Monroe County Department of Human Services v. Kelli B.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 ANN WALSH BRADLEY, J. The Monroe County Department of Human Services ("County") seeks review of a published court of appeals' decision that reversed the orders of the circuit court terminating Kelli B.'s parental rights to her three sons.[1] The County contends that the court of appeals erred in holding that Wis. Stat. § 48.415(7) (2001-02) could not constitutionally be applied to Kelli, a victim of long-term and continuous incest perpetrated by her father.[2] Because we determine that the statute, as applied, is not narrowly tailored to advance a compelling state interest, we conclude that it violates Kelli's right to substantive due process. Accordingly, we affirm the court of appeals.[3]

¶2 Kelli was born on January 17, 1980. Her first son, Zachary, was conceived and born when she was 17 years of age. Her second son, Nathaniel, was conceived when she was 18, and her third son, Michael, was conceived when she was 20. It is undisputed that Kelli's father, Roger, is the father of her children.

¶3 By most accounts, Kelli's incestuous relationship with Roger began about the time she was 12.[4] She did not disclose the identity of her children's father until after the birth of her third son, Michael. Kelli testified that she kept this secret because she feared for her life and the lives of her children. Kelli finally broke her silence on May 30, 2001, and informed a child support specialist that her father, Roger, was also the father of her children.

¶4 After Kelli's disclosure, Roger was charged with first-degree sexual assault of a child for having sexual contact with Kelli when she was younger than 13, in violation of Wis. Stat. § 948.02(1), and second-degree sexual assault of a child for having intercourse with Kelli before the age of 16 in violation of Wis. Stat. § 948.02(2). The State later dropped the first-degree sexual assault charge and added the charge of incest with a child in violation of Wis. Stat. § 948.06(1).

¶5 Pursuant to an agreement, Roger entered a plea of guilty to the incest charge and a felony bail jumping charge, and the sexual assault charge was dismissed. Eventually, Roger was given a sentence of ten years for the incest charge and one year, consecutive, for the bail jumping charge. At both his sentencing and resentencing hearings, the court referred to Kelli as a "victim."

¶6 Subsequently, on September 9, 2001, the Monroe County Police Department notified the County that Kelli had been arrested on unrelated charges and that no one was available to care for her minor children. Two caseworkers responded to the call and found the children to be living in unsafe and unsanitary conditions. The children were taken into custody by the County, and it was soon determined that at that time all three were developmentally delayed.

¶7 After Kelli admitted that her children were in need of protection and services, a dispositional order was entered under Wis. Stat. § 48.13(10) on November 19, 2001. During the course of the next several months, the County attempted to work with Kelli to get her into a position where she might be able to care for her children. From the beginning, the County's plan was focused on reunifying the children with Kelli.

¶8 On June 27, 2002, after months of inconsistent visitation, failure to cooperate with the court order, and an inability to achieve a stable lifestyle, the County petitioned to terminate both Kelli and Roger's parental rights. For Kelli, the petition alleged two separate grounds: (1) that the children were in continuing need of protection or services, Wis. Stat. § 48.415(2); and (2) the ground of incestuous parenthood, Wis. Stat. § 48.415(7). For Roger, the petition alleged (1) incestuous parenthood; and (2) that his parenthood was a result of sexual assault, Wis. Stat. § 48.415(9). Roger has since voluntarily agreed to terminate his parental rights, and his rights are not at issue in this case.

¶9 Kelli moved to dismiss the incestuous parenthood ground. She contended that, as the victim of incest, application of this provision violated her right to substantive due process.[5] On August 6, 2002, the circuit court denied her motion, stating that a parent did not have a fundamental right to raise a child born of an incestuous relationship. The court further noted that it had discretion at the disposition stage not to terminate parental rights if the parent was providing good care to the child born of an incestuous relationship and the incest was not voluntary.

¶10 After the circuit court denied Kelli's motion, the County moved for partial summary judgment on the incest ground. The circuit court granted the motion. At that time, the County requested to dismiss without prejudice the remaining ground that the children were in continuing need of protection, and the court granted the motion.

¶11 On September 26, 2002, the guardian ad litem brought a motion for reconsideration of the circuit court's partial summary judgment. The guardian argued that summary judgment was inappropriate for such proceedings and that due process required that the court reverse its decision. The court agreed and reversed its partial summary judgment.

