*1 Further, complaint We conclude shall stand. adjudged it is ordered the defendant be and hereby greater diligence is admonished to use promptly comply requests with of a state directions grievance pursuant bar committee made Rule Bar Rules.
State, Respondent, Appellant. Driscoll, Argued January February 6, 1972. 3, 1972. No. State 107. Decided (Also reported 851.) in 193 N. W. 2d *2 appellant For the there was a brief & Shellow Walrath, Shellow and James M. Shellow and James A. all of Milwaukee, and oral James M. Shellow. respondent argued by
For the Richard cause was *3 Boyd, attorney J. general, assistant with on the whom general. attorney Robert Warren, brief was W. J.C. 944.11 and claims sec.
Hallows, vagueness (2), Stats., is unconstitutional of because and disagree. vagueness overbreadth. The of test of penal gives it statute is whether reasonable notice of prohibited the conduct would its those who avoid penalties. The test of lan overbreadth is whether the guage discourage of the so section broad as con expressly protected by i.e., duct constitution, the con right Connelly duct prohibit. the has no state v. Construction 385, General Co. 269 S. 46 U. Sup. 126, quoted 322, 70 Ct. L. often the Ed. void- for-vagueness citing Connelly rule. Recent cases noting vagueness distinction between and overbreadth 611, 616, Johnson (1968), are Cameron v. 88 U. S. Sup. 1335, 20 L. Ed. 2d Zwickler Ct. v. Koota 241, 249, Sup. 391, S. 389 U. Ct. L. Ed.
Vagueness procedural due-process rests re- quirement of a fair notice the defendant cannot con-
hypothesize to the but confined fact situations charged obviously the zone within duct it is when so prohibited man could of conduct that no reasonable George (1951), criminality. Jordan v. De doubt of its 703, Ed. Robinson Sup. U. S. Ct. L. Sup. Ct. v. 324 U. S. 89 Ed. 944. L. liberty fellatio are
The of indecent here involved acts cunnilingus can minds doubt there be no persons constitute reasonable such acts acts meaning of perversion clearly and are sex within organs. liberty Conse- indecent use the sex quently, hypothetical do not reach the we niceties applications test to other acts to this section scope of indecent or indecent definition of liberties express actual intention need whether be an element of the crime.1 given jury lib the definition of “indecent
The 1525, 1527, J 1529: erties” found Wis I—Criminal phrase . . ‘indecent liberties’ ‘such liberties “. means regard society in common would as sense as ” language improper.’ is taken decent and This analogized supra, Hoffman, note jury jury’s duty that of civil with such case duty determining care, rea what is reasonable argues time, or the like. Driscoll variable sonable vague- guilt void for renders statute standard *4 1 ambiguity “privates” the word in the Driscoll finds fact that 1525 v. comment to Wis J I—Crim. and 1527 cites State Nash 262, 536, “privates” (1929), which said 83 N. H. 145 Atl. included vicinity” The thereof. instructions themselves con the “immediate language. ambiguity also finds tain He the fact State 142, (1942), 707, 240 2 v. Wis. N. 2d W. which the Hoffman definition of “indecent liberties” these is taken instructions touching notes, of breasts. concerned the As the state State v. (sec. (1941)) under a arose statute 351.34 which did not Hoffman use “privates.” the word Evjue (1948), disagree. v. ness.2 In State Wis. 146, 159, 305, 33 N. it not violation W. 2d we held process public of due for a statute cast duty of or caution, care even sufficient if “there is warning obedience, to one that comes near bent proscribed area.” indecent or While liberties not a measurement, slide-rule common think what the we society regards improper sense as indecent to be sufficiently guideline person definite to alert a bent on obedience. permissible
While it is under the of over- breadth procedural which rests on rather than substantive grounds due-process hypothetical examples to raise of the applicability to section’s show the section deters protected activities, example we do not find Driscoll’s persuasive Only or valid to establish overbreadth. construction of strained “indecent terms liberties” Stats., “indecent use” in 944.11 give sweep such a for would be censured over- as meaning The normal and of the breadth. reasonable language must be found so broad its sanctions 289, 312, Driscoll cites Clemens v. Wis. 209, Remington Helstead, N. W. The Mental Element In Legislative Problem, 658, 644, Crime —A L. Rev. Wis. as criti penalties imposition ordinary negligence. cal criminal 940.06, 940.07, 940.08, 940.09, 940.24, The trial court noted secs. 941.01, 941.10, 941.20, 941.03, Stats., impose penalties for de grees negligence. imposes liability merely Sec. for a ordinary Woodington (1966), want care. State v. 31 Wis. 2d 151, 810, 753, 143 N. W. 2d found see. 189.19 vague although 1965, penalties imposed Stats. were for the fil ing security statements who in the exercise “reason care” misleading. able should have them known to be false or Ch. replaced by 189 was Law, Wisconsin Uniform Securities ch. Ragen (1942), Stats. 1969. 314 U. S. Sup. Woodington 86 L. Ct. Ed. cited State v. here, penal the trial court it requires is said the fact a statute jury weigh of reasonableness does make the vague. statute *5 constitutionally protected conduct
