July 3, 2012 – A Waukesha man convicted of sexual assault and other crimes against four teenage girls recently lost his appeal to the Wisconsin Supreme Court, which clarified the state’s interference with child custody statute on certification.

Scott Ziegler, owner of a sex novelty and paraphernalia shop in Waukesha, was about 37 years old when he began sexual relationships with four girls ages 14 to 16. The girls frequented Ziegler’s shop and residence, and admitted having sex with him in exchange for drugs and alcohol.

The state charged Ziegler in 2008 on 14 different counts, including multiple first and second degree sexual assault charges, physical abuse, and interference with child custody.

Wis. Stat. 948.31(2), the interference with child custody statute, makes it a Class I felony for a person, without consent, to “cause a child to leave,” “take a child away” or “withhold a child for more than 12 hours” from their parents or legal custodians.

Police found a 14-year old girl, who had been missing for 10 days, at Ziegler’s house wearing a dog collar and leash. The girl testified that she had been staying with Ziegler for a week.

Ultimately, a jury found Ziegler guilty on all 14 counts. With some concurrent sentences, Ziegler was sentenced to 35 years in prison, with 20 years of extended supervision.

On appeal, Ziegler argued that there was insufficient evidence to charge him with interfering with child custody. The appeals court certified the case to the supreme court to clarify the proper interpretation of section 948.31(2) in light of State v. Bowden, 2007 WI App 234.

In Bowden, the appeals court suggested that a defendant cannot be charged under 948.31(2) for “withholding a child” unless the defendant had initial permission to take the child. “The other two methods speak to situations where the parent has given no permission to the person who ‘causes a child to leave’ or ‘takes a child away,’” the Bowden court explained.

But in State v. Ziegler, 2012 WI 73 (July 3, 2012), a Wisconsin Supreme Court majority squarely rejected that suggestion, ruling that “withholding a child” is not conditioned on permission.

“We therefore withdraw from Bowden any language that suggests that § 948.31(2) requires the state to prove that the defendant had the parents’ ‘initial permission’ to take the child,” wrote Justice Annette Ziegler. “The remainder of Bowden retains its precedential value.”

A unanimous supreme court rejected Ziegler’s claim that five counts, relating to crimes against the same girl, violated the Double Jeopardy Clause under the Fifth Amendment to the U.S. Constitution, which prohibits multiple punishment for the same offense.

Ziegler had argued that five counts pertained to a continuous sexual episode involving different parts of the girl’s body, which could not be charged separately. “We conclude that the five offenses, while identical in law, are different in fact,” the court explained.

Concurrence / Dissent 

Chief Justice Shirley Abrahamson (joined by Justice Ann Walsh Bradley) concurred in part, dissented in part. In dissent, the chief justice argued that the majority improperly interpreted section 948.31(2). “The majority mechanically examined the text of the statute and fails to apply basic, accepted rules of statutory interpretation,” Chief Justice Abrahamson wrote.

The dissenters explained that the majority’s opinion could lead to absurd results, such as a situation in which a teenager goes to a friend’s house for more than 12 hours without permission from his or her parents. The friend’s parents, or the friend, could be charged.

“I recognize the necessity and value of prosecutorial discretion in our system, but the majority opinion’s statutory interpretation takes prosecutorial discretion too far,” the dissent explained.

 Joe Forward is the Legal Writer for the State Bar of Wisconsin