¶12 The circuit court then held a jury trial to determine whether there was a basis for termination of parental rights on the sole ground of incestuous parenthood. Immediately before trial, Kelli renewed her constitutional challenge to the statute as it applied to her, a victim of long-term and continuous incest perpetrated by her father. The circuit court again denied her motion. The jury returned a verdict with the necessary finding to establish the ground of incestuous parenthood, that is, a finding that Kelli and Roger were related by blood in a degree of kinship closer than second cousin. Accordingly, pursuant to Wis. Stat. § 48.424(4), the circuit court found her to be an unfit parent.[6]

¶13 After trial, the circuit court held a dispositional hearing to determine whether termination of Kelli's parental rights was in her children's best interests. The court determined that it was. Although it acknowledged that "[Kelli] has been a victim, and she has been damaged . . ." the court concluded that it was not in the children's best interests to wait and see if Kelli was able to make sufficient progress to become a good parent. The court explained that at the disposition stage of a termination of parental rights proceeding, it was required to determine what was in the best interests of the children.

¶14 The court of appeals reversed the circuit court's orders terminating Kelli's parental rights. It concluded that the fact of incestuous parenthood in itself did not demonstrate that Kelli was an unfit parent. Monroe County Department of Human Services v. Kelli B., 2003 WI App 88, ¶17, 263 Wis. 2d 413, 662 N.W.2d 36. The court recognized that Kelli had a fundamental liberty interest in raising her children. Id., ¶14. It also noted that the application of Wis. Stat. § 48.415(7) to Kelli was not narrowly tailored to advance a compelling state interest. See id., ¶¶16, 17. Finally, the court rejected the County's argument that the circuit court's discretionary authority at the disposition stage was sufficient to satisfy the requirements of substantive due process. Id., ¶20.

¶15 Ultimately, the court of appeals held that the ground of incestuous parenthood was unconstitutional as applied to Kelli because she was a victim of her father's incestuous relationship with her. Id., ¶21. Specifically, the court concluded that the application of Wis. Stat. § 48.415(7) to Kelli violated her right to substantive due process. Id.

¶16 In this case we address whether Wis. Stat. § 48.415(7), as applied, violates the constitutional right to substantive due process. Such an issue presents a question of law subject to independent appellate review. See State v. Allen M., 214 Wis. 2d 302, 313, 571 N.W.2d 872 (Ct. App. 1997). We begin with the presumption that the statute is constitutional and resolve any doubt in upholding its constitutionality. See id.

¶17 Here the parties disagree as to whether the termination of Kelli's parental rights implicates a fundamental liberty interest. If it does, we review the question while employing a standard of strict scrutiny. Winnebago County DSS v. Darrel A., 194 Wis. 2d 627, 639, 534 N.W.2d 907 (Ct. App. 1995). This requires the County to show that the statute, as applied, is narrowly tailored to advance a compelling interest that justifies interference with Kelli's fundamental liberty interest. See id. If a fundamental liberty interest is not implicated, then we need only review the termination of Kelli's parental rights under the standard of rational basis. See Allen M., 214 Wis. 2d at 314, n. 12. This is satisfied if the legislative enactment bears a rational relation to some legitimate end. State v. McCaughtry, 2003 WI 80, ¶41, 263 Wis. 2d 83, 664 N.W.2d 596.

III

¶18 We begin our analysis with an examination of the statute at issue. Wisconsin Stat. § 48.415(7) provides for the termination of parental rights based on the ground of incestuous parenthood:

48.415 Grounds for involuntary termination of parental rights . . . Grounds for termination of parental rights shall be one of the following:

. . .

(7) INCESTUOUS PARENTHOOD. Incestuous parenthood, which shall be established by proving that the person whose parental rights are sought to be terminated is also related, either by blood or adoption, to the child's other parent in a degree of kinship closer than 2nd cousin.

