Criminal Procedure : Week of 5 February, 2008

February 5

• State v. Williquette
  Trial court dismissed the case on defendant's motion. The statute requires that the person directly abuse the victim, which she did not. The state appealed the dismissal, and the appeals court reversed it. She appeals, and now we're at the WI Supreme Court.

  What about aiding and abetting: one flavor of this would be sharing the purpose of abusing the children. That would be odd. So what about knowingly exposing the children to this risk? She can't have been in much doubt about this.

  If there's no ambiguity then they don't get to interpret the statute and determine the legislative intent. So they reason that there is ambiguity here (i.e., no statutory definition of "subjects"). This means they can look in the dictionary and find that the fourth definition of "subjects" fits Ms. Williquette's situation.

  This is a fairly passive standard for culpability: what mental state is required? Can you negligently subject a child to abuse? (i.e., if you're just unaware what might happen) It's sort of a delicate and difficult area: how are we going to judge what parents *should* know?

  So how would she have fared under §948.03(4)? Elements:

  1. A person "responsible for the child's welfare" (defined in §948.01(3)). So babysitters are vulnerable here.
  2. Has knowledge that another person intends to cause, etc., great bodily harm
  3. Is physically and emotionally capable of preventing the abuse
  4. Fails to do so
  5. Failure exposes to risk

  So look at #3. What are some of the emotions you could use to exculpate yourself? Fear? Depression? Is love an emotion that would let you off ("I love him so much that I can't act in a way that would cost me his affection"). Does the action the person takes have to be an effective action? Is calling the cops good enough? What if they don't come in time?

  What is the "mental harm" spoken of in §948.04? Look at §948.01(2). Aren't pretty much all parents guilty of a Class F Felony? How do you know if the child is feeling anxiety to a substantial degree?

  Anyway, her defense under §948.03(4) would be the mental state element.

  Note also that one view of the facts is that she did not fail to act. She did act: her act was to leave the children with the abuser. That's an act, and it led to abuse of the children. No problem. It's the "failure to act" element that is troublesome here.

• The criminal law is about what we think is OK and what is not OK. It's hard to define, sometimes. But at the end, we know that Williquette did not do right by her children.
• Note that the court announces a standard of "foreseeable risk:" pretty much a negligence standard.
• Now the State v. Barry Brown article. The evidence is very vague, and there are lots of gray areas. We all agree that fourth degree sexual assault is condemnable, and we want to condemn it, and under one view of the evidence, this is fourth degree sexual assault. But at some point we need to ask, "is this an appropriate task for the legislature?" Can they ever succeed? And if not, could they spend their time more effectively on something else?

  Isn't there a fundamental problem with this statute, in the sense that there might *always* be reasonable doubt in prosecutions of this crime? Was a hung jury the right result here?

6 February: canceled due to snow.

7 February

• Again on the Brown jury duty notes.
• One problem: prosecutors can lock into a view of the evidence pretty early ("tunnel vision"), and ignore things that come up later. This can lead to wrongful convictions, actually.
• The way the statute reads, it leaves people who pay attention to the law in a quandary: wondering about facts that are not in evidence, finding facts that are not relevant, and being unsure about the facts that are in evidence. So if there is no evidence of consent, you're supposed to find Brown guilty, but that's unsatisfying, at least in some ways. How useful is it for us to have statutes and formal prosecutions to sort out situations like this?
• Rana Sampson was a drug task force person in NY. Her "strategic triangle:"

           Victim
             /\
            /  \
           /    \
          /      \
         /        \
        /__________\
  Offender       Place of Crime

• In order to have a crime, you need all three things. This suggests to us a number of different prevention strategies. Each of those vertices can have guardians (naturally occurring). Before we decide whether arrest prosecution and conviction as the way to stop crime, we should first consider whether there's a way to invoke the power of the naturally occurring guardians of each of those elements, because they have the power to actually stop the crime.
• So what should we do differently, if we see things this way? How can we get these guardians involved? Some prosecutors (et al.) don't see their function as crime prevention.
• So why do colleges spend their money on preventive measures that are not effective against the most likely form of sexual assault? Because we don't know what to do about acquaintance rape, but we can be seen to be doing something about the rape problem.
• Interesting observation: they say education is effective, but programs aimed at changing values are ineffective. Maybe people can't be trained in some areas.
• Why not try to intervene in high school, as opposed to waiting for college, if the beginning of first year is the most dangerous time? Are all of the people involved in acquaintance rape at the start of first year freshmen? Or are older students preying on younger less experienced ones?
• In Victorian times, one of the big problems they were trying to solve with statutory rape laws is that of guardians taking advantage of their wards.
• As a prosecutor, you have the right to charge anyone when there's probable cause to suggest they committed a crime. But if you're not reasonably confident of conviction, you run the risk of exposing the criminal justice system as ineffective, and unable to perform its job.
• What about sex offender registration? What are the benefits?