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You can’t steal marital property, but you can criminally damage it

State v. Cynthia Hansen, 2016AP2114-CR, 6/14/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

Hansen beat up a car that was marital property between her and her wife. She pled to criminal damage to property of another; on appeal she claims, inventively, that the theft statute gave her the right to do just as she did. The court of appeals disagrees.

The criminal damage statute, Wis. Stat. § 943.01, forbids intentionally damaging the “property of another”; “property of another” is in turn defined to include property in which the damager has a shared interest, so long as he or she “has no right to defeat or impair” the other person’s interest. § 939.22(28). So, you can be criminally liable for intentionally damaging property that you own with another person–for example, the marital property you share with your spouse.

But, says Hansen, what if you do have a “right to defeat or impair” the other person’s interest? Then, by the statute’s terms, you can’t be guilty of criminal damage to property. Hansen claims she has such a right because of Wis. Stat. § 943.20(2)(c)–which defines “property of another” specifically as to the statute criminalizing theft. Lo and behold, that definition excludes property in which the actor has a shared interest if “the actor and victim are husband and wife.” So, you can’t be convicted of theft for taking marital property from your spouse. What is this, says Hansen, but a “right to defeat or impair” your spouse’s interest in said property? And if you have such a right, then pursuant to § 939.22(28), said property is not “property of another” under the criminal damage statute. Q.E.D.

Now, one could quibble with the claim that the absence of a particular criminal penalty for a given act amounts to a “right” to commit that act. The court of appeals, not playing along, simply cites to State v. Sevelin, 204 Wis. 2d 127, 554 N.W.2d 521 (Ct. App. 1996), which is right on point and holds that a spouse can be convicted of criminal damage to marital property. It doesn’t address Hansen’s argument, summarized above, that Sevelin is wrong because it didn’t consider the relevance of § 943.20(2)(c).

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