¶19 Kelli asserts that the statute, as applied to her, violates her constitutional right to substantive due process. This right emanates from the Fourteenth Amendment of the Constitution.[7] In essence, it protects against governmental actions that are arbitrary and wrong "regardless of the fairness of the procedures used to implement them." Penterman v. Wisconsin Elec. Power Co., 211 Wis. 2d 458, 480, 565 N.W.2d 521 (1997) (citations omitted). Substantive due process has been traditionally afforded to fundamental liberty interests, such as marriage, family, procreation, and bodily integrity. Id. at 480-81, n. 10. Its analysis balances the state's compelling interests with its chosen method of protecting those interests.

¶20 The threshold inquiry we address is whether Kelli has a fundamental liberty interest in parenting her children. The County contends that she does not.[8] It cites Allen M. for the proposition that "no court has ever recognized incestuous parenthood or the act of incest as a fundamental right." 214 Wis. 2d 302, 314, n. 12. Furthermore, it argues that Kelli did not have a substantial relationship with her children, despite the fact that she had custody and lived with them until September 9, 2001, when they were three years old, two years old, and nearly seven months old respectively.

¶21 In Allen M., the court of appeals addressed a constitutional challenge to Wis. Stat. § 48.415(7) in a different factual setting. There, two biological siblings, engaged in a consensual and continuing incestuous relationship, maintained that the termination of their parental rights violated due process and equal protection. Id. at 306. Although the court ultimately reviewed the statute under strict scrutiny, it stated in a footnote that it was "intrigued" by the State and guardian ad litem's assertion that rational basis review was appropriate because the siblings did not have a fundamental right to raise a child born of an incestuous relationship. Id. at 314, n. 12.

¶22 The County skews the question before us when it attempts to apply this comment of the Allen M. court to the facts of this case. The question is not, as asserted by the County, whether any court "has ever recognized incestuous parenthood or the act of incest as a fundamental right." To suggest that anyone here is asserting that the act of incest is a fundamental liberty interest obfuscates the focus.

¶23 Rather, the question is whether a parent who has a substantial relationship with his or her child has a fundamental liberty interest in parenting the child. Our case law recognizes this fundamental liberty interest. See Parental Rights to SueAnn A.M., 176 Wis. 2d 673, 686, 500 N.W.2d 649 (1993); In Interest of Baby Girl K., 113 Wis. 2d 429, 446-47, 335 N.W.2d 846 (1983).

¶24 Here, Kelli established this fundamental liberty interest by living with her children and having custody of them. See In Interest of J.L.W., 102 Wis. 2d 118, 135, 306 N.W.2d 46 (1981). The County has not cited, and we have not discovered, any precedent that would support its position that a parent in Kelli's situation, a victim of long-term and continuous incest, is excluded from this constitutional protection. Accordingly, we conclude that Kelli does have a fundamental liberty interest in parenting her children that requires review under the standard of strict scrutiny.

¶25 Under that standard, we next consider whether the statute, as applied to Kelli, is narrowly tailored to advance a compelling state interest. "Incestuous parenthood" is one of 11 grounds set forth by Wis. Stat. § 48.415. The compelling interest underlying the statute is to protect children from unfit parents. See Wis. Stat. § 48.01.

¶26 As applied to Kelli, we conclude that the incestuous parenthood ground as set forth in Wis. Stat. § 48.415(7) is not narrowly tailored to advance the compelling state interest underlying the statute. The reason it is not narrowly tailored is that it renders people like Kelli per se unfit solely by virtue of their status as victims. While we recognize a correlation between perpetrators of incest and unfit parents, we fail to see how being victimized by one's parent or relative necessarily warrants the same conclusion. The fact of incestuous parenthood does not, in itself, demonstrate that victims like Kelli are unfit parents.

¶27 We agree with the State of Wisconsin, Department of Justice, that filed an amicus curiae brief in support of Kelli. It asserts that it is fundamentally unfair to terminate the parental rights of victims of incest based solely on that status:

In using Wis. Stat. § 48.415(7) to find a victim unfit to parent her child based solely on the fact of her victimization——without regard for her actual parenting activities and/or the actual condition of her children——Monroe County uses this crime victim's plight against her.

In accord with the Wisconsin Department of Justice, we determine that it is fundamentally unfair to terminate Kelli's parental rights based solely on her status as a victim of incest.

