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    Trouble Ahead: Wisconsin's New Domestic Abuse Laws

    The budget repair bill included provisions that expand the coverage of restraining orders to include individuals who are in "dating relationships" and create a new evidentiary privilege that covers communications between domestic abuse victims and victim advocates and the victims' family members. These significant changes to Wisconsin's civil and criminal laws on domestic abuse pose challenges to practitioners and courts alike.

    John Birdsall

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    Wisconsin Lawyer
    Vol. 77, No. 2, February 2004

    Trouble Ahead: Wisconsin's New Domestic Abuse Laws

    The budget repair bill included provisions that expand the coverage of restraining orders to include individuals who are in "dating relationships" and create a new evidentiary privilege that covers communications between domestic abuse victims and victim advocates and the victims' family members. These significant changes to Wisconsin's civil and criminal laws on domestic abuse pose challenges to practitioners and courts alike.

    eyeby John A. Birdsall

    wo scarcely noticed provisions of the budget repair bill produced significant changes to the civil and criminal law dealing with domestic abuse.1 2001 Wis. Act 109 greatly expanded the coverage of restraining orders under section 813.12 of the Wisconsin Statutes by including persons who are in dating relationships.2 Act 109 also created a new evidentiary privilege that covers any communications by domestic abuse victims to victim advocates and victims' family members.3 These provisions present challenges to practitioners and courts alike because they involve uncharted legal territory.

    Dating Relationship

    Your client has been dating someone new for about a month. The new couple has their first real argument, and your client is accused of threatening to harm the other person's property. Can your client's dating partner obtain a domestic abuse injunction?

    The answer is, yes.

    Practice Points

    Criminal defense and family law attorneys in particular need to know about the provisions created under 2001 Wis. Act 109 and to counsel their clients accordingly.

    Dating Relationship

    • Warn clients that behavior during even a short-term relationship could result in imposition of an abuse injunction.
    • Inform clients that temporary restraining orders now may be served by facsimile.35
    • Warn clients that a domestic abuse injunction now has a four-year maximum, instead of two years.
    • These warnings should especially be given to divorce clients or any clients involved in a stormy relationship.

    Evidentiary Privilege

    • Warn domestic violence battery and sexual assault clients that the new evidentiary privilege limits their ability to get independent verification of a victim's recantation.
    • Warn clients that this evidentiary privilege extends to the victim's family members.
    • Warn clients that the privilege also may apply to district attorney victim advocates.

    Previously the law defined domestic abuse in terms of acts or threats of violence engaged in by an adult against five classes of victims: 1) adult family members; 2) adult household members; 3) former spouses; 4) adults who are abused by an adult caregiver; or 5) adults with whom abusers have a child in common.4 These obviously are all family and household settings in which domestic abuse and violence are very common. A domestic abuse injunction specifically prohibits: 1) intentional infliction of physical pain, physical injury, or illness; 2) intentional impairment of physical condition; 3) a violation of Wis. Stat. section 940.225 (1), (2), or (3) [sexual assault]; 4) a violation of section 943.01 [criminal damage to property] involving property that belongs to the individual; or 5) a threat to do any of the above [emphasis added].5

    The new language extends domestic abuse injunction protection, for the first time, to dating relationships. The concepts of domestic abuse and domestic relationships now extend outside the family and household (that is, traditionally domestic) setting and expose a whole new group of persons to sanctions. The parameters of that group are largely unknown. The newly created Wis. Stat. section 813.12(1)(ag) defines a dating relationship as "a romantic or intimate social relationship between [two] adult individuals. Dating relationship does not include a casual relationship or an ordinary fraternization between two individuals in a business or social context."

    The statute specifically directs the court to determine whether or not a dating relationship exists by considering the length and type of the relationship as well as the frequency of the interaction between the parties.6 Beyond that directive, however, there are no statutory or other guidelines to define when a dating relationship exists for purposes of the statute.

    Naturally, this lack of guidance begs the question: Why include dating relationship under the domestic abuse injunction statute given the many legal remedies already available to victims of domestic abuse? Prior law actually allowed the issuance of a harassment injunction for threatening, or attempting, to "strik[e], shov[e], kick[] or otherwise subject[] another person to physical contact."7 Realistically, however, harassment injunctions usually are only issued if the petitioner shows a repeated pattern of conduct. Criminal sanctions also are available for single instances of threatening a witness,8 a judge,9 or employees of the Department of Revenue,10 the Department of Commerce,11 or the Department of Workforce Development.12 Multiple "threatening" contacts can bring a criminal stalking charge.13 Any attempt to dissuade a witness14 or victim15 from testifying is likewise chargeable as a crime. As with the harassment injunction, these criminal protections were limited and not always readily available. Thus, legal protection seemed readily available for those who were merely dating.

