July 18, 2017 – A mother who allowed her husband to sexually assault her 12-year-old daughter recently lost an appeal to the Wisconsin Supreme Court, which rejected the mother’s claim that multiple charges amounted to unconstitutional double jeopardy.
The state charged Heather Steinhardt with failure to protect a child from sexual assault, first-degree sexual assault of a child under 13 as a party to a crime, and child enticement. The criminal complaint alleged that Steinhardt’s husband made repeated requests to have sex with Steinhardt’s daughter (his stepdaughter) over a three-year period. When the girl was 12, Steinhardt acquiesced and facilitated the sexual assault. The daughter told her biological father about the assault. He contacted the police.
The complaint specifically alleged that Steinhardt brought her daughter to the bedroom where her husband was waiting, and remained present in the bedroom while her husband sexually assaulted her daughter and did nothing to stop it. She later pled no contest on all three charges. The sentencing judge imposed consecutive sentences on all three counts for a total of 22.5 years in prison, with 15 years of extended supervision.
Steinhardt filed a postconviction motion on double jeopardy grounds. The Wisconsin and U.S. Constitutions prohibit the state from imposing multiple punishments for the same offense. Steinhardt argued that two charges – failure to protect and sexual assault as a party to a crime – penalized the same criminal activity. And she also argued that her lawyer was ineffective for failing to raise the double jeopardy argument.
An appeals court upheld the convictions. And in State v. Steinhardt, 2017 WI 62 (June 21, 2017), the supreme court affirmed (5-2), concluding that Steinhardt’s right against double jeopardy was not violated because the crimes were not identical in fact.
“Moreover, we determine that Steinhardt failed to overcome the presumption that the legislature intended cumulative punishments for her conduct, given that her conduct consisted of two separate acts,” wrote Justice Michael Gableman for the majority.
Two justices dissented. They acknowledged Steinhardt’s conduct as “revolting and detestable” but concluded that the guarantee against double jeopardy still protects her in this case because the two counts are “identical in law and fact.”
Majority Says Counts Not Identical in Fact
The majority noted a two-pronged approach for multiplicity arguments – whether the charged offenses are “identical in law and fact” and whether the legislature “intended the multiple offenses to be brought as a single count.”
First, the state conceded that counts one and two were identical in law, because failure to protect a child from sexual assault (count one) is a lesser-included offense of first-degree sexual assault of a child under age 13 as a party to a crime (count two).
The majority agreed the counts are identical in law. But the majority rejected any argument that the two counts were identical in fact, relying on the criminal complaint.
Steinhardt had argued that the facts that constituted counts one and two constituted a continuous act that took place during a single incident – she brought her daughter into the bedroom and remained there while her husband committed the sexual assaults.
The state argued that the acts were different. She brought her daughter into the bedroom to be sexually assaulted by her husband (count two), then observed and did nothing to stop it (count one). The majority agreed with the state’s position.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
The majority noted that “[c]harged offenses are not multiplicitous if the facts are either separated in time or [are] of a significantly different nature.”
“We are unable to determine from the facts in the criminal complaint exactly how much time elapsed here; however, we are able to discern acts that are significantly different in nature such that we can say Counts 1 and 2 are not multiplicitous,” Gableman wrote.
“Sitting on the bed is a departure from bringing F.G. to the bedroom and represents a change in Steinhardt’s activity such that her conduct is different in nature,” he noted.
The majority said Steinhardt committed “two separate volitional acts,” an act of commission (taking her into the bedroom) and an act of omission (sitting on the bed).
Second, the majority concluded that convicting Steinhardt on count one does not create a double jeopardy problem for count three, child enticement.
“[C]hild enticement is a wholly different statute with different elements, making Count 3 different in law than Count 1,” Gableman wrote.
Third, Steinhardt did not overcome the presumption that the legislature intended cumulative punishments for her conduct, the majority concluded, using four factors to examine legislative intent, including the statutory language and legislative history.
“In reviewing the four factors, we find nothing, either individually or in the aggregate, that overcomes the presumption that the legislature intended cumulative punishments,” Justice Gableman wrote.
Finally, the majority rejected Steinhardt’s ineffective assistance of counsel claim, noting there was no double jeopardy problem to raise at the trial court level.
Dissent Says Counts Same in Law and Fact
Justice Shirley Abrahamson wrote a dissent, joined by Justice Ann Walsh Bradley. They noted that Steinhardt’s conduct was “revolting and detestable” but concluded that convicting her on counts one and two violated her right against double jeopardy.
“I conclude … that Counts 1 and 2 are identical in law and fact; that the legislature did not intend that these two counts for two offenses identical in law and fact under two subsections of a single statute would result in two convictions,” she wrote.
Justice Abrahamson also concluded that count three is not identical in law with counts one and two, but the legislature did not intend for three separate convictions for the brief course of criminal conduct Steinhardt engaged in under the facts of the record.
“Notwithstanding the heinous nature of Heather Steinhardt’s conduct, the ultimate question for double jeopardy purposes is whether it is fundamentally fair to convict her of the three offenses,” Justice Abrahamson wrote.
The dissent argued that the majority opinion “slices and dices” Steinhardt’s single volitional act and the majority’s reasoning, including use of the commission/omission test, “can easily lead to the overcharging of offenses and the imposition of multiple sentences for a single act or course of conduct.”
The dissent would have reversed to vacate counts one and three, leaving only first-degree sexual assault of a child under age 13 as a party to a crime.