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Crime victim civil recovery in Wisconsin (Wisconsin Statutes section 895.446 claims)

Posted by attorney Nick Passe

If you are the victim of a certain crimes in Wisconsin, in addition to your rights under the Wisconsin Victim Rights Act, you may be able to recover an enhanced civil judgment against the criminal. The purpose of this guide is to provide some background about the statute, explore the reasons you may want to pursue such an action, the normal problems associated with such an action, and what to do if you decide you want to proceed.

Background

The Wisconsin Legislature have created civil liability for criminal acts which can be enforced by crime victims against defendants. Creating this civil liability serves the goal of reducing the overall workload of County and Wisconsin Department of Justice prosecutors. In some cases, a prosecutor may not feel he/she has the ability to prove criminal liability for an act to the high "beyond a reasonable doubts" criminal standard. The evidence may not be strong enough to justify dedicating substantial prosecutorial resources to the case. Sometimes a prosecutor may have adquate evidence and still decide against prosecuting a defendant for policy or resource allocation reasons. Prosecutors are often reluctant to pursue criminal cases against defendants where they feel adequate civil recovery means available or the nature of the relevant act suggested a risk of the negative event which the victim knew of or should have known of. For example, a prosecutor may refuse to prosecute a person who refuses to return property to a rent-to-own store or a person who probably provided a fraudulent pay stub to secure a payday loan or who was ripped off in a drug deal or a tenant who doesn't pay rent but refuses to leave his apartment.

The StatuteWisconsin Statutes Annotated section 895.446

Wisconsin Statutes 895.446 allows crime victims to bring civil lawsuits against criminals and win if they establish their case by the lower "preponderance of the evidence" standard. A criminal conviction for the same act is not necessary (though such a convicton can be helpful in establishing civil liability).

Please note that not all crime victims are able to benefit from the provisions of 895.446. Only the following statutes qualify:

  1. Wisconsin Statutes 943.01 - criminal damage to property
  2. Wisconsin Statutes 943.20 - theft
  3. Wisconsin Statutes 943.21 - Fraud on hotel or restaurant keeper, recreational attraction, taxicab operator, or gas station
  4. Wisconsin Statutes 943.24 - Issue of worthless check
  5. Wisconsin Statutes 943.26 - Removing or damaging encumbered real property

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