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Under Wisconsin law, “domestic abuse” charges can be brought for a variety of behavior if committed: against someone’s spouse or former spouse, against an adult with whom the person resides or formerly resided, or against an adult with whom the person has a child in common.
How to defend against domestic abuse charges in Wisconsin depends on the facts specific to your case. In Wisconsin “domestic abuse” is not a standalone crime. Instead, it is an enhancer or modifier added to another charge like battery or disorderly conduct. This means that in order for you to be found guilty, the State would first need to prove the original charge. The State would then need to prove the domestic relationship between the two parties and the intent of the defendant.
When defending against domestic abuse in Wisconsin, the first step is to see if any challenges can be made to the underlying crime. Each crime in Wisconsin has its own unique set of elements. If the case proceeded to a trial, the State would need to be able to convince a jury beyond a reasonable doubt that the defendant’s conduct matches those listed elements.
If the State cannot prove the elements of the original crime beyond a reasonable doubt, the jury must find the defendant not guilty of the offense, and then by default the domestic abuse enhancer/modifier will also be dismissed.
If the State proves the defendant committed the original crime, the State must also be able to show that a qualifying domestic relationship existed in order for a domestic abuse enhancer to be applied. This means that the State would need to show that the defendant committed a crime against any one of the following:
If a domestic relationship does not or did not exist between the defendant and the victim, then the domestic abuse enhancer cannot stand. Finally, if the elements of the crime can be proved and a domestic relationship can be established, the State would still need to show that some sort of harm was done against the victim.
Putting all of this together, the key defenses are:
Even if none of the above defenses fit your case, then there still may be other defenses available. What these defenses are once again depend on the facts specific to your case. For example, if the defendant used reasonable force against a person/victim to prevent harm to themself or to someone else, then a defendant could argue that his or her actions constituted self-defense. In this scenario the defendant’s actions match the element of the crime, a domestic relationship may exist, and it can be shown that the defendant intended to use force, this use of this force may be justified in the eyes of the law for self defense purposes. This is just one of many defenses that can be brought up in trial. Consulting with an attorney may assist a defendant to see what options are available.
Charged with a crime? Don’t wait. Contact Grieve Law now to start building your defense. Whether you need a Milwaukee criminal defense attorney or a criminal defense attorney in Madison or any surrounding areas, you don’t have to fight this alone.
Under Wisconsin law, domestic abuse is not a crime by itself. Instead it is an enhancer or modifier to a crime. The domestic abuse enhancer can be added to a vast range of conduct such as causing physical injury, making threats, stalking, or even engaging in loud arguments. Accusations alone can trigger immediate consequences, including an arrest, no-contact provisions, and the removal of an individual from a shared residence. Because the statutory definitions are so broad, defenses to domestic abuse accusations involve carefully examining the facts, context, and the credibility of the allegations.
Domestic Abuse is defined in Wisconsin State Statute 968.075. Domestic abuse is not a separate crime, but rather it is a charge modifier or enhancer that is applied to an underlying criminal charge. For example, a person may be charged with disorderly conduct, and if the person against whom they are alleged to have committed the disorderly conduct qualifies as a domestic partner, that charge would be modified to include a domestic abuse modifier. The charge would then appear as disorderly conduct – domestic abuse.
According to Wisconsin Statute 968.075 domestic abuse is committed when an adult person engages in behavior against his or her spouse or former spouse, or against an adult with whom the adult person resides or formerly resided, or against an adult with whom the person has a child in common. The behavior must be described as one of the following four items:
In Wisconsin “domestic abuse” is not a standalone crime. Instead, it is an enhancer/modifier added to another charge. This enhancer can be added on to certain misdemeanor charges as well as certain felony level charges. This means that crimes like battery, disorderly conduct, and criminal trespass to property, which are all misdemeanors, could have a domestic abuse enhancer added onto them.
There are also higher level felony crimes such as substantial battery, stalking, strangulation/suffocation, false imprisonment, and sexual assault (1st, 2nd, and 3rd degree) which could also have an additional domestic abuse enhancer added on.
This means that the domestic abuse enhancer can be added to both misdemeanors and felony charges. As long as the State can establish that a domestic relationship exists or existed and that the defendant caused a certain harm within that domestic relationship, a crime may be enhanced with the domestic abuse modifier.
It is also important to note that if a person has been convicted of repeated crimes of domestic abuse in the past, a misdemeanor charge can be increased to a felony charge by way of a domestic abuse repeater enhancer being added to the underlying charge.
Under Wisconsin Statute 973.055, if a defendant is found guilty of any crime with a domestic abuse enhancer, the court shall impose a domestic abuse surcharge of $100.00 for each offense involving domestic abuse.
