Vol. 82, No. 3, March 2009
he Wisconsin Supreme Court recently decided a complex criminal statute of limitation question in State v. MacArthur.1 The author of this article represented defendant MacArthur, an 86-year-old priest charged in January 2006 with having had sexual intercourse and engaging in indecent behavior with three minor girls between 1965 and 1972.2 MacArthur argued that the relevant statute of limitation was the one in Wis. Stat. section 939.74(2)(c) and that because this limitation had expired, he could not be prosecuted. Rejecting MacArthur’s arguments, the supreme court, in an opinion authored by Justice Ziegler, concluded that the legislature’s repeated expansions of the statute of limitation in child sexual assault cases apply only to defendants charged under Wis. Stat. chapter 948, effective July 1, 1989, and not to defendants like MacArthur charged under previous statutes criminalizing sexual contact with a minor. In practice, however, the supreme court’s decision actually might mean that some child sexual assault defendants have been wrongly prosecuted under an expanded statute of limitation and that some as-yet-undetected defendants may escape prosecution.
History of Child Sex Crimes Laws
Wisconsin has always severely punished sexual contact with children. Until 1975, the conduct was criminalized by and punished under Wis. Stat. chapter 944.3 Starting in 1975, the conduct was criminalized by and punished under Wis. Stat. section 940.225.4 Since July 1, 1989, the conduct has been criminalized by and punished under chapter 948.5 Under chapter 944 and section 940.225, the statute of limitation for the crime was six years.6 When creating chapter 948, the legislature began addressing inherent problems in sex crimes prosecutions involving children by expanding the statute of limitation so that it was based on the victim’s age instead of the standard six years. It was thought that problems occasioned by a victim’s young age, vagueness of memories, difficulties with communicating, explorations through therapy, and so on would be ameliorated by expanding the statute of limitation.
In the legislature’s first expansion of the statute of limitation, the legislature made the limit the later of six years after the offense or the day before the victim’s 21st birthday.7 However, the legislature made this first expansion applicable only to “offenses occurring on or after the effective date,”8 namely July 1, 1989. In later years, the legislature further expanded the statute of limitation for child sexual assault to the victim’s age 26 (effective April 22, 1994); to age 31 (effective June 17, 1998); to age 45 (effective May 1, 2004); and, for certain allegations of first-degree sexual assault, to the victim’s lifetime (effective April 20, 2006).9 However, for each of these further expansions, the legislature did not limit the expansion to “offenses committed on or after the effective date” of the expansion. Instead, the legislature made these expansions retroactive, saying that they applied “to offenses not barred from prosecution on the effective date.”10 (See Figure 1.) In 2003, the Wisconsin Supreme Court concluded in State v. Haines11 that the legislature’s 1994 retroactive expansion, and thus presumably all the legislature’s other retroactive expansions effective after 1994, did not violate a defendant’s constitutional rights, as long as the prior statute of limitation for the defendant’s crimes was still running when the expansion became effective.12
The MacArthur Case
In January 2006, MacArthur was charged under chapter 944 of the 1965 Wisconsin Statutes. The six-year statute of limitation that was in effect from 1965 to 1972,13 when the crimes were alleged to have been committed, would have expired by 1978 and thus prohibited prosecution of MacArthur. However, the state alleged that MacArthur ceased being a resident of Wisconsin in 1970, and, therefore, the tolling provision14 kept the six-year statute of limitation from expiring. In response, MacArthur argued that, even if he was not a resident of Wisconsin, he still could not be prosecuted because the applicable statute of limitation was the one in effect in January 2006 (hereinafter victim-age-45 statute of limitation), when prosecution of him began. This statute of limitation says: “A prosecution for violation of s. 948.02 ... shall be commenced before the victim reaches the age of 45 years or be barred....”15 Each of MacArthur’s alleged victims was over age 45 in January 2006.
The circuit court rejected MacArthur’s argument that the expanded statute of limitation, tied to the age of the victim, trumped the six-year statute of limitation and its tolling provision. MacArthur filed an interlocutory appeal with the court of appeals on the issue of whether the victim-age-45 statute of limitation applied to him.16 The court of appeals accepted the appeal but certified the case to the supreme court.
Most of MacArthur’s argument to the supreme court consisted of statutory interpretation. The supreme court followed the state’s recommendation to interpret the expanded statute of limitation by its “plain language,” and the court concluded that the victim-age-45 statute of limitation did not apply to MacArthur because he was not charged under Wis. Stat. chapter 948, which took effect July 1, 1989.
Alex Flynn, Marquette 1984, is the principal in Alex Flynn & Associates S.C., Milwaukee. He practices civil and criminal litigation in federal and state courts throughout Wisconsin. Visit him at www.alexflynn.com.