¶28 In addition to the compelling interest underlying the statute, the County asserts two specific compelling state interests that justify the interference with Kelli's liberty interest: (1) the deterrence of father-daughter incest; and (2) the protection of children from psychological harm. Although we agree with the County that both interests are compelling, we are not persuaded that the statute, as applied to Kelli, is narrowly tailored to advance either one.

¶29 In its first argument, the County contends that the application of Wis. Stat. § 48.415(7) to Kelli serves to deter "future incestuous conduct resulting in birth between fathers and daughters." It asserts:

The question put to this Court is whether it would be better to condone the biological realities of these children's births or discourage it, and any future incestuous conduct resulting in births between fathers and daughters by refusing to bestow legal protection on the relationship between Kelli and her children.

¶30 We conclude that the statute, as applied to Kelli, is not narrowly tailored to advance the compelling interest of deterring father-daughter incest. The concept of deterrence presupposes that Kelli had a meaningful choice in her relationship with her father. Yet the facts here do not support this presupposition. Rather, they support our conclusion as a matter of law that she is a victim.

¶31 From the time Kelli was 12 years old, continuing through the birth of her third child nine years later, she was involved in an incestuous relationship with her father. The facts reflect that she was a victim of this long-term and continuous relationship. Her father was convicted of felony incest with a child. The County's own petition to terminate Roger's parental rights alleged that it was a "substantiated [fact] that all three of Kelli's minor children are the products of sexual assault." At both Roger's sentencing and resentencing hearings, the circuit court recognized that Kelli was a victim. Finally, at the dispositional hearing, the circuit court acknowledged, "[a]s to Kelli, it's a very sad story. There is no question about it. And she has been a victim, and she has been damaged . . . ."[9]

¶32 Given her status as a victim, the statute is not narrowly tailored to promote the compelling state interest of deterring father-daughter incest. The reason it is not narrowly tailored is because it applies not only to perpetrators who may be amenable to deterrence but also to incest victims, for whom deterrence plays no role.

¶33 Additionally, the County asserts that failing to apply the statute to victims like Kelli would be promoting or "admitting a de facto acceptance of incestuous parenthood." We note that the Wisconsin legislature already discourages incestuous parenthood through several of its statutes. The legislature has criminalized incestuous sex.[10] It has also criminalized incest with a child.[11] Given the existence of these provisions, we are not persuaded that failing to apply the statute to victims like Kelli is tantamount to a "de facto acceptance of incestuous parenthood."

¶34 As a final compelling state interest, the County maintains that termination is necessary to protect Kelli's children from psychological harm encountered by being raised in an incestuous household. Specifically, it cites Allen M. in support of its argument:

A statute that declares incestuous parents unfit acknowledges the fundamentally disordered circumstances in which the child of an incestuous relationship will be raised. Moreover, it recognizes the vulnerability of the child and the compelling interest in protecting children from psychological confusion and emotional damage they likely will suffer as a result of being born to and living within an incestuous family.

214 Wis. 2d at 320.

¶35 The psychological harm described in Allen M. stemmed from the prospect of being raised in a home in which the parents were engaged in a consensual and continuing incestuous relationship. There is no evidence that Kelli intended to subject her children to such an environment. Indeed, by reporting her father to the proper authorities, Kelli demonstrated an intent to end the incestuous relationship. As a result we determine that the statute, as applied to Kelli, does not meet the standard of strict scrutiny.

¶36 Thus, we conclude that the statute, as applied here, is not narrowly tailored to advance any of the compelling state interests offered by the County. Kelli is a victim of long-term and continuous incest perpetrated by her father. Wisconsin Stat. § 48.415(7), applied to a victim like Kelli, is not narrowly tailored to protect children from unfit parents, does not promote deterrence, and does not protect children from the psychological harm of being raised in an incestuous family.

¶37 Perhaps the greatest difficulty we have with the County's position is that it elected to prove Kelli's parental unfitness solely on the ground of incestuous parenthood, rather than relying on other statutory grounds. It may well be that the County can ultimately prove Kelli's unfitness on other grounds. Initially, it alleged that her children were in continuing need of protection or services, Wis. Stat. § 48.415(2). However, the County dismissed that ground because it thought it more expedient to pursue only the incestuous parenthood ground.[12]

¶38 There can be little doubt that the County's objective was to do what was best for Kelli's children. But in taking the route thought to be the easiest, the County attempted to demonstrate Kelli's unfitness as a parent solely on her status——a victim of incest when her children were conceived. Accordingly, we agree with Kelli that the County's actions have implicated her constitutional right to substantive due process.

