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WDVA: Restitution doesn’t preclude civil damages

A victim already entitled to restitution via criminal proceedings could still seek civil damages for the defendant’s abusive sexual contact, though restitution would be offset by the amount awarded.


All that remains of this employment case is a single, state-law claim of assault and battery against incarcerated defendant Joshua Linkous. Plaintiff Carla Clehm previously alleged Title VII claims against defendant BAE Systems Ordnance Systems Inc., Linkous’s employer; these have been dismissed.

In related criminal proceedings, Linkous pled guilty to one count of aggravated sexual abuse in violation of 18 U.S.C. § 2241(a) and two counts of abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1). Restitution for these offenses is mandatory, and the court ordered Linkous to pay $38,315.32 in restitution to Clehm. At the time this judgment was entered, Clehm had filed the instant civil action. Linkous has moved to dismiss.

Civil damages

The existing restitution order does limit Linkous’s liability for civil damages in this action. The court takes judicial notice of the criminal judgment entered against Linkous, which specifically accounted for civil recovery by delaying payment of restitution until 60 days following resolution of this civil matter and offsetting the total restitution by any amount recovered by Clehm as compensatory damages.

Restitution is a criminal penalty meant to have deterrent and rehabilitative effects. This is consistent with the requirements of 18 U.S.C. § 3664(G)(2)(A), which provides that any amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim in any federal civil proceeding. Plainly, Congress contemplated these exact circumstances – where a victim of a crime who receives restitution later files a civil action – and put appropriate procedures in place to ensure the victim does not receive a double recovery for the same loss through both a restitution order and a civil judgment.

Linkous does not appear to contest liability on the merits, nor can he: Under § 3664, a conviction for an offense giving rise to restitution estops the defendant from denying the essential allegations of that offense in any subsequent federal or state civil proceeding. Thus, Linkous’s conviction for abusive sexual contact with Clehm, in violation of 18 U.S.C. § 2244(a)(1), estops him from denying liability as to assault and battery in this civil action.

As such, the court will enter judgment in Clehm’s favor, and this case will be set down for a jury trial as to damages only.

Clehm v. BAE Sys. Ordnance Sys. Inc., Case No. 7:16cv12, Apr. 6, 2018. WDVA at Roanoke (Urbanski). VLW No. 018-3-140, 5 pp.

VLW 018-3-140