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Sentencing Conditions, § 973.049(2): No-Contact Order – “Victim” Definition

State v. Mark Allan Campbell, 2011 WI App 18; for Campbell: Steven D. Phillips, SPD, Madison Appellate; Campbell BiC;State Resp.Reply

(Issue of plea bargain breach discussed in separate post, here.)

On sentencing Campbell for sexual assault of his daughter, the trial court had, and properly exercised, authority under § 973.049(2) to bar Campbell’s contact with his son until completion of sex offender treatment. That provision, as relevant here, authorizes a sentencing court to prohibit the defendant “from contacting victims of … a crime considered at sentencing during any part of the individual’s sentence.”

¶24      Thus, the operative question is whether the circuit court properly exercised its discretion when it determined Campbell’s son was a “victim” of the crime for which Campbell was sentenced. …

¶25      Campbell was convicted of first-degree sexual assault of a child based on allegations that he abused his daughter.  The police reports attached to the criminal complaint established that Campbell exposed his son to the sexual abuse of his daughter.  Campbell’s daughter told a social worker that Campbell sexually assaulted her while her little brother was home.  She also told the social worker that her little brother would sometimes come into the room while the sexual assault was occurring.

¶26      The potential emotional harm associated with observing Campbell’s sexual misconduct is sufficient to make his son a victim of the crime for purposes of WIS. STAT. § 973.049(2). …

“Victim” isn’t defined in § 973.049. But it is recurrently defined throughout the statutes as, or equivalent to, “a person against whom a crime has been committed,” §§ 301.046(4)(a); 301.048(4m)(a); 301.38(1)(b); 302.105(1)(b); 303.068(4m)(a); 304.09(1); 895.457(1)(d); 940.41(2); 950.02(4); 971.17(4m)(a); 971.17(6m)(a). Campbell did not commit a crime “against” his son, nor does the court claim otherwise. If the standard definition of “victim” applies, then a no-contact order isn’t supported by § 973.049(2). Quick glance at the legislative history file (2005 Act 32, 2005 AB 62) doesn’t illuminate the point – if there’s nothing to suggest a deviation from the standard definition, nor is there anything to suggest a limitless one. If the legislature didn’t intend the standard definition, then what definition did it intend? The court not only doesn’t say why the standard definition doesn’t apply, but doesn’t even attempt to assign any definition, not expressly anyway. It’s enough, apparently, that we know it when we see it. You’ll have to trust the court to apply it fairly. Campbell committed a crime, and even though not committed against his son, it had the “potential” to cause him “emotional harm”; that’s all it takes. Note, as well, how thin the support for the idea of real “emotional harm,” ¶25, as in, next to none. Potential harm is enough. But if this simply illustrates that if the court doesn’t provide an explicit definition, it seems to apply an instrumental one. If someone witnesses a crime and might be emotionally harmed by the experience, then that person is a “victim.” You be the judge of whether this is a workable definition, let alone one the legislature intended.

Speaking of potential, if on a totally separate point, that would be the implications no-contact orders hold for plea procedure. An era has dawned in which the often arbitrary distinctions between “collateral” and “direct” consequences of a conviction, if not exactly abolished, are open to sharp question. (The “Padilla Era,” to give it a name.) “(T)he relationship between a parent and a child is a constitutionally protected right,” Barstad v. Frazier, 118 Wis.2d 549, 556-57, 348 N.W.2d 479 (1984). Does a defendant have a right to know, before his guilty plea is deemed knowing, intelligent and voluntary, that his plea puts at dire risk his constitutional right to maintain contact with his child(ren)? Should knowledge of the risk of loss of this right be entitled to less protection than, say, risk of deportation? Well, we won’t know the answer unless and until someone steps up to litigate the issue.

A final word. The court does perceive some limit under the no-contact order, if not exactly to the undefined term “victim,” at least to the connection to a crime considered at sentencing. The State argued that Campbell’s exposure of both son and daughter to pornography and other harmful materials also made the son a “victim.” Not so fast, the court says:

¶28      However, the statute is restricted to a victim “of any crime considered at sentencing.”  The facts cited by the State, while indicative of disgusting conduct, are not related to the crime for which Campbell was sentenced—first-degree sexual assault of his daughter.  Thus, that Campbell exposed his son to knives, chemicals, and sexually explicit materials does not make his son a victim of the crime for which Campbell was sentenced.  Rather, Campbell’s son is a victim of that crime because he witnessed the abuse of Campbell’s daughter.

Well, “witnessed the abuse” and therefore was subject to potential emotional harm. (Recall, though, that the basis for the assumption the son saw anything was hearsay and supposition.) In any event, there must be linkage to a crime considered sentencing. Not much, and certainly no more than the statute expressly requires, but it is more than nothing.

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