    Ostensibly, this new dating relationship provision provides greater practical protection for victims of domestic abuse by using the lesser burden of the domestic abuse injunction. Now, a victim of domestic abuse need only prove a single incident rather than a pattern of behavior (as is typically required for a harassment injunction), or criminal intent (as required for a crime). By legally equating domesticity with dating, the victim is more readily afforded the protections, such as mandatory arrest, available to victims of domestic violence. Also, the maximum length of a domestic abuse injunction has been extended from two years to four years16 - this is significant as both a penalty for the perpetrator and a shield for the victim.

    One of the fundamental problems presented by the expanded statute is that it does not adequately define "dating relationship."17 The statutory language appears to impose the far reaching and long-range consequences of an injunction on individuals who may have been involved in brief, fairly minimal relationships. The statute offers no guidance (other than requiring a romantic or intimate relationship) as to what constitutes dating.18 How long must the individuals date? A week? A month? A year? What types of intimate relationships are covered? Consistent, monogamous dating? On-again, off-again relationships? How often must the people see each other? Every day? Once a week? Once a month? What about couples who live in distant cities and only see each other occasionally? The answers currently defy legal definition. The interpretation and application of the length, type, and frequency factors can be as varied as the judge who applies the factors - likely leading to great disparity in different parts of the state.

    To date, only one case has addressed the issue of the legal definition of "dating." In State v. Koenig the defendant's probation officer required advance approval of any dating relationship entered into by the defendant. In Koenig, the definition of dating relationship was challenged as being unconstitutionally vague.19 The court admitted "the statute does not define what is 'romantic,'" but held that this was not enough to render "dating relationship" unconstitutionally vague.20 This ruling, however, does little to guide practitioners and trial courts because the reasoning behind the constitutional holding was minimal and the statutory factors defining the terms were not even addressed.

    Evidentiary Privilege

    Your client faces a charge of domestic violence - battery. The complaining witness has greatly exaggerated, even fabricated, portions of the complaint to the police. Regretting her actions later, this person recants much of the story to volunteer staff members of a domestic violence shelter, as well as to members of her immediate family. Can your client force those individuals to testify as to the recantations?

    The answer is, not anymore.

    If the complaining witness made these recantations to a victim/witness worker from the district attorney's office, does the evidentiary privilege still apply? Probably. However, it is unclear whether the district attorney must disclose this exculpatory evidence.

    Act 109 created a new privilege for communications made, and information shared, between a victim of abusive contact and a victim advocate. Under new section 905.045(1)(c) of the Wisconsin Statutes, a victim of any abusive contact now has a privilege to refuse to disclose, and to prevent the disclosure of, any communications made to a victim advocate and to any persons under the direction of an advocate, if the communication was made for the "purpose of providing counseling, assistance, or support services."21 The only exception to this privilege applies to persons subject to mandatory reporting of child abuse.22

    Historically, privileges (with the exception of the spousal privilege) have been granted only to members of certain well-recognized professions, for which specialized training and licensing is required and for which an oath is taken. Covered relationships include attorney-client, physician-patient, registered nurse-patient, chiropractor-patient, psychologist-patient, social worker-patient, marriage/family therapist-patient, professional counselor-patient, and clergy-parishioner.23 These privileges are narrowly tailored to ensure that they further the interests of justice and do not lead to abuse. Formal training, licensing, and a formal code of conduct have always been critical to the granting of a privilege.

    This new evidentiary privilege, however, does not require that a victim advocate be licensed, or even certified, nor is any basic level of training required. The privilege applies not only to employees of domestic abuse service providers but also to volunteers of those organizations and members of the victim's family who are getting any assistance from the service provider.24 Volunteers are minimally trained and unlicensed, do not operate under a code of professional ethics, and face no potential professional disciplinary action for misconduct. The statute's inclusive language covers secretaries, receptionists, and so on.

    The underlying rationale for this new evidentiary privilege is that the information shared by victims may contain specific details, such as contact information, that will affect the victim's safety and well-being. Therefore, the information needs to be held in the highest confidence. Also, the heightened confidentiality will encourage more victims of abuse to come forward because they will feel freer to share their ordeal with treatment providers. However, on a different level, the new privilege creates serious litigation problems for defendants and ethical conflicts for prosecutors.

    Prosecutors are constitutionally mandated to disclose all exculpatory evidence. This new privilege may impede that mandate. For example, a complaining witness's contradictory or inconsistent statements (or total recantation) made to a victim/witness worker (that is, an employee of a prosecutor's or DA's office who assists victims and witnesses) is information critical to the defense. A prosecutor is required to disclose this information. The question that arises, however, is: If the disclosure is made to a victim/witness worker in a district attorney's office, does this new privilege apply? District attorneys involved in the drafting of this law insist that victim/witness personnel are excluded from coverage. The existence of this "conflict" has not yet been recognized by any court, let alone reviewed to determine whether withholding this information is constitutional. As the statute is written, however, the language would certainly apply to victim/witness advocates in a district attorney's office. Does that mean that the district attorney must refuse to disclose potentially exculpatory evidence to a defendant? It would appear so.