¶39 In its defense, the County maintains that the circuit court's discretion at the disposition stage to dismiss pursuant to Wis. Stat. § 48.427(2)[13] is sufficient to satisfy Kelli's right to substantive due process. The circuit court cited this discretion as part of its rationale in denying Kelli's motion to dismiss. It explained that it had authority at the disposition stage not to terminate parental rights if the parent was providing good care to the child born of an incestuous relationship and the incest was not voluntary.

¶40 Again, the County's argument misses its mark. Here, Kelli's challenge is one of substantive due process, not procedural due process. In such cases, the existence of extra procedural protections cannot cure the substantive due process violation. See Penterman, 211 Wis. 2d at 480. Therefore, it is irrelevant to inquire into the adequacy of the termination procedure, or, more specifically, whether the procedure applicable at the dispositional phase satisfies Kelli's constitutional rights.

¶41 In addition to constitutional considerations, Kelli's position is also supported by strong public policy favoring the protection of crime victims. Article I, § 9m of the Wisconsin Constitution provides, "[t]his state shall treat crime victims, as defined by law, with fairness, dignity and respect for their privacy." Furthermore, the Wisconsin legislature enacted Wis. Stat. ch. 950 to ensure that victims have access to, and involvement with, the criminal justice system. See Wis. Stat. § 950.01. Taken together, these provisions send a strong message concerning the state's interest in the treatment of crime victims.

¶42 We are mindful of this public policy in reaching our decision today. Were we to accept the County's position, Wisconsin would become the only state to authorize the termination of parental rights of victims as well as perpetrators of incest.[14] Not only would this undermine the state's general efforts to support crime victims, but it would also create a powerful disincentive for victims like Kelli to come forward in the first place.

¶43 In sum, we determine that Kelli has a fundamental liberty interest in parenting her children. Wisconsin Stat. § 48.415(7), as applied to Kelli, a victim of long-term and continuous incest perpetrated by her father, is not narrowly tailored to advance a compelling state interest. Therefore, like the court of appeals, we determine that the application of the statute to Kelli violated her right to substantive due process. Accordingly, we affirm the court of appeals.[15]

By the Court.—The decision of the court of appeals is affirmed.

¶44 PATIENCE D. ROGGENSACK, J., did not participate.

¶45 DAVID T. PROSSER, J. (dissenting). This is a sad case, with profound implications for a mother, her three children, and public policy.

¶46 The majority asserts that the application of Wis. Stat. § 48.415(7) to Kelli B. violates her right to substantive due process because, as applied, the statute "is not narrowly tailored to advance a compelling state interest." Majority op., ¶¶1, 32. The majority concludes that Kelli B. "has a fundamental liberty interest in parenting her children," id., ¶43, and this interest may not be terminated on "incestuous parenthood" grounds because Kelli B. was "a victim of long-term and continuous incest perpetrated by her father." Id. In short, the State may not use Kelli B.'s status as a crime victim as grounds to terminate her fundamental liberty interest.

¶47 Upon reflection, this case is more complicated than the majority is prepared to acknowledge. "Incestuous parenthood" is a legitimate ground for termination of parental rights in situations where an incestuous parent was the "perpetrator" of incest, where an incestuous parent capable of consent was a willing participant in incest, and where an incestuous parent's inability to provide for the emotional, physical, and developmental needs of the offspring of incest is inextricably linked to the parent's victimization from incest. In approving an "as applied" challenge to the constitutionality of the statute, the majority opinion is disturbingly selective in its consideration of facts and curiously unhelpful in explaining how it believes the case should have been handled in circuit court. Because I believe the opinion will create problems for the future, I respectfully dissent.