There may also be mandatory arrest policies in play depending on the law enforcement agency, no-contact orders for 72 hours or longer, and firearm restrictions (both at the state and federal level).
Further, under Wisconsin Statute 939.621, there may be an increased penalty for certain domestic abuse offenses if the defendant is identified as a “repeat offender”. The Statute outlines two ways a defendant can attain the status of a repeat offender:
Under Wisconsin Statute 939.621 anyone convicted as a domestic abuse repeater could have the maximum term of imprisonment increased by two years. This penalty increase immediately raises the status of any misdemeanor offense to the felony level. It is also important to note that the victim of the domestic abuse crime does not have to be the same victim from the previous arrest or conviction.
Wisconsin Statute 940.60 outlines that various types of battery a defendant can be charged with. It states that a misdemeanor battery is committed when the defendant intentionally causes bodily harm to another without that person’s consent. This is a Class A misdemeanor which carries a maximum fine of up to $10,000 dollars and up to 9 months of imprisonment.
A substantial battery is committed when the defendant intentionally causes substantial bodily harm to another person. This is a Class I felony which carries a maximum fine of up to $10,000 dollars and up to 3.5 years of imprisonment.
An aggravated battery is committed when the defendant causes great bodily harm to another person. If the defendant intended to cause bodily harm, then the defendant should be charged with a Class H felony which is punishable by a $10,000 fine and up to 6 years of imprisonment. If the defendant intended to cause great bodily harm then the defendant should be charged with a Class E felony which carries a maximum fine of $50,000 and up to 15 years of imprisonment.
Each of these offenses could have a domestic abuse enhancer added to the charge if the offense is committed against a person who meets the requirements for a domestic relationship.
Referring to Wisconsin Statute 940.225, there are four degrees of sexual assault. These degrees are detailed in our 4 Degrees of Sexual Assault article.
Generally, a 1st degree sexual assault is a Class B felony, a 2nd degree sexual assault is a Class C felony, a 3rd degree sexual assault is a Class G felony, adn a 4th degree sexual assault is a Class A misdemeanor. Any of these crimes can be charged alongside a domestic abuse enhancer if the crime was committed against someone the defendant has a domestic relationship with.
The crime of stalking is covered in Wisconsin Statute 940.32. Generally speaking, stalking is a Class I Felony with a maximum potential fine of $10,000 and up to 3.5 years of imprisonment.
However, stalking could be a Class H Felony if:
Stalking at the Class H felony level carries a maximum fine of $10,000 and up to 6 years of imprisonment.
Finally, stalking could also be a Class F felony if:
If the stalking rises to a Class F felony, the maximum penalty is a fine of $25,000 and up to 12.5 years of imprisonment.
Strangulation is codified in Wisconsin Statute 940.235. Strangulation is generally a Class H felony with a maximum fine of $10,000 and up to 6 years prison,
However, strangulation could also be charged as a Class G felony if there is a prior violent crime or a previous strangulation conviction on the defendant’s record. As a Class G felony, this crime carries a maximum fine of $25,000 and up to 10 years prison.
Victim intimidation in WIsconsin could be either a misdemeanor or felony charge.
Under Wisconsin Statute 940.44, victim intimidation is a misdemeanor charge when someone knowingly and maliciously prevents or dissuades, or attempts to to prevent or dissuade, another person who has been the victim of any crime or who is acting on behalf of the victim from doing any of the following:
Making any report of the victimization to any peace officer or state, local or federal law enforcement or prosecuting agency, or to any judge.
Causing a complaint, indictment, or information to be sought or prosecuted, or assisting in the prosecution thereof.
Arresting or causing or seeking the arrest of any person in connection with the victimization.
This crime is a Class A misdemeanor that carries a maximum fine of $10,000 and up to 9 months in jail. A common situation that leads to this charge occurs when, during an argument, one person takes the phone of another person, therefore preventing that person from calling for help.
Oftentimes a victim of a domestic abuse situation may seek relief by filing a restraining order against the aggressor. The individual filing the request for the restraining order would be the petitioner and the individual who responds to this request is the respondent. In court a commissioner or judge would need to determine if the alleged acts or conduct of the respondent are sufficient to show domestic abuse. If the restraining order is granted by the court the respondent will be required to avoid the petitioner, the petitioner’s residence, the petitioner’s place of employment, and contact with the petitioner as determined by the court.
If an individual is found violating the terms of the restraining order, a criminal charge may be issued against them. This crime is a Class A misdemeanor that carries a maximum fine of $10,000 and up to 9 months in jail.
