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Section 968.075 – Domestic abuse incidents; arrest and prosecution

May 14, 2021 | Criminal Procedure, Wisconsin

(1) DEFINITIONS. In this section:

(a) “Domestic abuse” means any of the following engaged in by an adult person against his or her 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:

1. Intentional infliction of physical pain, physical injury or illness.
2. Intentional impairment of physical condition.
3. A violation of s. 940.225(1), (2) or (3).
4. A physical act that may cause the other person reasonably to fear imminent engagement in the conduct described under subd. 1., 2. or 3.
(b) “Law enforcement agency” has the meaning specified in s. 165.83(1) (b).
(d) “Party” means a person involved in a domestic abuse incident.
(e) “Predominant aggressor” means the most significant, but not necessarily the first, aggressor in a domestic abuse incident.
(2) CIRCUMSTANCES REQUIRING ARREST; PRESUMPTION AGAINST CERTAIN ARRESTS.

(a) Notwithstanding s. 968.07(1) and except as provided in pars. (am) and (b), a law enforcement officer shall arrest and take a person into custody if:

1. The officer has reasonable grounds to believe that the person is committing or has committed domestic abuse and that the person’s actions constitute the commission of a crime; and
2. Any of the following apply:

a. The officer has a reasonable basis for believing that continued domestic abuse against the alleged victim is likely.
b. There is evidence of physical injury to the alleged victim.
c. The person is the predominant aggressor.
(am) Notwithstanding s. 968.07(1), unless the person’s arrest is required under s. 813.12(7), 813.122(10), 813.125(6), or 813.128(3g) (b) or sub. (5) (e), if a law enforcement officer identifies the predominant aggressor, it is generally not appropriate for a law enforcement officer to arrest anyone under par. (a) other than the predominant aggressor.
(ar) In order to protect victims from continuing domestic abuse, a law enforcement officer shall consider all of the following in identifying the predominant aggressor:

1. The history of domestic abuse between the parties, if it can be reasonably ascertained by the officer, and any information provided by witnesses regarding that history.
2. Statements made by witnesses.
3. The relative degree of injury inflicted on the parties.
4. The extent to which each person present appears to fear any party.
5. Whether any party is threatening or has threatened future harm against another party or another family or household member.
6. Whether either party acted in self-defense or in defense of any other person under the circumstances described in s. 939.48.
(b) If the officer’s reasonable grounds for belief under par. (a) 1. are based on a report of an alleged domestic abuse incident, the officer is required to make an arrest under par. (a) only if the report is received, within 28 days after the day the incident is alleged to have occurred, by the officer or the law enforcement agency that employs the officer.
(2m) IMMEDIATE RELEASE PROHIBITED. Unless s. 968.08 applies, a law enforcement officer may not release a person whose arrest was required under sub. (2) until the person posts bail under s. 969.07 or appears before a judge under s. 970.01(1).
(3) LAW ENFORCEMENT POLICIES.

(a) Each law enforcement agency shall develop, adopt, and implement written policies regarding procedures for domestic abuse incidents. The policies shall include, but not be limited to, the following:

1.

a. A statement emphasizing that in most circumstances, other than those under sub. (2), a law enforcement officer should arrest and take a person into custody if the officer has reasonable grounds to believe that the person is committing or has committed domestic abuse and that the person’s actions constitute the commission of a crime.
b. A policy reflecting the requirements of subs. (2) and (2m).
c. A statement emphasizing that a law enforcement officer’s decision as to whether or not to arrest under this section may not be based on the consent of the victim to any subsequent prosecution or on the relationship of the parties.
d. A statement emphasizing that a law enforcement officer’s decision not to arrest under this section may not be based solely upon the absence of visible indications of injury or impairment.
e. A statement discouraging, but not prohibiting, the arrest of more than one party.
f. A statement emphasizing that a law enforcement officer, in determining whether to arrest a party, should consider whether he or she acted in self-defense or in defense of another person.
2. A procedure for the written report and referral required under sub. (4).
3. A procedure for notifying the alleged victim of the incident of the provisions in sub. (5), the procedure for releasing the arrested person and the likelihood and probable time of the arrested person’s release.
4. A procedure that requires a law enforcement officer, if the law enforcement officer has reasonable grounds to believe that a person is committing or has committed domestic abuse, to inform the victim of the availability of shelters and services in his or her community, including using lists available under ss. 49.165(4) (b) and 165.93(4) (b); to give notice of legal rights and remedies available to him or her; and to provide him or her with a statement that reads substantially as follows: “If you are the victim of domestic abuse, you may contact a domestic violence victim service provider to plan for your safety and take steps to protect yourself, including filing a petition under s. 813.12 of the Wisconsin statutes for a domestic abuse injunction or under s. 813.125 of the Wisconsin statutes for a harassment injunction.”
(am) The policies under par. (a) may provide that the law enforcement agency will share information with organizations that are eligible to receive grants under s. 49.165(2) or 165.93(2).
(b) In the development of these policies, each law enforcement agency is encouraged to consult with community organizations and other law enforcement agencies with expertise in the recognition and handling of domestic abuse incidents.
(c) This subsection does not limit the authority of a law enforcement agency to establish policies that require arrests under more circumstances than those set forth in sub. (2), but the policies may not conflict with the presumption under sub. (2) (am).
(4) REPORT REQUIRED WHERE NO ARREST. If a law enforcement officer does not make an arrest under this section when the officer has reasonable grounds to believe that a person is committing or has committed domestic abuse and that person’s acts constitute the commission of a crime, the officer shall prepare a written report stating why the person was not arrested. The report shall be sent to the district attorney’s office, in the county where the acts took place, immediately after investigation of the incident has been completed. The district attorney shall review the report to determine whether the person involved in the incident should be charged with the commission of a crime.
(5) CONTACT PROHIBITION.

