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Home detention counts as “confined in a correctional institution” under § 940.225(2)(h)

State v. Jeff C. Hilgers, 2017 WI App 12; case activity (including briefs)

Hilgers, a correctional officer at a county jail, had sex with an inmate while she was on home detention. He was properly convicted of second degree sexual assault under § 940.225(2)(h), which prohibits a correctional officer from having sexual intercourse or sexual contact with “an individual who is confined in a correctional institution.”

Hilgers met A.C. while she was a jail inmate. After she was placed on home detention under § 302.425(2), the two began a consensual sexual relationship. When he was charged with sexual assault under § 940.225(2)(h) he moved to dismiss, arguing the sexual activity at her home wasn’t covered by the statute because she wasn’t “confined in a correctional institution.” The circuit court denied the motion, and the case went to trial. Over Hilgers’s objection, the court instructed the jury that A.C. was “confined in a correctional institution” because “participation in a jail home detention program constitutes confinement in a correctional institution.” (¶¶2-5).

The circuit court’s instruction was consistent with the plain meaning of the relevant interconnected statutory provisions:

¶12     “Correctional institution” is defined by Wis. Stat. § 940.225(5)(acm) as “a jail or correctional facility, as defined in [Wis. Stat. §] 961.01(12m) ….” As is relevant here, “[j]ail or correctional facility” is defined to mean “[a] jail, as defined in [Wis. Stat. §] 302.30 ….” Sec. § 961.01(12m)(b). Section 302.30 in turn defines “jail” as “includ[ing] municipal prisons and rehabilitation facilities.” ….

¶13     Pursuant to Wis. Stat. § 302.425(2), “a county sheriff or a superintendent of a house of correction may place in the home detention program any person confined in jail” and “may transfer any prisoner in the home detention program [back] to the jail.” …. The plain meaning of this language is that confinement in a jail includes detention in a home detention program.

¶14     In addition, Wis. Stat. § 302.425(5)[(a)] states that “a prisoner in the home detention program is considered to be a jail prisoner but the place of detention is not subject to [certain specified] requirements for jails.” (Emphasis added.) We conclude that the plain meaning of “jail prisoner” is a person confined in a jail and, therefore, it follows that the legislature here is stating that a person in home detention is “considered to be” a person confined in a jail.

¶15     Wisconsin Stat. § 302.425 provides that when a prisoner is “confined in jail,” the prisoner may be “detained at the prisoner’s place of residence” as part of home detention program. We conclude that under § 302.425, a prisoner participating in the home detention program remains at all times “confined,” that is to say imprisoned, in a jail. However, under the program, the prisoner’s confinement in jail may consist of detention in the prisoner’s residence. The fact that the prisoner is “detained” during the prisoner’s participation in the program at a location other than a jail facility does not negate the fact that the prisoner remains confined in a jail for purposes of § 302.425 and, therefore, “confined in a correctional institution” for purposes of Wis. Stat. § 940.225(2)(h).

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