Effect of conviction.
If any person has been convicted of any offense with respect to an act or omission on which a claim under this subchapter is based, proof of that conviction shall be taken as conclusive evidence that the offense has been committed, unless an appeal or any proceeding with regard thereto is pending.
History: 1975 c. 344
; 2007 a. 20
The procedure of ch. 227
for contested cases applies to hearings under this subchapter except as otherwise provided in this section and ss. 949.12
The division of hearings and appeals in the department of administration shall appoint hearing examiners to make findings and orders under s. 227.46
and this subchapter.
All hearings shall be open to the public unless in a particular case the examiner determines that the hearing, or a portion thereof, shall be held in private having regard to the fact that the offender has not been convicted or to the interest of the victim of an alleged sexual offense.
The department or any of its authorized agents may issue subpoenas for persons or records for any investigation or hearing conducted under this subchapter and may enforce compliance with such subpoenas as provided in s. 885.12
History: 1981 c. 20
; 2007 a. 20
Condition of claimant.
There is no privilege, except privileges arising from the attorney-client relationship, as to communications or records relevant to an issue of the physical, mental or emotional condition of the claimant or victim in a proceeding under this subchapter in which that condition is an element.
Upon request by the department, any state or local agency, including a district attorney or law enforcement agency, shall make available all reports, files and other appropriate information which the department requests in order to make a determination that a person is eligible for an award under this subchapter.
The department may determine and allow reasonable attorney fees to be paid out of, but not in addition to, the amount of the award granted to a claimant. No attorney may ask for, contract for or receive any larger sum than the amount so allowed. Attorney fees shall not exceed 10 percent of the amount the attorney assisted the victim in obtaining.
The department shall provide for payment of such fee directly to the person entitled thereto.
Whoever charges a fee in violation of sub. (1)
shall forfeit double the amount retained by the attorney. This forfeiture shall be collected by this state in an action in debt, upon complaint of the department. Out of the sum recovered, the court shall direct payment to a claimant in the amount of the overcharge.
Department subrogation rights. 949.15(1)(1)
Whenever the department orders the payment of an award under this subchapter as a result of the occurrence of an event that creates a cause of action on the part of a claimant against any person, the department is subrogated to the rights of the claimant and may bring an action against the person for the amount of the damages sustained by the claimant. If an amount greater than that paid under the award order is recovered and collected in any such action, the department shall pay the balance to the claimant. If the person responsible for the injury or death has previously made restitution payments to the general fund under s. 973.20
, any judgment obtained by the department under this section shall be reduced by the amount of the restitution payments to the general fund.
In addition to the authority of the department to bring an action under sub. (1)
, the claimant may bring an action to recover damages. In any such action, the department has subrogation rights under sub. (1)
and the claimant shall join the department as a party under s. 803.03 (2) (a)
. After joinder, the department has the options specified in s. 803.03 (2) (b)
If a judgment or verdict in an action under sub. (1)
indicates separately economic loss and noneconomic detriment, payments on the judgment shall be allocated between them in proportion to the amounts indicated. In such an action, the judge, on timely motion, shall direct the jury to return a special verdict, indicating separately the awards for noneconomic detriment, punitive damages and economic loss.
Election of remedies, retroactivity, joinder, statute of limitations, and subrogation are discussed. Bruner v. Kops, 105 Wis. 2d 614
, 314 N.W.2d 892
(Ct. App. 1981).
Although a county was vicariously liable for damages due to injury, it was not a “person responsible for the injury." As such, no subrogation was required. Hamed v. Milwaukee County, 108 Wis. 2d 257
, 321 N.W.2d 199
The Department of Justice, Crime Victim Compensation Program is not an entity that is separate and distinct from the state. The program is an arm of the state and is considered stateless for diversity purposes under federal law. Bosse v. Pitts, 455 F. Supp. 868
Confidentiality of records.
The record of a proceeding before an examiner or the department under this subchapter is a public record. Any record or report obtained by an examiner or the department, the confidentiality of which is protected by any other law or rule, shall remain confidential.
Escrow accounts; moneys received as a result of the commission of a serious crime. 949.165(1)(a)
“Serious crime" has the meaning designated in s. 969.08 (10) (b)
and includes solicitation, conspiracy or attempt to commit a serious crime.
Payment to and establishment of escrow accounts.
Every person or other legal entity contracting with any person, or the representative or assignee of any person, accused or convicted of a serious crime in this state, with respect to the reenactment of the serious crime, by a movie, book, magazine article, tape recording, phonograph record, radio or television presentation or live entertainment of any kind, or from the expression of the accused or convicted person's thoughts, feelings, opinions or emotions regarding the serious crime, shall submit a copy of the contract to the department and pay over to the department any moneys which would otherwise, by terms of the contract, be owing to the person so accused or convicted or his or her representatives. This subsection applies only if the reenactment of the serious crime constitutes a substantial portion of the movie, book, article, recording, record, presentation, entertainment or expression. The department shall deposit the moneys in an interest-bearing escrow account for the payment of money judgments to any victim or the legal representative of any victim of serious crimes committed by:
The accused person, but only if the accused person is eventually convicted of the serious crime charged.
Notice to potential claimants.
The department, at least once every 6 months for 3 years from the date it receives the moneys, shall cause to have published a legal notice in newspapers of general circulation in the county in which the serious crime was committed advising the victims that the escrow moneys are available to satisfy money judgments under this section. The department may provide for additional notice. When the department is reasonably satisfied that all victims have received actual notice, the department may cease to provide the notice required under this subsection.
