages on which to base restitution. For example, the victim cannot seek, nor can a judge order, restitution which is based solely on the pain, suffering or anguish the victim mentally suffered as a result of stalking or harassment. If the stalking or harassment was such that either the victim or family members experienced changes in their personal affections, companionship and availability to each other, such "loss of consortium" is another form of damages for which restitution cannot be provided.
The language of §31-17-1 has been interpreted as "requiring a direct, causal relationship between the criminal activities of a defendant and the damages which the victim suffers." State v. Madril, 105 N.M. 396, 397 (Ct. App. 1987). Regarding the cause-and-effect relationship between the defendant's criminal actions and the actual damages suffered as a result by the victim, an adequate evidentiary basis must be presented, and simple speculation about such a connection is insufficient. Id. at 397-98. An example of such an evidentiary basis is the following: in a stalking prosecution, the victim testifies that her vehicle was damaged four times by the defendant in a certain time period; she provides photographs of the damaged vehicle and four separate receipts detailing repairs made both during and shortly after the specified time period.