(a)

1. Unless there is a waiver under par. (c), during the 72 hours immediately following an arrest for a domestic abuse incident, the arrested person shall avoid the residence of the alleged victim of the domestic abuse incident and, if applicable, any premises temporarily occupied by the alleged victim, and avoid contacting or causing any person, other than law enforcement officers and attorneys for the arrested person and alleged victim, to contact the alleged victim.
2. An arrested person who intentionally violates this paragraph may be fined not more than $10,000 or imprisoned for not more than 9 months or both.
(b)

1. Unless there is a waiver under par. (c), a law enforcement officer or other person who releases a person arrested for a domestic abuse incident from custody less than 72 hours after the arrest shall inform the arrested person orally and in writing of the requirements under par. (a), the consequences of violating the requirements and the provisions of s. 939.621. The arrested person shall sign an acknowledgment on the written notice that he or she has received notice of, and understands the requirements, the consequences of violating the requirements and the provisions of s. 939.621. If the arrested person refuses to sign the notice, he or she may not be released from custody.
2. If there is a waiver under par. (c) and the person is released under subd. 1., the law enforcement officer or other person who releases the arrested person shall inform the arrested person orally and in writing of the waiver and the provisions of s. 939.621.
3. Failure to comply with the notice requirement under subd. 1. regarding a person who is lawfully released from custody bars a prosecution under par. (a), but does not affect the application of s. 939.621 in any criminal prosecution.
(c) At any time during the 72-hour period specified in par. (a), the alleged victim may sign a written waiver of the requirements in par. (a). The law enforcement agency shall have a waiver form available.
(d) The law enforcement agency responsible for the arrest of a person for a domestic abuse incident shall notify the alleged victim of the requirements under par. (a) and the possibility of, procedure for and effect of a waiver under par. (c).
(e) Notwithstanding s. 968.07(1), a law enforcement officer shall arrest and take a person into custody if the officer has reasonable grounds to believe that the person has violated par. (a).
(6) CONDITIONAL RELEASE. A person arrested and taken into custody for a domestic abuse incident is eligible for conditional release. Unless there is a waiver under sub. (5) (c), as part of the conditions of any such release that occurs during the 72 hours immediately following such an arrest, the person shall be required to comply with the requirements under sub. (5) (a) and to sign the acknowledgment under sub. (5) (b). The arrested person’s release shall be conditioned upon his or her signed agreement to refrain from any threats or acts of domestic abuse against the alleged victim or other person.
(6m) OFFICER IMMUNITY. A law enforcement officer is immune from civil and criminal liability arising out of a decision by the officer to arrest or not arrest an alleged offender, if the decision is made in a good faith effort to comply with this section.
(7) PROSECUTION POLICIES. Each district attorney’s office shall develop, adopt and implement written policies encouraging the prosecution of domestic abuse offenses. The policies shall include, but not be limited to, the following:

(a) A policy indicating that a prosecutor’s decision not to prosecute a domestic abuse incident should not be based:

1. Solely upon the absence of visible indications of injury or impairment;
2. Upon the victim’s consent to any subsequent prosecution of the other person involved in the incident; or
3. Upon the relationship of the persons involved in the incident.
(b) A policy indicating that when any domestic abuse incident is reported to the district attorney’s office, including a report made under sub. (4), a charging decision by the district attorney should, absent extraordinary circumstances, be made not later than 2 weeks after the district attorney has received notice of the incident.
(8) EDUCATION AND TRAINING. Any education and training by the law enforcement agency relating to the handling of domestic abuse complaints shall stress enforcement of criminal laws in domestic abuse incidents and protection of the alleged victim. Law enforcement agencies and community organizations with expertise in the recognition and handling of domestic abuse incidents shall cooperate in all aspects of the training.
(9) ANNUAL REPORT.

(a) Each district attorney shall submit an annual report to the department of justice listing all of the following:

1. The number of arrests for domestic abuse incidents in his or her county as compiled and furnished by the law enforcement agencies within the county.
1m. The number of responses law enforcement made that involved a domestic abuse incident that did not result in an arrest.
2. The number of subsequent prosecutions and convictions of the persons arrested for domestic abuse incidents.
(b) The listing of the number of arrests, prosecutions and convictions under par. (a) shall include categories by statutory reference to the offense involved and include totals for all categories.

Wis. Stat. ยง 968.075

Amended by Acts 2015 ch, 352,s 36, eff. 4/13/2016.
Amended by Acts 2013 ch, 323,s 11, eff. 4/18/2014.
Amended by Acts 2013 ch, 323,s 10, eff. 4/18/2014.
Amended by Acts 2013 ch, 323,s 9, eff. 4/18/2014.
Amended by Acts 2013 ch, 323,s 8, eff. 4/18/2014.
1987 a. 346; 1989 a. 293; 1993 a. 319; 1995 a. 304; 2005 a. 104; 2011 a. 267; s. 13.92(1) (bm) 2.

Par. (e) is shown as renumbered from par. (c) by the legislative reference bureau under s. 13.92(1) (bm) 2.

1987 Wis. Act 346, which created this section, states the legislative intent and purpose in section 1 of the Act.