By Margo Kirchner
The Wisconsin Supreme Court last week approved felony charges against an adult for conduct allegedly committed when he was eight or nine years old – too young to be accused of juvenile delinquency.
In likely one of his last opinions before his term ends, Justice Michael J. Gableman wrote that a defendant’s age at the time he is charged, not his age at the time of the underlying conduct, determines how charges can be brought.
Justice Ann Walsh Bradley, in a concurring opinion, disagreed with Gableman’s reasoning. She said it was “absurd to conclude the legislature intended that criminal liability can attach for acts engaged in by children ages zero-ten. The majority’s conclusion to the contrary defies the purpose and structure of our statutes, as well as the rationale of prior case law.”
As noted by the Court, misconduct of a child under 10 years old generally is treated as a case of a juvenile in need of protection or services (JIPS), misconduct of a child aged 10 through 16 generally is addressed as a matter of juvenile delinquency, and misconduct of someone 17 or older is charged in adult court. Prior case law allowed for the charging of some JIPS-age conduct as juvenile delinquency, and statutes delineate the process for moving cases between juvenile court and adult court.
But until Friday the law did not clearly provide that conduct committed when a person was of JIPS age could be prosecuted years later in adult criminal court.
The state charged Shaun Sanders in adult court with four counts of misconduct involving his younger sister; at the time of prosecution Sanders was 19 years old. Count one charged that during a period of time beginning when Sanders was eight or nine years old he had sexually assaulted his sister, then six or seven, by having her lift her shirt for what Sanders called a “peek.” The jury acquitted Sanders of that charge but convicted him of sexual assault, incest, and child enticement for misconduct with his sister that occurred when Sanders was between 14 and 18 years old.
Sanders believed that admission of the count one allegations and evidence impacted the jury’s verdict on the other counts. He argued to the Supreme Court that his attorney was ineffective for not seeking dismissal of count one based on his JIPS age at the time of the alleged conduct.
The court found that any motion to dismiss count one would have been meritless. “The defendant’s age at the time he was charged, not his age at the time he committed the underlying conduct, determines whether the circuit court has statutory competency to hear his case as a criminal, juvenile delinquency, or JIPS matter,” wrote Gableman.
According to the Court, the six-year statute of limitations for most felonies, the need for the state to prove intent for many crimes, and constitutional protections against intentional delays provide sufficient safeguards for defendants like Sanders.
Bradley, joined by Justice Shirley S. Abrahamson, agreed that Sanders’s attorney was not ineffective because the law regarding prosecution of JIPS-age conduct in adult court was previously unclear, but Bradley called the majority’s logic “out of step” with the law governing children’s liability. She noted that laws addressing child misconduct were designed to treat the child’s condition, not punish. Moreover, she said, by statute a child under age seven is “‘conclusively presumed’ to be incapable of negligence,” yet the Court ascribes criminal intent to the same-aged child.
Further, she said the majority misread prior case law in reaching its decision and noted the “safeguards” listed in Gableman’s opinion did not protect Sanders.
She urged the State Legislature to reexamine the law and rectify the majority’s decision.
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