The supreme court said that all of the legislature’s expansions of the statute of limitation were explicitly tied to violations of the present statute, chapter 948, not to any predecessor statutes prohibiting sexual assault of a child. MacArthur was charged with violating chapter 944 (1965-72) of the statutes, not with violating chapter 948. Another problem for Mac-Arthur’s argument was the fact that the legislature had repealed chapter 944 in 1975,17 when it created Wis. Stat. section 940.225 to include sex crimes against children.18 MacArthur contended to the supreme court that the 1975 legislature showed by several of its actions that it did not really intend to repeal chapter 944 but instead intended to repeal, recreate, and renumber the chapter 944 violations as the new Wis. Stat. section 940.225. He also relied on the fact that later, in 1987, when the legislature repealed subsections of section 940.225 dealing with children and enacted the present chapter 948, the legislature explicitly said that the repealed subsections of section 940.225 were “transferred” to and “revised” in the new chapter 948.19 Thus, MacArthur argued that a line could be traced joining the old chapter 944 crimes to the present chapter 948 crimes and, as a result, his alleged violation of chapter 944 was constructively a violation of the present chapter 948. Therefore, the recent expansions of the statute of limitation for violations of chapter 948 crimes applied to him and barred prosecution of him because his alleged victims were over age 45 in January 2006.
The Wisconsin Supreme Court disagreed and concluded that the reference to chapter 948 in the expanded statute of limitation must be interpreted literally, not constructively.20 According to the court, when the expanded statute says “a prosecution for violation of s. 948...,”21 it means only chapter 948. The statute’s plain language does not encompass any predecessor statutes to chapter 948.22 Therefore, MacArthur’s prosecution could proceed because he was not charged under chapter 948, and so the victim age limit in the expanded statute of limitation in section 939.74(2)(c) did not apply to him. Thus, the supreme court reached a conclusion that allowed the prosecution of MacArthur to continue.
But by allowing the prosecution to go forward, the MacArthur court might actually have defeated the will of the legislature regarding other past and future defendants also charged under old statutes. By focusing on the “plain language” of the statute, instead of the apparent legislative intent, the court’s opinion did not consider the policy implications of its decision, namely that defendants charged with sexual assault of minors under predecessor statutes to chapter 948 could not be prosecuted under the expanded statute of limitation tied to chapter 948. Cognizant of the policy problem, Justice Ann Walsh Bradley wrote in a concurring opinion that, “I am concerned that in an effort to save this prosecution, the State (and thus the majority) is actually undermining the prosecution of other child sexual assault cases.”23 Justice Bradley then outlined the problems with the majority decision.24
In addition to Justice Bradley’s concerns, the following should also be considered. Some child sexual assault defendants who were prosecuted under an expanded statute of limitation and are now serving time in prison should have their convictions reviewed and potentially vacated because the expanded statute of limitation in section 939.74(2)(c) was wrongly applied to them. Moreover, some as-yet-undetected child sexual assault defendants cannot be prosecuted under the present expanded statute of limitation.
Statutes of Limitation for Child Sexual Assault Defendants
||Criminalized & Punished under Wisconsin Statute
||Statute of Limitation |
||6 years (standard time)|
|Starting in 1975 to June 30, 1989
||6 years (standard time)|
|Starting July 1, 1989
||Later of 6 years after offense or day before victim’s 21st birthday – applies only to “offenses occurring on or after the effective date” of July 1, 1989|
|April 22, 1994
||* Expanded to victim’s age 26|
|June 17, 1998
||* Expanded to victim’s age 31|
|May 1, 2004
||* Expanded to victim’s age 45|
|April 20, 2006
||* Expanded to victim’s lifetime (for certain offenses)|
* Legislature made expansion retroactive, applies “to offenses not barred from prosecution on the effective date”
Because of the legislature’s repeated expansions of the statute of limitation for child sexual assault, in recent years several defendants have been prosecuted for offenses that occurred many years ago, under the theory that prosecution was still possible if the victim was under the specified age limit in the expanded statute of limitation. However, since the supreme court decided in MacArthur that the expanded statute of limitation applies literally only to crimes charged under Wis. Stat. chapter 948, and not to crimes charged under predecessor sexual assault statutes, some of those defendants charged under predecessor statutes should not have been prosecuted. If a defendant was charged under a child sex assault statute number not in chapter 948, but the prosecution applied the expanded statute of limitation for chapter 948 crimes, that defendant was deprived of the protections of the proper statute of limitation for the crime. Any defendant who was accused of sexually assaulting a minor before July 1, 1989, who was a public resident of Wisconsin for a total of six years before prosecution commenced, but who was prosecuted under an expanded statute of limitation effective on or after July 1, 1989, might have his or her conviction vacated. Because such a defendant’s crime did not come under the expanded statute of limitation, the standard six-year statute of limitation would have barred the defendant’s prosecution because the time limit would have expired before the prosecution had begun.
For example, a fictional defendant charged in October 1994 with committing child sexual assault against an 8-year-old child in May 1988 would have been charged under Wis. Stat. section 940.225 because Wis. Stat. chapter 948 was not effective until July 1, 1989.25 Thus, the statute of limitation applicable to that defendant would have been the six-year statute, and that six-year statute of limitation would have expired in May 1994. However, when the prosecution began in October 1994, the prosecutor knew that the legislature had recently expanded the statute of limitation to the victim’s age 26 for child sexual assaults “not yet barred from prosecution.”26 If both the prosecutor and defense counsel assumed that the expanded, victim-age-26 statute of limitation applied to all sexual assaults of children, no matter what statute number was violated, that defendant would have been mistakenly charged in October 1994, even though the correctly applicable six-year statute of limitation had expired for him five months before prosecution was started. The supreme court’s MacArthur decision makes it clear that this defendant could not be prosecuted after May 1994, because the legislature’s expansion of the statute of limitation did not apply to him since the expansion applied only to crimes violating chapter 948. Convictions with similar fact patterns should be reviewed for their legitimacy.