I. INCEST STATUTES

¶48 There are several Wisconsin statutes that address incest. In the criminal code, Wis. Stat. § 944.06 reads as follows: "Whoever marries or has nonmarital sexual intercourse with a person he or she knows is a blood relative and such relative is in fact related in a degree within which the marriage of the parties is prohibited by law is guilty of a Class F felony." Wisconsin Stat. § 948.06 focuses on incest with a child, providing in part that "Whoever . . . (1) [m]arries or has sexual intercourse or sexual contact with a child he or she knows is related, either by blood or adoption, and the child is related in a degree of kinship closer than 2nd cousin" is guilty of a Class C felony. (Emphasis added.)[16]

¶49 In the chapter on marriage, Wis. Stat. § 765.03(1) reads in part:

No marriage shall be contracted . . . between persons who are nearer of kin than 2nd cousins except that marriage may be contracted between first cousins where the female has obtained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile. Relationship under this section shall be computed by the rule of the civil law, whether the parties to the marriage are of the half or of the whole blood.

The rule of the civil law alluded to in § 765.03(1) is codified in Wis. Stat. § 990.001(16).

¶50 These incest statutes reflect important concerns. "The rationale behind punishing incest is founded on . . . the danger of biological mutations which might occur in the issue of such relationships[ ] and . . . the desire to protect children from the abuse of parental authority." 42 C.J.S. Incest § 2(b) 57-58 (1991) (citing People v. York, 329 N.E.2d 845, 846-47 (Ill. App. Ct. 1975)).[17] The latter concern should be expanded to include a desire to protect children from sexual abuse by any close blood relative. Marriage between close blood relatives often facilitates one or both of these evils.

¶51 In addition, nonmarital sexual intercourse with a close blood relative may constitute adultery.[18] When it does, it is likely to undermine the existing marriage relationship. Incest can also spawn intra-family rivalry and tension and create psychological confusion in the family about the appropriate roles of family members. Incest is sometimes described as the product of an already dysfunctional family.[19] The conception of incestuous children will usually lead either to abortion[20] or to the exacerbation of existing problems within the family.

¶52 "Marriage is the foundation of family and society. Its stability is basic to morality and civilization, and of vital interest to society and this state." Wis. Stat. § 944.01. In some circumstances, marriage between close blood relatives would completely pervert the concept of the nuclear family.

¶53 In the Children's Code, "Incestuous parenthood" is one of the grounds for termination of parental rights.[21] This ground complements the statutes on incest but also embodies separate and distinct concerns about the ability of incestuous parents to raise and support their children in a manner that does not victimize the children.

II. FELONY INCEST

¶54 The felony incest statute, Wis. Stat. § 944.06, prohibits marriage or sexual intercourse with a person who is a blood relative nearer of kin than 2nd cousin according to the rule of civil law. This statute is broadly written to include relationships with such blood relatives as grandparents, aunts, uncles, and cousins.[22]

¶55 Incest may involve two adults, two minors, or one adult and one minor. If the state chooses to prosecute a person for incest, it will select either § 944.06 or § 948.06, depending upon the facts.

¶56 A person charged with incest may also be charged with sexual assault, provided that the state is able to prove the requisite non-consent by the victim of the sexual assault. See State ex rel. Lawrence v. Burke, 253 Wis. 240, 247, 33 N.W.2d 242 (1948); Porath v. State, 90 Wis. 527, 536, 63 N.W. 1061 (1895).

¶57 Consent is a defense to a charge of sexual assault but consent is not a defense to a charge of incest. Mutual consent does not validate unlawful incest. This case indirectly raises the question whether a person's non-consent to sexual intercourse would be a defense if that person were prosecuted for incest.

¶58 When a person is charged with incest under § 944.06 or § 948.06, the person may contend that no crime was committed because the person did not have "knowledge" of a blood relationship (or of "adoption" in the case of § 948.06(1)). "Knowledge" is an essential element of the offense. The person may also rely on such statutory defenses as "intoxication," Wis. Stat. § 939.42, "mistake," Wis. Stat. § 939.43, or "coercion," Wis. Stat. § 939.46, depending on the facts.

¶59 If non-consent were recognized as a defense to incest, it would likely be a broader defense than the statutory defense of coercion, which is narrowly defined in § 939.46. A non-consent defense would present legal issues about definition as well as burden of proof.[23]

¶60 A child involved in sexual contact or sexual intercourse who has not attained the age of 16 years is incapable of consent as a matter of law. Wis. Stat. § 948.02(1) and (2). The same cannot be said of a child who is age 16 or 17 and it certainly cannot be said of an adult. Thus, when the victim of a sexual assault is age 16, 17, or older, the state must prove that the sexual intercourse or sexual contact occurred without consent. It follows that when the state fails to charge one party to incest with sexual assault or fails to prove such a charge, the second party's consent remains an open question of fact as long as the second party is capable of giving consent.

