Wisconsin

 
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The Laws That Should Protect Our Children

Current Civil SOL in a nutshell

SOL vs. perp: Age 35 SOL vs. employer: +2 years from majority = Age 20 Majority Tolling: Age 18 Discovery Tolling: ?

SOL: Victim’s 35th Birthday, vs. perp and derivative 3rd party claims only. (Applies to negligence claims as they are derivative, but not fraud claims as they are not)

  1. Wis. Stat. Ann. § 893.587 (“An action to recover damages for injury caused by an act that would constitute a violation of s. 948.02, 948.025, 948.06, 948.085, or 948.095 or would create a cause of action under s. 895.442 shall be commenced before the injured party reaches the age of 35 years or be barred.

  2. Because None of the statutes listed in Wis. Stat. § 893.587 referred to the act complained of in the complaint, i.e., that an archdiocese made fraudulent misrepresentations that it did not know that priests had histories of sexually abusing children and did not know the priests were dangerous to children, the statute of limitations for sexual abuse of a child did not apply to the fraud claims against the archdiocese. John Doe 1 v. Archdiocese of Milwaukee, 303 Wis. 2d 34, 734 N.W.2d 827, 2007 Wisc. LEXIS 424, 2007 WI 95 (Wis. 2007).

a. Wis. Stat. Ann. § 893.93(1)(B) (2010) (“The following actions shall be commenced within 6 years after the cause of action accrues or be barred . . . An action for relief on the ground of fraud. The cause of action in such case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud.”) John Doe 1 v. Archdiocese of Milwaukee, 734 N.W.2d 827, 846 (Wis. 2007).

TOLLING

  1. Majority,

a. Wis. Stat. Ann. § 893.16(1)

  1. Discovery, No, EXCEPT as to incest survivors, then knowledge only (narrow)– LIMITED discovery tolling only available to incest survivors

a. John Doe 1 v. Archdiocese of Milwaukee, 2007 WI 95, P23, 303 Wis. 2d 34, 54-55, 734 N.W.2d 827, 836, 2007 Wisc. LEXIS 424, 18 (Wis. 2007)(“We hold that a claim of repressed memory of past sexual abuse does not delay the accrual of a cause of action for non-incestuous sexual assault, regardless of the victim’s Majority and the position of trust occupied by the alleged perpetrator. “)

i. Wis. Stat. § 893.587. Sexual assault of a child; limitation. An action to recover damages for injury caused by an act that would constitute a violation of s. 948.02, 948.025, 948.06, 948.085, or 948.095 or would create a cause of action under s. 895.442 shall be commenced before the injured party reaches the age of 35 years or be barred. (Held to be its own SOR outside of incent context).

b. Cheryl D. v. Estate of Robert D.B. (In re Estate of Robert D.B.), 207 Wis. 2d 548, 558, 559 N.W.2d 272, 276-277, 1996 Wisc. App. LEXIS 1613, 13 (Wis. Ct. App. 1996) (discovery rule for incest survivors “does not mean that a plaintiff can delay action until the extent of the injury is known, but only, consistent with the explanation of the discovery rule that the statute of limitations does not begin to run until the plaintiff has sufficient evidence that a wrong has indeed been committed by an identified person.”)

c. Byearne v. Bercker, 176 Wis. 2d 1037, 1042, 501 N.W.2d 402, 404, 1993 Wisc. LEXIS 543, 8 (Wis. 1993) (“We hold, as a matter of law, that a cause of action for incestuous abuse will not accrue until the victim discovers, or in the exercise of reasonable diligence should have discovered, the fact and cause of the injury.”)

Current Criminal SOL in a nutshell

None for 1st degree sexual assault, attempted 1st degree sexual assault or engaging in repeated acts of sexual assault of the same child. Wis. Stat. § 939.74 (2)(a). Victim’s age 45 for most other crimes. Wis. Stat. § 939.74 (2)(c). Wis. Stat. § 939.74 (2) (a)(1)-(2) (“Notwithstanding that the time limitation under sub. (1) has expired: (a)

  1. A prosecution under s. 940.01, 940.02, 940.03, 940.05, 940.225 (1), 948.02 (1), or 948.025 (1) (a), (b), (c), or (d) may be commenced at any time.

  2. A prosecution for an attempt to commit a violation of s. 940.01, 940.05, 940.225 (1), or 948.02 (1) may be commenced at any time

§ 940.225 (1) FIRST DEGREE SEXUAL ASSAULT

§ 948.02 (1) FIRST DEGREE SEXUAL ASSAULT OF A CHILD

(am) Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years and causes great bodily harm to the person is guilty of a Class A felony.

(b) Whoever has sexual intercourse with a person who has not attained the age of 12 years is guilty of a Class B felony.

(c) Whoever has sexual intercourse with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony.

(d) Whoever has sexual contact with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony if the actor is at least 18 years of age when the sexual contact occurs.

(e) Whoever has sexual contact with a person who has not attained the age of 13 years is guilty of a Class B felony.

§ 948.025 (1) (a)-(d). Engaging in repeated acts of sexual assault of the same child.

(1) Whoever commits 3 or more violations under s. 948.02 (1) or (2) within a specified period of time involving the same child is guilty of:

(a) A Class A felony if at least 3 of the violations were violations of s. 948.02 (1) (am).

(b) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1) (am), (b), or (c).

(c) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1) (am), (b), (c), or (d).

(d) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1).

(e) A Class C felony if at least 3 of the violations were violations of s. 948.02 (1) or (2). (SOL for this subsection e is likely to age 45).

Age of Majority: 18, unless being prosecuted or a civil defendant (then 17). See, Wis. Stat. Ann. § 938.02(1).
Age of Consent: 16. See, Wis. Stat. Ann. § 948.02.

Age of Marriage with Parental Consent: 16.
Age of Marriage without Parental Consent: 18.
See, Wis. Stat. Ann. § 765.02.


Medical Neglect Statute

CIVIL MEDICAL NEGLECT STATUTE

[A] determination that abuse or neglect has occurred may not be based solely on the fact that the child’s parent, guardi¬an or legal custodian in good faith selects and relies on prayer or other religious means for treatment of disease or for remedial care of the child. Wisconsin Statutes §48.981(3)(c)(4)

CRIMINAL MEDICAL NEGLECT STATUTE

WISCONSIN defense to criminal child abuse

A person is not guilty of an offense under this section solely because he or she provides a child with treatment by spiritual means through prayer alone for healing in accordance with the religious method of healing permitted under s.48.981(3)( c)(4) or 448.03(6) in lieu of medical or surgical treatment. Wisconsin Statutes §948.03(6)

In 2013 the Wisconsin Supreme Court upheld convictions of parents who had let their daughter die of untreated diabetes on religious grounds and ruled that the religious defense did not apply to children with life-threatening illnesses. One justice dissented concluding, “I cannot say that the result of the Newman trials is unjust. Nonetheless, there were and are serious deficiencies in the law and they ought to be addressed by the legislature and the courts.” State v. Neumann, 832 NW2d 560 (Wisc. 2013)


Religous Liberty Statute

Religious liberty statute that could put children at risk

No law as of January 2014