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§ 948.095, Sexual Assault by School Instructional Staff – Elements

State v. David R. Kaster, 2006 WI App 72, PFR filed 4/26/06; prior appeal: 2003 WI App 105
For Kaster: Robert R. Henak

Issue/Holding: Kaster’s prior appeal held that school staff need not be under contract for purposes of § 948.095; providing voluntary services at the time of the alleged assault suffices. This prior holding did not, the court now resolves, expand the scope of the statute so as to deprive Kaster of fair notice of the proscribed conduct:

¶7        Here, Kaster argues that our interpretation of Wis. Stat. § 948.095 in Kaster requires that a defendant must actually be providing services at the time of the alleged sexual contact to be covered by the statute, which he contends is an additional element that we added. Kaster bases his proposition on the following statement in our opinion: “Finally, we conclude that the evidence at trial was sufficient to allow the jury to conclude that Kaster was providing services to the school or school board when he committed the … assault.” Id., ¶17. Therefore, Kaster asserts, he was “denied his right to present a defense on that element of the offense” because he “was not on notice of [our] interpretation of the statute at the time of the trial ….”

¶8        Because the statute put Kaster on notice that a conviction required that he be providing services at the time of the alleged sexual contact, we reject his argument. In Kaster, we addressed Kaster’s contention that the statute did not cover him because he was not school staff. The foregoing quote that Kaster highlights did not create an additional element but instead provided a description of Kaster’s relationship with the school for the purpose of analyzing whether Kaster was school staff. Id. Our goal was simply to further parse the definition of school staff and its application to Kaster. Thus, we reject Kaster’s argument that he was denied the right to present a defense and that we should exercise our discretionary reversal authority under Wis. Stat. § 752.35.

The court’s discussion is a bit opaque. Kaster, was a high school swim coach, but his contract was seasonal and the challenged assault occurred outside the swim season (though he was then working for the team as what he characterizes an “intermittent volunteer”). He thus argued in his prior appeal that he was not under contract with the school board at the time of the assault and that the statute did not cover someone such as him providing merely volunteered service. The court rejected that argument, holding that you don’t have to be “under contract” to be considered school staff for purposes of § 948.095. Kaster further argued the 1st time around that the evidence was insufficient, but the court said, in the remark quoted above in ¶7, that the jury had a basis to conclude that he had provided services to the school at the time of the assault. One little problem: the court didn’t explain then, and perpetuates that failure now, exactly what services an “intermittent volunteer” such as Kaster must provide. Nor was the jury given any guidance on that question. Kaster therefore argues that as a matter of due process the definition must be limited “to those volunteers actively providing services to a school at the time of the alleged assault,” else the statute would be too vague. The court seemingly, on this new round, rejects that argument, though other than the conclusory remark in ¶8 gives no analysis. Moreover, the PFR points out that “the jury instructions here did not require a finding that Kaster was providing services to the school at the time of the alleged assault,” which leads to a very serious defect, namely that a conviction can’t be affirmed on a theory never resolved by the fact-finder. Again, no discussion on this point by the court of appeals.


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