¶61 In my view, a person who has engaged in sexual intercourse without consent may not be convicted of felony incest under any statute. This means that I would recognize a non-consent defense to incest even though that defense does not appear in the statutes. Conversely, I believe a person who has attained the age of 16 years and is capable of giving informed consent is subject to prosecution for incest if the person freely agrees to have sexual intercourse with a blood relative nearer of kin than 2nd cousin.

¶62 In this case, Roger B. was never convicted of sexual assault. He was convicted of incest under Wis. Stat. § 948.06, an offense in which Kelli B.'s consent or non-consent was immaterial. Thus, Kelli's non-consent to incest was not established and remained a material issue of fact. She gave birth to three incestuous children, one of whom was conceived and born when she was 17, and two of whom were conceived and born when she was an adult. None of Kelli's children was born under circumstances in which she was incapable of giving consent to sexual intercourse as a matter of law.

¶63 In fact, Kelli testified under oath that she wanted the relationship with her father. At Roger B.'s sentencing hearing——which occurred on November 1, 2001, more than seven months before Monroe County moved to terminate Kelli's parental rights——Kelli testified that: "Well, I don't think [my father] should go to prison because it was just as much my fault as it is his, because I wanted the relationship." On cross-examination, the following exchange occurred:

Q Wouldn't you agree that in a normal parent child relationship that the parent bears some responsibility for the behaviors and activities of the child?

A Well, the thing is is it was my fault just as much as it was his because I wanted it just like he did.

. . . .

Q And you don't see anything wrong with the activity that occurred in this case?

A No.

¶64 In addition, in response to questions from the court, Kelli denied that her father had been physically abusive to her.

Q In the presentence report it says that there [are] some charges pending . . . . [A] charge of battery against your father and intimidation of a victim . . . . [H]e is accused of being physically and verbally abusive to you on two occasions. Are you saying that didn't happen?

A The verbal abuse was going on, but the physical abuse was not.

Q And the [PSI] report says that, and again the person who prepared the report didn't have the opportunity to talk to you, but said [Roger B.] threatened to kill you, and that if he goes to jail you're going to jail?

A That's not true.

Q That's not true. Okay. And it also says he is accused of strangling you to the point where you could not breathe?

A That's not true.

Q Do you know where somebody would come up with this kind of information if it's not true?

A I said it to get him away from me, so I lied about it.

Q So you lied to the authorities about what your father did?

A Yes.

¶65 The majority is probably correct in believing that this testimony is not credible; that Kelli B. was so victimized and traumatized by her father that she endured many years of extreme sexual abuse and three pregnancies without ever telling authorities; that even as an adult, she was unable to break free from her father's dominance; that even when her father was locked up in jail, she was still so susceptible to his influence that she came to court to lie repeatedly in his behalf.

¶66 In the book On Trial, America's Courts and Their Treatment of Sexually Abused Children (2d ed. 1991), Billie Wright Dziech & Judge Charles B. Schudson explain that:

Most [child victims of sexual abuse] disclose the incidents slowly and reluctantly over a period of weeks, months, or even years. Some live all of their lives without admitting to anyone what happened to them. Of former victims responding to the [Los Angeles] Times poll, 42 percent replied they told someone within a year, 21 percent said they waited more than a year, and 36 percent reported that they had told no one until asked by the interviewer. This response is indicative of the process that psychiatrist Roland Summit, after thousands of first-hand observations and consultations with professionals dealing with victims, described as the "child sexual abuse accommodation syndrome."

Summit noted that sexually abused children generally reveal five characteristics in coping with their dilemmas: secrecy, helplessness, accommodation (seeing oneself as responsible for the victimization), delayed disclosure, and retraction or recantation. Although he originally defined these patterns in terms of incest, increased experience with and understanding of child sexual abuse has led professionals to recognize that the syndrome appears in victims of extrafamilial abuse as well.

