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§ 940.22(2), Sexual Exploitation by Therapist – Clergy as “Therapist,” Jury Instructions

State v. William E. Draughon III, 2005 WI App 162, (AG’s) PFR filed
For Draughton: Stephen L. Miller

Issue/Holding: Draughon, a pastor, was concededly a “clergy” member within § 940.22(2); however, the instructions relieved the State of its burden of proof on the element of whether he performed “therapy” in this capacity, in that they told the jury that a member of the clergy is a “therapist,” without specifically requiring that Draughon in fact performed therapy:

¶13      Jury instructions that have the effect of relieving the State of its burden of proving beyond a reasonable doubt every element of the offense charged are unconstitutional under the Fifth and Sixth Amendments. State v. Harvey, 2002 WI 93, ¶23, 254 Wis. 2d 442, 647 N.W.2d 189. The Fifth Amendment’s due process guarantee protects “the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id., ¶19 (citations omitted). The Sixth Amendment right of trial by jury in criminal cases includes the right to have the jury, rather than the judge, reach the requisite finding of guilt or innocence. See State v. Peete, 185  Wis.  2d 4, 19, 517 N.W.2d 149 (1994) (“Where the finder of fact is a jury, proof of all essential elements must be tendered to the jury.”).¶14      … Here, the instruction given never directed the jury to make an independent, beyond-a-reasonable-doubt decision as to whether Draughon performed or purported to perform psychotherapy.  Because this finding was a required element of the charge, its omission is constitutional error. See Harvey, 254 Wis. 2d 442, ¶33.


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