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§ 948.21(1), Neglect, Causing Death – Element of “Person Responsible for Child’s Welfare,” § 948.01(3)

State v. Marketta A. Hughes, 2005 WI App 155, PFR filed
For Hughes: John T. Wasielewski

Issue/Holding:

¶16      We conclude that the plain language of the statute makes clear that a seventeen-year-old employed by a parent to care for the parent’s child can be a person responsible for the welfare of the child. The record reflects that Marketta freely chose to assume responsibility for the welfare of Bryan at her mother’s request. Thus, Marketta became a voluntary caretaker of Bryan and, as such, she was a person responsible for his welfare.

The “person responsible” element is defined by § 948.01(3), ¶12; the only definitional alternative that supports Hughes’ guilt is the last one: “a person employed by one legally responsible for the child’s welfare to exercise temporary control or care for the child.” Hughes wasn’t “employed” in the ordinary sense of the word – she was asked to watch the child by her mother, who was herself doing a favor for an acquaintance (some favor; but that’s a different story). However, the supreme court previously gave a broad construction to the term, in State v. Sostre, 198 Wis. 2d 409, 542 N.W.2d 774 (1996) (live-in boyfriend serving as voluntary caretaker for child satisfies definition; court apparently holding that financial arrangement not necessary to be “employed” under this definition). Nor does it matter that Hughes was 17 years old, given the legislative history, ¶15 (1987 statutory revision removed 18-year-old threshold).

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