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Section 971.37 – Deferred prosecution programs; domestic abuse and child sexual abuse

May 14, 2021 | Criminal Procedure, Wisconsin

(1) In this section, “child sexual abuse” means an alleged violation of s. 940.225, 948.02, 948.025, 948.05, 948.06, 948.085, or 948.095 if the alleged victim is a minor and the person accused of, or charged with, the violation:

(a) Lives with or has lived with the minor;
(b) Is nearer of kin to the alleged victim than a 2nd cousin;
(c) Is a guardian or legal custodian of the minor; or
(d) Is or appears to be in a position of power or control over the minor.
(1m)

(a) The district attorney may enter into a deferred prosecution agreement under this section with any of the following:

1. A person accused of or charged with child sexual abuse.
2. An adult accused of or charged with a criminal violation of s. 940.19, 940.20(1m), 940.201, 940.225, 940.23, 940.285, 940.30, 940.42, 940.43, 940.44, 940.45, 940.48, 941.20, 941.30, 943.01, 943.011, 943.14, 943.15, 946.49, 947.01(1), 947.012 or 947.0125 and the conduct constituting the violation involved an act by the adult person against his or her spouse or former spouse, against an adult with whom the adult person resides or formerly resided or against an adult with whom the adult person has created a child.
3. A person accused of or charged with a violation of s. 813.12(8) (a).
(b) The agreement shall provide that the prosecution will be suspended for a specified period if the person complies with conditions specified in the agreement. The agreement shall be in writing, signed by the district attorney or his or her designee and the person, and shall provide that the person waives his or her right to a speedy trial and that the agreement will toll any applicable civil or criminal statute of limitations during the period of the agreement, and, furthermore, that the person shall file with the district attorney a monthly written report certifying his or her compliance with the conditions specified in the agreement. The district attorney shall provide the spouse of the accused person and the alleged victim or the parent or guardian of the alleged victim with a copy of the agreement.
(c)

1. The agreement may provide as one of its conditions that an adult covered under par. (a) 2. or 3. pay the domestic abuse surcharge under s. 973.055 and, if applicable, the global positioning system tracking surcharge under s. 973.057. If the agreement requires the person to pay the global positioning system tracking surcharge under s. 973.057, the agreement shall also require the person to pay the domestic abuse surcharge under s. 973.055. Payments and collections of the domestic abuse surcharge and the global positioning system tracking surcharge under this subdivision are subject to s. 973.055(2) to (4) or to s. 973.057(2) and (3), respectively, except as follows:

a. The district attorney shall determine the amount due. The district attorney may authorize less than a full surcharge if he or she believes that full payment would have a negative impact on the offender’s family. The district attorney shall provide the clerk of circuit court with the information necessary to comply with subd. 1. b.
b. The clerk of circuit court shall collect the amount due from the person and transmit it to the county treasurer.
2. If the prosecution is resumed under sub. (2) and the person is subsequently convicted, a court shall give the person credit under s. 973.055 and, if applicable, s. 973.057 for any amount paid under subd. 1.
(2) The written agreement shall be terminated and the prosecution may resume upon written notice by either the person or the district attorney to the other prior to completion of the period of the agreement.
(3) Upon completion of the period of the agreement, if the agreement has not been terminated under sub. (2), the court shall dismiss, with prejudice, any charge or charges against the person in connection with the crime specified in sub. (1m), or if no such charges have been filed, none may be filed.
(4) Consent to a deferred prosecution under this section is not an admission of guilt and the consent may not be admitted in evidence in a trial for the crime specified in sub. (1m), except if relevant to questions concerning the statute of limitations or lack of speedy trial. No statement relating to the crime, made by the person in connection with any discussions concerning deferred prosecution or to any person involved in a program in which the person must participate as a condition of the agreement, is admissible in a trial for the crime specified in sub. (1m).
(5) This section does not preclude use of deferred prosecution agreements for any alleged violations not subject to this section.

Wis. Stat. ยง 971.37

Amended by Acts 2015 ch, 172,s 215, eff. 3/2/2016.
Amended by Acts 2015 ch, 172,s 214, eff. 3/2/2016.
1979 c. 111; 1981 c. 88, 366; 1983 a. 204; 1987 a. 27; 1987 a. 332 s. 64; 1991 a. 39; 1993 a. 227, 262, 319; 1995 a. 343, 353, 456; 1997 a. 35, 143; 2003 a. 139; 2005 a. 277; 2011 a. 35, 266.

Subd. 1. (intro.) is amended eff. 7-1-13 by 2011 Wis. Act 266 to read:

1. The agreement may provide as one of its conditions that a person covered under sub. (1) (b) or (c) pay the domestic abuse surcharge under s. 973.055 and, if applicable, the global positioning system tracking surcharge under s. 973.057. If the agreement requires the person to pay the global positioning system tracking surcharge under s. 973.057, the agreement shall also require the person to pay the domestic abuse surcharge under s. 973.055. Payments and collections of the domestic abuse surcharge and the global positioning system tracking surcharge under this subdivision are subject to s. 973.055(2) to (4) or to s. 973.057(2) and (3), respectively, except as follows:

Subd. 2. is amended eff. 7-1-13 by 2011 Wis. Act 266 to read:

2. If the prosecution is resumed under sub. (2) and the person is subsequently convicted, a court shall give the person credit under s. 973.055 and, if applicable, s. 973.057 for any amount paid under subd. 1.