The supreme court’s decision in MacArthur also means that, in the future, some as-yet-undetected child sexual assault defendants may escape prosecution altogether, while other defendants may be prosecuted without any time limit. The difference depends on whether the alleged crime occurred before or after July 1, 1989. The fact that not all future defendants accused of sexual assault of minors will be treated the same was a concern Justice Bradley recognized in MacArthur.27 Any defendant accused of committing a sex assault crime against a minor on or after July 1, 1989 will be charged with a chapter 948 crime. For a chapter 948 crime, the defendant will come under a victim-age-45 statute of limitation for second-degree sexual assault,28 or, for certain charges of first-degree sexual assault, will come under a no- age-limit statute of limitation, which permits prosecution to be initiated at any time.29 In contrast, defendants accused of committing sexual assault against a minor before July 1, 1989 will come under a six-year statute of limitation, subject only to the tolling provision. The following two fictional examples illustrate the different statutes of limitation for future child sexual assault defendants after MacArthur.
Example 1. Defendant A, a 17-year-old girl, had sexual contact on July 1, 1989 with a 14-year-old boy. The defendant came under the first legislative expansion of the statute of limitation, effective July 1, 1989, which allowed prosecution no later than the victim’s age 21. On April 21, 1994, the effective date of the second legislative expansion,30 the victim was not yet 21 years old. Thus, the statute of limitation was still running for Defendant A. The second expansion allowed prosecution to the victim’s age 26 and retroactively applied the expansion to “offenses not barred from prosecution on the effective date.”31 Because Defendant A’s offense was not yet barred from prosecution, since the victim was not yet 21, Defendant A came under the newly expanded statute and could be prosecuted to the victim’s age 26.32 In 1998, the legislature expanded the statute of limitation to the victim’s age 31.33 Again, in 2004, the legislature expanded it to the victim’s age 45.34 Defendant A’s alleged victim was under 26 in 1994, under 31 in 1998, and under 45 in 2004. This means that Defendant A would be liable for prosecution until 2020, when the victim will be 45, for the July 1, 1989 crime of a 17-year-old girl having sexual contact with a 14-year-old boy. If the boy had been just a little younger, one day before his 13th birthday, when the crime occurred, the offense would be first-degree sexual assault. In that situation, starting in April 2006 when the legislature abolished the statute of limitation for first-degree sexual assault of a minor,35 Defendant A could be prosecuted for the rest of the victim’s life for the crime, even if Defendant A always remained a public resident of Wisconsin.
Example 2. However, the same rules do not apply to fictional Defendant B, a 35-year-old man who raped a 5-year-old girl on June 30, 1989. Wis. Stat. chapter 948 was not yet effective on June 30, 1989, and so none of the age-based expansions of the statute of limitation for chapter 948 crimes apply to Defendant B. If Defendant B was a Wisconsin resident for a total of six years between March 1989 and the present, the defendant cannot be prosecuted for the rape of the 5-year-old girl that occurred on June 30, 1989, even though there is presently no statute of limitation for prosecution for such a child sexual assault when it violates Wis. Stat. chapter 948, whose effective date was July 1, 1989.
The legislature cannot rectify the unequal application of the law in prosecuting defendants alleged to have committed child sexual assault. In spite of the almost boundless statute of limitation against such defendants in the present, there is no way to reach back and prosecute every person who has ever committed the crime of sexual assault against a child. Even if the legislature now changes the law so that the recent expansions of the statute of limitation for sex crimes against children apply both to violations of chapter 948 and to violations of the predecessor statutes of chapter 948 that prohibited sex crimes against children, namely chapter 944 and section 940.225, this would not create a net to keep current, wrongly-prosecuted defendants from seeking relief or to increase the number of defendants who could be prosecuted in the future. It would catch no more defendants than does the present tolling statute, which keeps the old six-year tolling statute running for defendants who have left the state.
The legislature cannot retroactively reverse a six-year statute of limitation that has already expired for a Wisconsin resident who has never been prosecuted, since Haines says that “once a statute of limitations has run, the party relying on the statute has a vested property right in the statute-of-limitations defense.”36
If the supreme court had accepted MacArthur’s reasoning that chapter 948 constructively includes predecessor child sexual assault statutes, an 86-year-old man would have escaped prosecution for allegations that he had sexual contact with three minor girls between 1965 and 1972. After MacArthur, this man faced prosecution, but other defendants who have been convicted of sexual assault of minors may be able to have their convictions overturned and go free. Moreover, other persons not yet charged will be subject to different statutes of limitation, depending on whether the child sexual assault was committed before or after July 1, 1989.