Vol. 77, No. 2, February
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.
by John A.
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.
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.
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.
- 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
- 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.
- 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
- Warn clients that the privilege also may apply to district attorney
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
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
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
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.
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
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
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.
12001 Wis. Act 109.
2Wis. Stat. §
3Wis. Stat. § 905.045(2).
4Wis. Stat. §
5Wis. Stat. §
6Wis. Stat. §
7Wis. Stat. §
8Wis. Stat. § 940.201.
9Wis. Stat. § 940.203.
10Wis. Stat. § 940.205.
11Wis. Stat. § 940.207.
13Wis. Stat. § 940.32.
14Wis. Stat. §§ 940.42,
15Wis. Stat. §§ 940.44,
16Wis. Stat. § 813.12(4)(
17Wis. Stat. §
19State v. Koenig, 2003
WI App 12, 259 Wis. 2d 833, 656 N.W.2d 499.
20Id. ¶ 13.
21Wis. Stat. §
22Wis. Stat. §
23Wis. Stat. §§ 905.03,
24Wis. Stat. §
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
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
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. §