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Strangulation and suffocation statute held constitutional

State v. Dallas R. Christel, 2020AP1127-1128-Cr, 12/8/21, District 2 (not recommended for publication); case activity (including briefs)

Christel argued that §940.235, which criminalizes strangulation and suffocation, (1) violates substantive due process on its face and as applied to him, (2) is overbroad, and (3) is void for vagueness. He also argued for a new-factor-based sentence modification on his bail-jumping convictions. The court of appeals torpedoed every claim.

A jury convicted Christel of numerous crimes relating to two incidents where he beat “Emma” and sexually assaulted her while squeezing her neck and putting his hand at her lips. Christel’s defense was that he and Emma had consensual sex and erotic asphyxiation was part of it.

Christel argued that §940.235 violates substantive due process because it attempts to regulate a couple’s fundamental liberty and privacy right to determine how to be physically intimate. The court of appeals rejected this argument as “undeveloped.” Opinion, ¶¶28-35. It also denied Christel’s claim that the statute was unconstitutional “as applied” to the facts of his case because he and Emma had not engaged in consensual sex. Rather, a jury found that he had violently sexually assaulted Emma and attempted to suffocate and strangle her in the process. Opinion, ¶49.

Christel’s overbreadth challenge failed because those challenges generally arise when a statute violates a First Amendment right. He had not demonstrated any fundamental right–let alone a 1st Amendment right–protected by the overbreadth doctrine. Opinion, ¶¶36-39.

Christel’s “void for vagueness” challenge failed for the same reasons that a similar challenge to Wisconsin’s stalking statute failed in State v. Ruesch, 214 Wis. 2d 548, 556, 571 N.W.2d 898 (Ct. App. 1997).

¶45 . . . Like Ruesch, we conclude that Christel’s vagueness “argument rings hollow.” See id. at 562. To be specific, as we explained above, he cites no authority establishing a constitutional right to strangle or suffocate another person during a nonconsensual violent sexual assault. See id. He fails to consider Emma’s rights. See id. And, despite the fact that his “conduct plainly falls within the prohibition of the statute,” he fails to “identify a First Amendment right he was exercising when he” strangled Emma. See id. at 563 (footnote omitted). “And, finally, the inclusion of the element of intent significantly vitiates a claim” that he was not on fair notice as to the conduct prohibited by the statute. See id.

Finally, Christel’s claim for “new factor” based sentence modification failed too. The trial court first sentenced him on convictions for bail jumping and made him eligible for the Substance Abuse Program. Afterward, the jury convicted him of sexual assault, which rendered him ineligible for the SAP. Christel filed a postconviction motion arguing that his conviction and sentencing in the sexual assault case amounted to a “new factor” warranting resentencing on the bail-jumping convictions because it rendered him ineligible to participate in SAP.

The court of appeals noted that it has previously expressed skepticism about whether a subsequent conviction can ever raise a new factor claim in a prior conviction. Opinion, ¶¶52-56  (citing State v. Ramuta, 2003 WI App 80,  261 Wis. 2d 784, 661 N.W.2d 483).

Furthermore, Christel failed to prove a “new” factor–a fact highly relevant to the imposition of sentences that was unknown at the time of the original sentencing. The same judge presided over both of Christel’s sentencings. In fact, at the sentencing for bail-jumping, the court raised the possibility that a conviction for sexual assault would render Christel ineligible for SAP. Opinion, ¶¶51-58.


{ 1 comment… add one }
  • Jerome Buting December 16, 2021, 11:40 am

    This is yet another case (see State v. Dudas) which raises the unsettled question of how the broadly worded WI strangulation statute might infringe on a couple’s consensual BDSM sex, which by the State’s interpretatioin would be completely illegal in this state. Since the court decided the argument was not sufficiently developed (which may or may not be true, it took them 7 paragraphs to say that) it’s probably a good thing the decision is not recommended for publication. But it raises the question: how can the court issue rulings on facial constitutionality and overbreadth of a statute in a clearly unsettled area of the law and yet NOT recommend publication? Isn’t the court of appeals supposed to give guidance to trial courts on recurring issues of law? As BDSM becomes more and more mainstream among couples (see Fifty Shades of Gray) this issue will continue to recur. What does seem to be a recurring phenomenum is court of appeals decisions that are not published, and many even just per curiam decisions. This is an abdication of responsibility to guide lower courts.

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