apply to can regulate a before statute not entitled to state (1971), 51 Wis. Starks for overbreadth. faulted 256, 259, 260, 186 2d inculpatory admission Driscoll error claims at South- by him to a social worker made statements The social in Lancaster. Mental Health Clinic western a degree work in social a had bachelor’s worker a neither administration but was business master’s training. Driscoll medical physician nor had on basis clinic on a self-referral came to the wife his to 25, 1968, Mrs. Driscoll stated November had relations with that her husband had worker social return On a daughter. such conduct. Driscoll denied her again denied such on December visit conduct, 1968, Driscoll made on December but had had in fact to the social worker statement worker the child. Driscoll stated the social relations with confidential. The social conferences were told him such was essential worker testified put in evidence at affidavits were two work and psychia- suppress, from a hearing the motion worker, from another clinic and one at the social trist stating confidentiality crucial. in such conferences was legal separation or was action for divorce
Since
conference with
social worker
and the
pending
family
commissioner,
of a
behest
court
not at the
argued
applicable.3
Stats.,
While it
247.081,
waiting
effort;
period for trial of ac
Reconciliation
“247.081
legal separation.
every
action for
for divorce or
tions
family
legal separation
court commissioner
shall
or
divorce
reconciliation
made to effect a
between
to be
an effort
cause
family
by
court
efforts and the efforts of
parties,
his own
either
referring
parties
department
or
if it exists
conciliation
voluntarily
town,
having
consult
the director of
them
county
county
department,
city
public
mental
village,
welfare
or
agency
clinic,
clergyman,
or a child
guidance
welfare
health
other suitable
The-
means.
under
48.66
licensed
ss.
*6
this
has
situation
all
earmarks of
the
a situation which
give
confidentiality,
calls for
the
testimonial
cannot
we
change
section
a
such
liberal construction as would
the
express
language
scope
applicability.
of
its
Research,
Lukaszewicz
Concrete
(1969),
v.
Inc.
43 Wis.
335, 342, 168
N. W. 2d 581.
accept
Nor can we
the
the
is
state
estopped
using
inculpatory
from
the
made
statements
Killough
the
social worker.
v.
Driscoll relies
United
(D.
1964),
Cir.
C.
336 Fed. 2d
v.
Rush
W. Va.
S. E.
Common
20; People
wealth v. Edwards
318 Pa.
Atl.
Rockover
v.
social government. ship to the con- urged privileged are to create law case governmental private relationship social for
fidential prerequisites possible four workers. This granting privilege been well of such testimonial Wigmore, p. Evidence, 2285. These stated originate con- (1) are: must The communications they disclosed; (2) fidence be will satisfactory to the full maintenance must essential relationship parties; (3) relation between the community, opinion which, in be one should ought sedulously fostered; injury to be *7 relationship by be disclosure must would inure greater thereby gained than correct benefit for the litigation. disposal of discussed Some authorities have application these to social workers and elements urges psychotherapists one and at least privileged creation of communication in area this new legislature.6 public policy think left to should be definitely compelling clear so or the area so grant limited that testimonial we should to social workers. court decision argues that one who sexual because commits necessarily a child intercourse indecent liber- with takes Relationship Privileged The Com Social and Worker —Client munications, Q. 362; Note, Com L.U. 1965 Wash. Confidential Psychotherapist: Privilege, munications New Testimonial A Suggested Privilege (1952), 384; Note, A U. L. Rev. Marriage Counsellors, Communications with 106 U. Confidential Privileged (1957), 266; LoGatto, Communication and L. Rev. Pa. Psycho- Worker, Lawyer (1962), 5; the Social The Catholic Privilege, therapy Legal Psycho- Q. wnd (1968), 307; 53 Mass. L. Privileged therapeutic Communications, and the Law of Professions Statute Wayne Note, State to Provide a L. A Rev. Psychotherapist Privilege, Leg. (1967), 307; 4 Harv. J. —Patient Privileged Weihofen, Communications Be- Guttmacher Psychiatrist Patient, tween 28 Ind. L. J. 6 LoGatto, supra, Lawyer, supra, note Catholic at 17. privates ties with the of a minor and consents to taking privates, indecent use of in- the crimes decent liberties and indecent an crime included of sexual intercourse with a child. intercourse While may taking be liberties, indecent indecent liberties some Although are may charged not intercourse. one be with only crime an may crime, included be convicted not both. See. Stats.7 The acts cunnilingus of fellatio and are not and it intercourse they place prior is clear took Al- the intercourse. though perversion may acts of sex and intercourse proximate time, the acts are distinct and the con- tinuity in time does not blend former acts into cunnilingus latter. Consequently, the acts fellatio and with a are child included crimes of inter- sexual although child, with a may course all three constitute liberty indecent or use. find no merit in the
