Jan. 31, 2017 – It is a criminal offense for a correctional officer to have “sexual contact or sexual intercourse with an individual who is confined in a correctional institution.” Recently, a state appeals court ruled that the law applies to individuals confined to their homes.
Jeff Hilgers was working as a correctional officer for the Dane County Sheriff’s Department when he met an adult female, identified as A.C., who was jailed as a condition of probation. A.C. was later placed on home detention. She was confined to her personal residence.
Hilgers began a consensual sexual relationship while A.C. was confined to her residence. Ultimately, the state charged Hilgers with second-degree sexual assault under Wis. Stat. 940.225(2)(h), which makes it a Class C felony for correctional officers to have sexual contact with those “confined in a correctional institution.”
Hilgers argued that A.C. was not “confined in a correctional institution” when he had sexual contact with her. The circuit court concluded that home detention constitutes confinement in a correctional institution. The jury was so instructed and found him guilty.
In State v. Hilgers, 2015AP2256-CR (Jan. 26, 2017), a three-judge panel for the District IV Appeals Court affirmed Hilger’s conviction, concluding that “confinement in a jail includes detention in a home detention program” and the jury was correctly instructed.
The panel noted Wis. Stat. section 302.425(5)(a), relating to home detention programs. That statute says “a prisoner in the home detention program is considered to be a jail prisoner but the place of detention is not subject to requirements for jails.”
“We conclude that the plain meaning of ‘jail prisoner’ is a person confined in a jail and, therefore, it follows that the legislature here is stating that a person in home detention is ‘considered to be’ a person confined in a jail,” wrote Judge Gary Sherman.
The panel found no ambiguities in the relevant statutory language. But even if there was, noted Judge Sherman, the conclusion would be the same because one purpose of the statute is to protect prisoners who are vulnerable to substantial control by officers.
“No statutory provisions limit the discretion of the sheriff in deciding when to detain a prisoner in home detention and when to return the prisoner to a county facility,” he wrote. “Thus, it is more reasonable to construe the statutes as providing protection to prisoners in home detention.”
