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  • WisBar News
    March 19, 2015

    Complaint Okay Despite Indefinite Dates Alleging Sex Assault Crimes Against Minor

    Joe Forward
    Legal Writer

    March 19, 2015 – The Wisconsin Supreme Court recently ruled that the case against Brian Kempainen, accused of sexually assaulting his stepdaughter many years ago, can proceed despite Kempainen’s due process argument for dismissal.

    The two-count child sexual assault complaint alleged Kempainen committed sexual assault in two instances during three- and four-month periods in 1997 and 2001.

    Kempainen moved to dismiss on the ground that the complaint was not sufficiently definite and he needed adequate notice to plead and prepare a defense. He said his due process rights would be violated without more specific dates in the complaint.

    The circuit court agreed and dismissed the case. A state appeals court reversed. And in State v. Kempainen, 2015 WI 32 (March 19, 2015), a unanimous state supreme court affirmed the appeals court, concluding the complaint did not violate due process rights.

    “[W]e hold that the complaint and information provided adequate notice of when the alleged crimes occurred and thus did not violate Kempainen’s due process right to plead and prepare a defense,” wrote Justice Michael Gableman for the court.

    Kempainen was accused of sexually assaulting his stepdaughter in 1997 when she was eight years old and again in 2001 when she was 11 or 12. The stepdaughter reported the assaults to police in 2012, 12 and 15 years after they allegedly occurred. 

    Police began investingating after an ex-boyfriend, who had learned about the stepdaughter's allegations while dating her, told the stepdaughter’s mother about it.  

    The stepdaughter told police the first assault occurred around the time she started second grade, recalling that her family had just moved to Sheboygan. The second assault, she said, occurred when she was in the sixth grade, in the springtime when it was warm.

    The court noted that complaints “must be sufficiently stated to allow a defendant to plead and prepare a defense” under the U.S. and Wisconsin constitutions.

    In sexual assault cases, courts may apply seven specific factors, under State v. Fawcett, 145 Wis. 2d 244, 426 N.W.2d 91 (Ct. App. 1988), and may consider other relevant factors in determining whether a complaint is sufficient, the court explained.

    The supreme court clarified that in sex assault cases, trial courts are reviewing the totality of the circumstances to determine the complaint’s sufficiency and may be guided by the Fawcett factors and other relevant factors when necessary without limitation.

    The first three factors consider the victim’s age and intelligence, the surrounding circumstances, and the nature of the offense, including whether the alleged crime was likely to occur at a specific time or was likely to have been discovered immediately.

    The court noted the stepdaughter was young and likely scared to tell anyone. The court also noted that Kempainen lived in the same house during the alleged period of the crimes, raising no issue of his ability to commit those crimes during that time period.

    Kempainen argued that alleging time periods and not specific dates prevented him from establishing an alibi, if there was one. But the court noted that specific dates don’t need to be alleged if the date is not a material element of the offense charged.

    Under Fawcett, courts also weigh the passage of time since the alleged crime in determining whether the defendant has proper notice to plead and prepare a defense.

    “We cannot say that the passage of 12 to 15 years alone deprives Kempainen of due process,” Justice Gableman wrote. “Rather, we must consider why the delay occurred and how it impacts Kempainen’s ability to prepare his defense.”

    The court noted that minor victims of sexual assaults are often reluctant to come forward. In such cases, the defense is impacted, but time can also make cases more difficult to prove, as the victim’s credibility is often a central issue in the case.

    “Kempainen has not articulated any way in which the charging periods have impaired his ability to prepare a defense, only that the charges make it difficult to prepare his preferred defense,” Justice Gableman wrote.

    Finally, the court noted that the stepdaughter identified the time of day and the nature of the alleged assaults with reasonable certainty, another Fawcett factor in determining the sufficiency of the complaint.

    “Taking account of all of the circumstances surrounding the charges against Kempainen, we hold that he was given sufficient notice of the nature of the charges against him and that he is able to plead and prepare a defense,” Gableman wrote.

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