Claims on moneys in an escrow account have the following priority:
Second priority for payments to satisfy money judgments under sub. (6)
Third priority for reimbursement, recoupment and restitution payments under sub. (7)
The department shall make payments from escrow accounts in accordance with the priority schedule under par. (a)
. The department may make payments at any time from an escrow account, except that no payment may be made for a claim if there is another existing or pending claim entitled to a higher priority.
If the amount of claims for the same priority exceeds the amount of moneys available in an escrow account, the department may prorate the payments.
First priority payments; legal representation.
The department shall make payments from an escrow account to a person charged with a serious crime upon the order of a court of competent jurisdiction after a showing by the person that the moneys shall be used for the exclusive purpose of his or her legal representation in a criminal action or in the defense of a civil action.
Second priority payments; satisfaction of money judgments. 949.165(6)(a)(a)
The department shall make payments to victims or legal representatives of victims of serious crimes who have obtained money judgments against the accused or convicted person. The victim or legal representative of the victim shall bring a civil action and obtain a money judgment. The victim shall then file a claim with the department for payment.
In the case of death of the victim, one or more dependents may obtain a payment under this section in the same manner as a victim. If 2 or more dependents are entitled to payments under this subsection, the department shall apportion the payments among the dependents.
If the state is subrogated to a cause of action under s. 949.15
, the state may seek reimbursement under this subsection. If the judgment is apportioned under s. 949.15 (3)
, the payments under this subsection shall be prorated accordingly.
The victim or the legal representative of a victim shall notify the department when he or she brings the action described in par. (a)
, but failure to notify under this paragraph does not bar any payment from an escrow account.
Third priority payments; legal fees and restitution.
The department shall make payments from an escrow account for any governmental entity for the reimbursement for or recoupment of the costs of legal representation of the person charged with the serious crime or for any unpaid restitution under s. 973.20
. The governmental entity shall file a claim for the applicable amount with the department.
Payment to accused or convicted person.
If either of the following conditions occur, the department shall pay all of the remaining moneys in an escrow account to the accused or convicted person:
The charges against the person are dismissed with prejudice or the person is found not guilty of the serious crime charged.
Three years have elapsed from the date of the establishment of the escrow account and no civil actions seeking money judgments, unsatisfied money judgments or claims under this section are pending against the defendant in this state.
If a court determines that a person accused of a serious crime is incompetent to proceed under s. 971.14
or if the charges are dismissed without prejudice, the department shall bring an action of interpleader to determine the disposition of the escrow account.
Statute of limitations.
If an escrow account is established under this section, no otherwise applicable statute of limitations on the time within which a civil action may be brought bars an action by a victim of a serious crime committed by a person accused or convicted of the serious crime as to a claim resulting from the serious crime until 3 years have elapsed from the time the escrow account was established.
Act to defeat purpose; void.
Any act by any person accused or convicted of a serious crime, whether by execution of a power of attorney, creation of corporate entities or otherwise, to defeat the purpose of this section shall be void as against the public policy of this state.
Payment is not an award.
Any payment from an escrow account under this section shall not be considered as an award by the department under this subchapter.
This section applies only to contracts which are entered into on or after May 18, 1985.
Any person who violates sub. (2)
shall be fined not more than $500 or imprisoned not more than 30 days or both.
In connection with the crime victim compensation program, no person may:
Submit a fraudulent application or claim for an award;
Intentionally make or cause to be made any false statement or representation of a material fact; or
Intentionally conceal or fail to disclose information affecting the amount of or the initial or continued right to any such award when reasonably requested to provide such information by the department.
Any person who violates this section shall be fined not more than $500 or imprisoned not more than 6 months or both. The person shall further forfeit any benefit received and shall reimburse the state for payments received or paid to or on behalf of the person.
The state has a civil cause of action for relief against any person who violates this section for the amount of damages which the state sustained by reason of the violation and, in addition, for punitive damages not more than double the amount of damages which the state may have sustained, together with interest, and the cost of the suit.
The attorney general may bring any action and has such powers as may be necessary to enforce this section.
History: 1975 c. 344
; 1981 c. 20
Report by the department.
The department's biennial report under s. 15.04 (1) (d)
shall include a report of its activities under this subchapter including:
An explanation of the procedures for filing and processing claims under this subchapter.
A description of the programs and policies instituted to promote public awareness about crime victim compensation.
An analysis of future needs and suggested program improvements.
A copy of the forms utilized under this subchapter.
A complete statistical analysis of the cases handled under this subchapter, including:
The number of claims approved and the amount of each award.
The number of claims denied and the reasons for rejection.
A breakdown of claims by geographic area, month, age and sex of victim, type of crime committed and other relevant facts.
A summary of cases handled under this subchapter.
SEXUAL ASSAULT FORENSIC
In this subchapter:
“Cooperate with a law enforcement agency" means to report a sex offense to a law enforcement agency or to aid a law enforcement agency in the investigation of a sex offense.
“Department" means the department of justice.
“Examination costs" means the costs of an examination that is done to gather evidence regarding a sex offense, any procedure during that examination process that tests for or prevents a sexually transmitted disease, and any medication provided or prescribed, during that examination process, that prevents or treats a sexually transmitted disease that the person performing the examination or procedure believes could be a consequence of the sex offense. “Examination costs" does not include any processing or administrative costs, attorney fees, or other expenses.