Dziech & Schudson, supra at 3-4.

¶67 Applying this analysis, a court could find that Kelli B. demonstrated classic symptoms of child sexual abuse, even as an adult, in failing to report incestuous molestation. However, because Kelli gave birth to three incestuous children over a period of several years, her case necessarily represents either extreme victimization or actual consent.[24]

¶68 In drafting the provision on "incestuous parenthood," the legislature must have considered the parenthood of a father who was the perpetrator of incest on his daughter. But in this constitutional challenge, we must also assume that the legislature contemplated incest's potentially extreme, psychologically damaging effect upon the daughter and the impact that this abuse would likely have on her fitness as a parent. The crux of this case is whether the legislature could determine that a person who is a severely traumatized victim of incest may be unable to satisfy the minimum responsibilities of parenthood without victimizing the person's children.

III. POLICY CONCERNS ABOUT INCESTUOUS PARENTHOOD

¶69 The majority appears to have no difficulty with the proposition that incestuous parenthood may be used as a ground to terminate the parental rights of a father who is the perpetrator "of long-term and continuous incest" with his daughter. If the daughter did not consent to incest, the father would be culpable of sexual assault as well as incest and should not be rewarded for his criminality by maintaining his rights to nonmarital offspring. This would be true even if the father had a substantial relationship with his child.

¶70 A more difficult question is posed when the state seeks to terminate the parental rights of a daughter who gives consent to sexual intercourse with her father. In this situation, the daughter would argue that she has a fundamental liberty interest in parenting her biological child and that she has a relationship with the child. The state could argue that the daughter is a lawbreaker, that she should not be rewarded for her lawbreaking, and that termination is required as a deterrent to similar lawbreaking. The daughter's argument would indirectly implicate the validity and constitutionality of the felony incest statute.

¶71 The most difficult question arises in a situation where the daughter does not consent to incest. What is the state's compelling interest in terminating the parental rights of a victim of incest?

¶72 Therapist E. Sue Blume writes that:

Incest is possibly the most crippling experience that a child can endure. It is a violation of body, boundaries, and trust. Unless identified and dealt with, the emotional and behavioral aftereffects can stay with the victim. The very defenses that initially protect the incest survivor later lock these problems into place, interfering with adult functioning and preventing healing or change.

E. Sue Blume, Secret Survivors, Uncovering Incest and Its Aftereffects in Women xiv (1990).


Case No.:		03-0060, 03-0061, 03-0062
Complete Title:
		In re the Termination of Parental Rights to Zachary B., Nathaniel B. and Michael B., Persons Under the Age of 18: Monroe County Department of Human Services, Petitioner-Respondent-Petitioner, v. Kelli B., Respondent-Appellant.
		REVIEW OF A DECISION OF THE COURT OF APPEALS 2003 WI App 88 Reported at 263 Wis. 2d 413, 662 N.W.2d 360 (Ct. App. 2003-Published)

Opinion Filed:		April 28, 2004
Submitted on Briefs:
Oral Argument:		October 20, 2003

Source of Appeal:
	Court:	Circuit
	County:	Monroe
	Judge:	Steven L. Abbott

Justices:
	Concurred:
	Dissented:	PROSSER, J., dissents (opinion filed). WILCOX, J., joins dissent.
	Not Participating:	ROGGENSACK, J., did not participate.

Attorneys:

(L.C. No.	02 TP 000009, 02 TP 000010, 02 TP 000011
STATE OF WISCONSIN :		IN SUPREME COURT

In re the Termination of Parental Rights to Zachary B., a Person Under the Age of 18: Monroe County Department of Human Services, Petitioner-Respondent- Petitioner, v. Kelli B., Respondent-Appellant.			FILED APR 28, 2004 Cornelia G. Clark Clerk of Supreme Court

In re the Termination of Parental Rights to Nathaniel B., a Person Under the Age of 18: Monroe County Department of Human Services, Petitioner-Respondent- Petitioner, v. Kelli B., Respondent-Appellant.

In re the Termination of Parental Rights to Michael B., a Person Under the Age of 18: Monroe County Department of Human Services, Petitioner-Respondent- Petitioner, v. Kelli B., Respondent-Appellant.