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Boyfriend can’t assert defense based on girlfriend’s privilege to “reasonably discipline” her child

State v. Glen Artheus Beal, 2014AP2534-CR, 9/22/15, District 1 not recommended for publication); case activity

A jury convicted Beal of child abuse as a  party to a crime because multiple witnesses testified that he punched his girlfriend’s daughter and also restrained the daughter so that her mother (his girlfriend) could hit her. See §939.05(2)(a) and §939.45(5). Beal argued that although he was not entitled to assert the parental discipline privilege himself, he should have been able to present a defense based on his girlfriends’ right to assert that privilege.

The court of appeals disagreed. It was not necessary for the State to charge or convict the girlfriend/mom before charging and convicting the boyfriend. Thus, he couldn’t take advantage of his girlfriend’s affirmative defense to child abuse. State v. Shears, 68 Wis. 2d 217, 240, 229 N.W.2d 103 (1975). Slip op. ¶15.

Beal cited a recent unpublished court of appeals decision where a preacher was convicted of child abuse as a party to a crime for encouraging parents to strike kids as young as 3 months old. State v. Caminiti, 2013AP730-CR (Ct. App. Mar. 20, 2014). See our post here. Beal noted that the preacher asserted a defense based on the parents’ “reasonable discipline” privilege and argued that he should be permitted to do so too. The court of appeals response: we did not hold that the preacher could assert the privilege; the parties agreed that he could. Slip op. ¶15 n.3

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{ 1 comment… add one }
  • Robert R. Henak September 28, 2015, 3:03 pm

    With all due respect to the Court, this decision is just wrong, despite the strong emotional pull of the state’s case. First, whether a defendant is entitled to an instruction on a proper defense does not turn, as the Court argues, on whether there was sufficient evidence to convict. Rather, the longstanding rule of law is that the defendant is entitled to the instruction if a reasonable jury could find sufficient evidence to support it. Those are two vastly different standards and the Court just blows it.

    Second, the defendant’s argument was that (1) he did not directly commit the crime of child abuse (and his evidence supported that claim) and (2) that he was not guilty as party to a crime because the mother (the direct actor) could not be guilty due to the reasonable discipline privilege. That is a perfectly reasonable position because, contrary to what the Court suggests, one cannot be party to a “crime” on a theory of vicarious liability (aider and abettor or co-conspirator) unless the direct actor in fact has committed a crime. The issue is not whether the direct actor was charged or even whether that person was acquitted in a separate trial. There still must be proof beyond a reasonable doubt in this defendant’s trial that he is guilty of a crime, and that can happen on a vicarious liability theory of party to a crime ONLY if the jury is convinced beyond a reasonable doubt that the direct actor in fact was guilty of the crime.

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