In WI now 13 year old children can consent to sexual intercourse
Sex offender can’t plead to unrelated charge
by David Ziemer - November 20, 2008
Case: State v. Zeise, No. 2008AP733-CR
Issue: Can a defendant charged with consensual sexual intercourse with a minor enter an Alford plea to sexual assault under sec. 948.02?
Holding: No. An Alford plea requires strong proof of guilt, which is not present if the intercourse was consensual in fact.
Attorneys: For Appellant: Rick B. Meier, Kewaunee; For Respondent: Gregory M. Weber, Madison.
An opinion issued by the Wisconsin Court of Appeals last week may make it more difficult to plead defendants charged with sexually assaulting a child to reduced charges.
Thomas L. Zeise was charged with sexual assault of a child under 16, in violation of sec. 948.02(2), a felony. According to the complaint, the victim (age 13) consented to sexual intercourse.
As part of a plea agreement, Zeise entered an Alford plea to a misdemeanor charge of fourth-degree sexual assault in violation of sec. 940.225(3m).
The elements of that offense are: (1) the defendant had sexual contact with the victim; and (2) the victim did not consent to the sexual contact.
In contrast, the sexual assault of a child statute makes it a strict liability offense to have sexual contact with any person under age 16, regardless of consent.
After sentencing, Zeise moved to withdraw his plea, but Oconto County Circuit Court Judge Michael T. Judge denied the motion.
Zeise appealed, and the Court of Appeals reversed, in an opinion by Judge Edward R. Brunner, holding that the Alford plea lacked a sufficient factual basis.
The court noted that, when a defendant enters an Alford plea -– pleading guilty but not admitting guilt -– there must be “strong proof of guilt” to establish a factual basis. State v. Smith, 202 Wis.2d 21, 549 N.W.2d 232 (1996).
The court rejected Zeise’s argument that there was no factual basis because, as a matter of law, a child under 16 is incompetent to give consent.
However, the court agreed that there was an insufficient factual basis to support the Alford plea.
The court concluded that strong evidence of guilt for the nonconsent element was missing, because the only evidence was the victim’s age.
Judge Brunner wrote, “Aside from the victim’s age, the [s]tate did not provide any evidence indicating the victim was incompetent to give informed consent. For instance, there is no evidence of expert testimony on child development or evidence that the victim had not yet received sexual education in school. While the [s]tate asserted the victim could not consent as a matter of law, it failed to identify any law supporting that assertion.”
The court then distinguished the case of State v. Harrell, 182 Wis. 2d 408, 513 N.W.2d 676 (Ct.App. 1994).
In Harrell, as in the case at bar, the defendant was charged with sexual assault of a child, and based on that conduct, entered a plea agreement to a charge of sexual assault under sec. 940.225.
The court of appeals held in Harrell that there was a sufficient factual basis, because of the practicalities of plea bargaining, in which the charges to which defendants plead guilty don’t always match the actual conduct.
Nevertheless, Judge Brunner distinguished Harrell, concluding it does not apply when a defendant enters an Alford plea, rather than a guilty plea, because of the stricter requirement of “strong proof of guilt” that the Supreme Court adopted in Smith.
Brunner further noted that sexual assaults of children under sec. 948.02 and sexual assaults generally under sec. 948.225 are not classified as related crimes under sec. 939.66, but are treated separately.
Although the opinion is a one-judge opinion ineligible for publication, attention should be paid to it to avoid potentially illegal plea agreements.
The opinion goes beyond the Supreme Court’s holding in Smith, which also involved a sex crime with an underage victim. The defendant in Smith was charged with forcible sexual assault of a 16-year-old. He entered an Alford plea to child enticement, one element of which is that the victim be under the age of 16.
Because the defendant in Smith entered an Alford plea, to an offense it was impossible to commit given the age of the victim, the Supreme Court held the plea invalid.
In the case at bar, Zeise was also charged with an underage sex crime. The offense to which he entered the Alford plea was one which is usually only applied when an adult victim is involved.
However, nothing in sec. 948.02 specifically limits its application to adults.
Instead, given the ease of proving the victim’s age, and the difficulties in proving lack of consent, the offense he entered the plea to is simply one which he would never actually be charged with in practice.
Thus, the court’s opinion extends Smith, beyond offenses that are a legal impossibility, to all offenses where the facts don’t meet the elements of the crime.
Thus, the opinion should be read as barring Alford pleas to charges under sec. 948.225 when the victim is underage, and the sexual activities are consensual in fact.
The opinion did allow for some leeway to suggest that such plea agreements could past muster.
The court wrote that, if there was “expert testimony on child development or evidence that the victim had not yet received sexual education in school,” then there could have been a factual basis for the plea.
As a practical matter, however, it is highly unlikely that the state will ever bring in experts to testify at Alford plea hearings in cases like this.
More likely, the state (and circuit court) will simply inform defendants that an Alford plea is not an option -– he can either plead guilty to the reduced offense, whether the facts meet the elements or not, or he can go to trial on the more serious charge.
Attention should also be paid to a footnote in the opinion that suggests Harrell may not be valid precedent.
Footnote 10 states, “Additionally, it is questionable whether the Harrell rule is viable precedent. Harrell, 182 Wis. 2d 408. As the jury instruction committee correctly observes, Harrell ‘flatly contradicts’ the prior holding in State v. Harrington, 181 Wis. 2d 985, 990-91, 512 N.W.2d 261 (Ct. App. 1994). Wis JI—Criminal SM-32, n.24. Harrington was released January 27, 1994, and ordered published February 22, 1994. Harrell was released February 15, 1994, and ordered published March 29, 1994. Further, the Harrell rule has never been applied in any published Wisconsin case; Harrell was distinguished and thus not applied in State v. Smith, 202 Wis. 2d 21, 27-28, 549 N.W.2d 232 (1996), and State v. West, 214 Wis. 2d 468, 480-81, 571 N.W.2d 196 (Ct. App. 1997).”
If Harrell is not valid law, and Harrington states the correct rule of law, then even a guilty plea to an offense under sec. 948.225 would be barred for sexual assaults of children, where the sexual activity is consensual in fact.