    In any event, the very existence of this privilege for unlicensed service providers greatly infringes on a defendant's due process rights - especially on the defendant's ability to mount a defense, confront adverse witnesses, and compel attendance of potentially favorable witnesses. In short, blocking access to these statements virtually assures a constitutional violation.

    A person accused of a crime has a constitutional right to due process of law and discovery of all evidence to be used against him or her.25 A criminal defendant must be given a meaningful opportunity to present a complete defense.26 The main component of that right is the ability to confront witnesses under both the U.S. and Wisconsin Constitutions.27 The central concern of the Confrontation Clause is to ensure reliability of evidence against criminal defendants by subjecting the evidence to rigorous testing before a finding of fact.28 Further, a defendant has a right to the state's assistance in securing the "raw materials" for an effective defense.29 This includes enabling the defendant to compel attendance of favorable witnesses at trial,30 and to present evidence that might influence determination of guilt.31

    This dual concept of compulsion and confrontation necessarily includes, among other rights, the right to present evidence of: 1) a complainant's motive;32 2) post-assault sexual intercourse to show someone else caused an injury;33 and 3) a victim's statement against penal or social interest under section 908.045(4), when the prior statement is inconsistent with the victim's trial testimony and the victim claims not to remember the statement.34 Can these fundamental rights now be interfered with? The tentative answer is that they probably could be barred by the victim or the advocate.

    The changes to Wisconsin's domestic abuse laws affect every lawyer who may encounter a domestic abuse situation in his or her practice. The primary difficulty posed is the lack of clear guidance about how the changes will be applied on a practical level. Not only can the changes be applied unevenly in courtrooms around the state, they also clearly involve questions of constitutional infirmity - situations lawyers must be aware of and ready to address.

    John A. Birdsall, U.W. 1989, is the founder and principal of Birdsall Law Offices S.C., Milwaukee, focusing on serious criminal defense litigation at both the trial and appellate levels. He is the immediate past chair of the State Bar Criminal Law Section and is president-elect of the Wisconsin Association of Criminal Defense Lawyers. During the debate and passage of Act 109, he lobbied the legislature and the governor on behalf of the State Bar Criminal Law Section.

    Endnotes

    12001 Wis. Act 109.

    2Wis. Stat. § 813.12(1)(ag).

    3Wis. Stat. § 905.045(2).

    4Wis. Stat. § 813.12(1)(am).

    5Wis. Stat. § 813.12(1)(am)1.-6.

    6Wis. Stat. § 813.12(1)(ag).

    7Wis. Stat. § 813.125(1)(a).

    8Wis. Stat. § 940.201.

    9Wis. Stat. § 940.203.

    10Wis. Stat. § 940.205.

    11Wis. Stat. § 940.207.

    12Id.

    13Wis. Stat. § 940.32.

    14Wis. Stat. §§ 940.42, .43.

    15Wis. Stat. §§ 940.44, .45.

    16Wis. Stat. § 813.12(4)( c).

    17Wis. Stat. § 813.12(1)(ag).

    18Id.

    19State v. Koenig, 2003 WI App 12, 259 Wis. 2d 833, 656 N.W.2d 499.

    20Id. ¶ 13.

    21Wis. Stat. § 905.045(2).

    22Wis. Stat. § 905.045(4).

    23Wis. Stat. §§ 905.03, .04,.06.

    24Wis. Stat. § 905.045(1)(b).

    25Brady v. Maryland, 373 U.S. 83 (1963).

    26State v. Morgan, 195 Wis. 2d 388, 536 N.W.2d 425 (Ct. App. 1995).

    27State v. Jenkins, 168 Wis. 2d 175, 483 N.W.2d 262 (Ct. App. 1992).

    28Maryland v. Craig, 497 U.S. 836 (1990); State v. Jackson, 216 Wis. 2d 646, 575 N.W.2d 475 (1998).

    29Taylor v. Illinois, 484 U.S. 400 (1988); State v. Maday, 179 Wis. 2d 346, 507 N.W.2d 365 (Ct. App. 1993).

    30State v. Kirschbaum, 195 Wis. 2d 11, 535 N.W.2d 462 (Ct. App. 1995).

    31Taylor v. Illinois, 484 U.S. 400 (1988); State v. Kirschbaum, 195 Wis. 2d 11, 535 N.W.2d 462 (Ct. App. 1995).

    32State v. Herndon, 145 Wis. 2d 91, 426 N.W.2d 317 (Ct. App. 1988), overruled on other grounds by State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990).

    33State v. Gulrud, 140 Wis. 2d 721, 412 N.W.2d 139 (Ct. App. 1987) (as interpreted in State v. Wirts, 176 Wis. 2d 174, 500 N.W.2d 317 (Ct. App. 1993)).

    34Vogel v. State, 96 Wis. 2d 372, 291 N.W.2d 838 (1980).

    35Wis. Stat. § 813.12(2)(a




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