In Wisconsin, a person commits the crime of domestic abuse (also called domestic violence) by committing battery (injury), inflicting pain or fear, or sexually assaulting a person in his or her family or household. It is also a crime in Wisconsin to violate a restraining order.
In many states, battery against a family or household member is punished more severely. Under Wisconsin's laws, domestic violence crimes are not punished more severely (unless the defendant has multiple prior convictions), but other special rules and procedures apply.
For more information on battery, see Battery Laws in Wisconsin and Felony Battery Laws in Wisconsin.
Domestic Abuse Arrests
A police officer must arrest and take a defendant into custody if the officer has reasonable grounds to believe the defendant has committed domestic abuse against a spouse, former spouse, a person whom the defendant lives with or has lived with, or a person whom the defendant has children with, and:
- continued abuse is likely
- there is evidence of physical injury to the victim, or
- the defendant is the predominant aggressor (the person who, considering the whole relationship, is the abuser).
Domestic Abuse. For purposes of arrest, a person commits domestic abuse by:
- inflicting pain or injury,
- sexually assaulting, or
- committing a physical act that causes the victim to fear pain, injury, or sexual assault.
Once arrested, the defendant cannot be released until posting bail or being seen by a judge.
An officer must also arrest and take into custody any person who violates a restraining order (see below).
These are exceptions to the usual rule that an officer must normally obtain a warrant when a felony has been committed outside his presence. (Wis. Stat. § § 813.12, 968.075.)
No contact requirement
In Wisconsin, unless the victim signs a written waiver, a defendant who is arrested for domestic abuse must stay away from the victim's residence (or temporary residence) and not contact (or have anyone else contact) the victim for 72 hours after the arrest. Contacting the victim or going to the victim's residence is a crime.
(Wis. Stat. § 968.075.)
Restraining Orders
A restraining order (sometimes called a protective order) is a court order requiring one person (the respondent) to not contact and stay away from another person (the petitioner).
Any person who is the victim of domestic abuse in Wisconsin may file for a restraining order. For purposes of a restraining order, domestic abuse is defined more broadly than the criminal definition. A person commits domestic abuse by inflicting or threatening injury or pain, sexual assault, or property damage against an adult family member or household member.
Family and household members are also more broadly defined for the purpose of obtaining a restraining order.
Family and household members include: spouses and former spouses, parents, children, people related by blood and adoption, people who live or have lived with one another, people who are caregivers to other adults, people who have children together, and people who are dating.
(Wis. Stat. § 813.12.)
In Wisconsin, the petitioner must first file a petition for a temporary restraining order. After the court issues a temporary restraining order, then it holds a hearing and, if necessary, issues a final injunction.
In deciding whether to grant a restraining order, whether a temporary restraining order or an injunction, the court must decide whether the respondent has committed or may commit domestic abuse. If the answer is yes, the court can issue an order:
- prohibiting the respondent from committing domestic abuse
- prohibiting the respondent from going to the petitioner's residence
- prohibiting the respondent from contacting, or having anyone else contact, the petitioner (unless the petitioner consents in writing), and
- ordering any other appropriate relief.
(Wis. Stat. § 813.12.)
Temporary restraining order
A temporary restraining order is "ex parte" order (one made without notice to the respondent and without the respondent first appearing in court). The temporary restraining order is in effect onlyuntil the hearing is held, usually within 14 days. In the meantime, the respondent must be served (given a copy of the petition and the temporary order).
(Wis. Stat. § 813.12.)
Final injunction
After the hearing, the court may issue a final injunction, which can be in effect for up to four years. If the court issues a final injunction, it must also order the petitioner to surrender any firearms.
(Wis. Stat. § 813.12.)
Deferred Prosecution
A prosecutor may decide to defer (put off) prosecution of a defendant who is charged with certain violent or threatening crimes, including battery, sexual assault, abuse, intimidation, property damage, trespass, harassment, or violating a restraining order, against a spouse or former spouse, a person with whom the defendant lives or has lived, or a person with whom the defendant has children.
Under a deferred prosecution agreement, the prosecution agrees to defer prosecution for a set period of time so long as the defendant complies with certain conditions. The defendant must file a monthly report with the prosecutor, stating that he or she has complied.
At the end of the period of time, if the defendant has fulfilled his or her obligations, the charges are dismissed. However, at any time before the charges are dismissed either the prosecutor or the defendant can choose to resume the prosecution.
(Wis. Stat. § 971.37.)
Repeat Offender
A person is a repeat domestic abuser if he or she:
- commits an act of domestic abuse within 72 hours of being arrested for a domestic abuse incident, or
- has been previously convicted of two crimes for which the court could impose the special domestic violence fee (see below) within the 10 years (not including any time spent incarcerated).
Repeat domestic abusers are subject to increased punishment.
(Wis. Stat. § 939.621.)
Punishment
Violating the no contact requirement is punishable by up to 9 months in jail and a fine of up to $10,000.
Violating a temporary restraining order or final injunction is punishable by up to 9 months in jail and a fine of up to $1,000.
A court may increase a repeat domestic abuser's term in jail or prison by up to two years.
Domestic violence fee
Any person who is convicted of any violent or threatening crime, including battery, sexual assault, abuse, intimidation, property damage, trespass, harassment, or violating a restraining order, against a spouse or former spouse, a person with whom the defendant lives or lived, or a person with whom the defendant has children, must pay a special fee of $100.
(Wis. Stat. § § 813.12, 939.621, 968.075, 973.055.)
Obtaining Legal Assistance
A restraining order or a domestic violence conviction can have very serious consequences. If you are arrested for domestic abuse or served with a restraining order, you should contact a Wisconsin criminal defense attorney as soon as possible. An attorney will be able to tell you how your case is likely to be treated, depending on the assigned judge and prosecutor, and help you prepare a strong defense to achieve the best possible outcome in your case.