We. information multiplicitous. present The facts do not series reality similar acts which are in continuous course adopted singular-act view, conduct. But even if we separate charges may single be based act if it provisions involves violation of several of the statutes. 939.65, Stats.;8 See sec. Chacon 73, 183 2dWis. N. W. 2d 84. prevent
Before trial Driscoll moved to state *8 cross-examining past him toas convictions. He had been eighteen years in prior convicted some the to Conviction, permitted. “939.66 Upon prose of crime included crime, may cution a for the actor be convicted of the either crime charged crime, may or an included but not An included crime both. any following: be “(1) require proof any A crime which does not of fact addi- proved charged; tion to those which must be for the crime . . .” permitted. Prosecution “939.65 under more than one section any punishable If act the for a forms basis crime under more than statutory prosecution may provision, proceed any under or all provisions.” contributing delinquency
present of to the trial, of it reached The court its until minor. reserved decision against it ruled case, the of at which time end the state’s any ground prevent harm on that he could the single the of admission conviction. authority of under On cross-examination the state pre Stats.,9 if had been 885.19, he sec. asked Driscoll viously had. he convicted of crime. Driscoll admitted putting By doing prevented from into so the state was crime; likewise, the but because evidence nature of the crime, not, the the of nature of Driscoll could without damage guilt, explain on the issue of himself relevancy to his conviction had truthfulness veracity. admitting court relied evidence, trial Rule American Institute Model Code on Law Whitty adopted of Evidence WMtty did While Wis. 2d admissibility impeach not involve the a conviction Whitty purposes, nevertheless the rationale of ment against relevancy balancing preju of the evidence guilt applicable. on the issue dice is to certain Rule of Model Code is restricted applies any types but evidence when the evidence judge probative value out- his discretion finds its weighed by risk its admission will have on the fair- Here, trial. of a crime admission which ness eighteen years revealing occurred before without its very prejudicial little effect nature would guilt. alone is de- issue While remoteness termining admissibility, it factor an element Although Stats., consideration. taken into be person-who A been of a “885.19 Convict. has convicted criminal notwithstanding, competent is, witness, hut the convic offense by may credibility, proved affect his either the record tion cross-examination, must own answer inquiry, party cross-examining to that and the relevant him not concluded his answer.”
(cid:127) oas c— impeachment pur allows evidence of conviction for poses, honesty it is not confined to crimes which relate to veracity. Rausch v. Buisse 154, 33 Wis. 2d 168, 801; Nicholas v. State N. W. 2d Wis. 2d Consequently, 11. N. 2dW. admissibility subject under this section to constitu is guarantees requiring tional process. a fair trial and due agree All the cited cases remoteness admissibility one which lies within the guide sound discretion of trial court. think adopted Whitty govern lines of that the exercise recognize problems discretion and the constitutional in volved. While another trial court could well dif facts, fered in the exercise of its discretion on these prepared we are not to hold an there was of dis abuse allowing cretion the evidence of this conviction record.
By Judgment and order affirmed. Court. — (concurring). Robert W. J. writer This Hansen, agrees ought majority grant with the court not this However, testimonial to social workers. ought ground the refusal so to do be based on setting policy public area and in this regard legislative part function, this govern- judicial function, tripartite under our form of legislature, courts, ment. It for the to deter- whether between social mine communications workers they privileged. serve or counsel are to be those 78; 10 Buel v. W. Luck Wis. 80 N. (D. 1965), 763; Cir. 2d States C. 348 Fed. Gordon v. v. United 1967), (D. C. Cir. 383 Fed. 2d United States (4th 1967), 2d Hildreth Cir. 387 Fed. United States v. (9th 1969), Allison 414 Fed. Cir.