Taylor was convicted at trial of seventeen charges related to sexual assault of a child, S.F. On appeal he attacks only his conviction for causing mental harm to a child and the associated bail-jumping count. He argues the evidence was insufficient to show that S.F. suffered “mental harm” as it is defined in the statute, or that his post-assault contact with her was a substantial cause of said harm.
The two Wis. Stat. § 948.04(1) elements at issue are the second and third:
2. [The child] suffered mental harm.
3. The defendant caused mental harm to [the child]. This requires that the defendant’s conduct was a substantial factor in producing the mental harm.
WIS JI–CRIMINAL 2116. “Mental Harm” is defined earlier in the chapter to mean
substantial harm to a child’s psychological or intellectual functioning which may be evidenced by a substantial degree of certain characteristics of the child including, but not limited to, anxiety, depression, withdrawal or outward aggressive behavior. “Mental harm” may be demonstrated by a substantial and observable change in behavior, emotional response or cognition that is not within the normal range for the child’s age and stage of development.
Taylor allows that expert testimony is not always required to demonstrate mental harm, but argues the evidence here was insufficient without it. He focuses on the last sentence of the definition, which allows mental harm to be “demonstrated by a substantial and observable change in behavior … not within the normal range for the child’s age and stage of development.” (Emphasis added.) The argument is that there was no evidence that S.F.’s behavior was not in the normal range.
The court of appeals disagrees:
Taylor appears to interpret this statutory language as requiring the State “to prove that the observable change in behavior is not within the normal range for the child’s age and stage of development.” But the use of “may be evidenced by” and “may be demonstrated by” reflect ways the burden of proof may be met, not separate and required showings. See WIS. STAT. § 948.01(2). The core definition of mental harm under the statutory language is simply “substantial harm to a child’s psychological or intellectual functioning.” Id.
That statutory definition is a mess. Why are there two separate clauses that each provide a conceptually overlapping list of ways that mental harm may be “evidenced/demonstrated”? And though the court makes a fair point–the “may” in each clause suggests the lists are permissive or non-exclusive means of proof–it’s also fair to ask whether “mental harm” may be shown by a “change in behavior” that is “within the normal range.” If it can be, as the court seems to hold here, doesn’t that make the last 15 words of the statute surplusage?
The court goes on to find that S.F.’s behavioral changes–at least some of which a doctor testified were normal for her age–were good enough evidence for a jury to find mental harm. The court also finds circumstantial evidence that Taylor’s various contacts with S.F. while he was in jail were a substantial factor in creating that harm. (¶¶12-13).