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State v. Stephen A. Freer, 2010 WI App 9, PFR filed

court of appeals decision; for Freer: Suzanne L. Hagopian

Intimidation of Crime Victim, § 940.44(2), Intimidation Occurring after Complaint Filed
Intimidation of a crime victim, § 940.44(2), isn’t restricted to conduct occurring before the victim reports the crime to the police but, rather, covers conduct after the complaint has been filed:

¶24 In light of the LRB analysis, we conclude that the legislature intended the victim intimidation statute to prohibit any act of intimidation that seeks to prevent or dissuade a crime victim from assisting in the prosecution. Accordingly, we read “and” in the phrase “causing a complaint … to be sought and prosecuted and assisting in the prosecution thereof” in the disjunctive, and thereby conclude that Wis. Stat. § 940.44(2) prohibits knowingly or maliciously preventing or dissuading a crime victim from providing any one or more of the following forms of assistance to prosecutors: (1) causing a complaint, indictment or information to be sought; (2) causing a complaint to be prosecuted; or (3) assisting in the prosecution.

Statutory Construction: “And” May Mean “Or”
Although “modern sources of authority appear to be generally less inclined to interpret “and” in the disjunctive … it remains true that the legislature has a history of using ‘and’ when the context shows it means ‘or,’” ¶14.

Statutory Construction: Legislative Reference Bureau Analysis Indicative of Legislative Intent
“The LRB’s analysis of a bill is printed with and displayed on the bill when it is introduced in the legislature; as such, it is indicative of legislative intent. See Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, ¶32, 295 Wis. 2d 1, 719 N.W.2d 408,” ¶22.

Statutory Construction: Rule of Lenity

¶26 The rule of lenity comes into play only when a court is unable to clarify the intent of the legislature, see Cole, 262 Wis. 2d 167, ¶67, and we have clarified the legislative intent of Wis. Stat. § 940.44(2) by examining its legislative history. The related rule of strict construction of penal statutes “cannot be used to circumvent the purpose of the statute,” Kittilstad, 231 Wis. 2d at 267, and application of the rule in this case would circumvent the legislative purpose of § 940.44(2).


Intimidation of Crime Victim, § 940.44(2)