Women and Justice: Court: Wisconsin Supreme Court

Domestic Case Law

Byers v. Labor and Indus. Review Comm. Wisconsin Supreme Court (1997)

Sexual harassment

Here, the petitioner obtained a restraining order against her co-worker who had constantly harassed the petitioner and repeatedly made sexual advances towards her. The co-worker violated the restraining order and the petitioner complained to her employer to take measures to stop the harassment. Despite her complaints , the co-worker was not terminated, suspended or reprimanded for his sexual harassment. The petitioner finally filed a complaint with the Equal Rights Division of the DILHR “alleging sex discrimination by the employer for allowing the co-[worker] to sexually harass her at work in violation of WFEA.” The DILHR held that it did not have jurisdiction to hear her case because the Worker’s Compensation Act (WCA) provided her sole remedy for her work-related injury. The WCA exclusive remedy provision “mandates that when the conditions for an employer’s liability under the WCA exists, the employee’s right to recover compensation under the WCA shall be the employee’s exclusive remedy against an employer.” Since the petitioner had previously raised a complaint under the WCA for her employer’s failure to take action to remedy the sexual harassment and that complaint had been dismissed, the petitioner no longer had any remedies available.


Kelley Co., Inc. v. Marquardt Wisconsin Supreme Court (1992)

Gender discrimination

Plaintiff Marquardt took eight weeks off for maternity leave and vacation.  During that time, her supervisor reorganized the division in which she worked and redefined her responsibilities.  He did not inform her of these changes.  Included in the reorganization was the elimination of plaintiff’s position as credit manager.  The position was divided into two positions, and Marquardt’s supervisory responsibilities decreased.  Her new position also involved 25% clerical work, whereas in her old position, she had no clerical work.  She received the same pay and benefits and had the same office as her prior position.  The Court found that the plaintiff in this case was not returned to her equivalent employment position after her return from maternity leave, which is required under the Family Medical Leave Act (FMLA).  It held that although an employer may reorganize a department while an employee is on leave, and give an employee new job duties, it must still give the employee equivalent job duties.  An equivalent employment position “means a position with equivalent compensation, benefits, working shift, hours of employment, job status, responsibility and authority.”  It also held that the plaintiff was properly awarded back pay and that plaintiff’s “interim earnings and amounts earnable with reasonable diligence should be considered when back pay is awarded under the FMLA.”



State v. Friedrich Wisconsin Supreme Court (1987)

Sexual violence and rape

Defendant was convicted of two counts of second-degree sexual assault for assaulting his 14-year old niece by marriage.  The Wisconsin Supreme Court held that the trial court correctly refused to allow a psychologist for the defense to testify that the defendant did not fit the psychological profile of incestuous sex offenders.  It held that testimony regarding defendant’s sex acts against minors was admissible.  It also held that testimony by an adult woman of defendant’s 13, although an error, was harmless error.  The court agreed that the testimony of the two individuals regarding sex acts against minors was admissible because it showed a “general scheme or motive to obtain sexual gratification from young girls” under Wisconsin evidentiary law.  It agreed that admitting the testimony of the woman who alleged 13 was error since it did not similarly show a general scheme, but that admission was harmless error since it was not possible that the error contributed to the defendant’s conviction.  The court noted that the trial court applies a two step process to determine whether evidence of other crimes is admissible, looking at whether it falls into one of the exceptions listed in the applicable statute, and second determining whether prejudice outweighs the probative value of the evidence.  Additionally, in sex crime cases involving children, the court noted that there is “greater latitude of proof as to other like occurrences.”



State v. Felton Wisconsin Supreme Court (1983)

Domestic and intimate partner violence

The court held that lawyer’s representation of domestic violence victim/ criminal defendant constituted ineffective assistance of counsel where lawyer failed to inform himself of statutes regarding heat-of-passion manslaughter defense to first-degree murder charge and failed to consider the defense of not-guilty due to mental disease or defect, or make meaningful investigation into facts that would support the defense.  The defendant was married to her husband for twenty-three years; during that time her husband severely abused her and her children.  Defendant shot and killed her husband while he was asleep.  Her counsel used the “battered spouse” defense, claiming that she acted in self-defense.  The jury received instructions on first degree murder, second degree murder and manslaughter and on the privilege of self defense.  However, “there was no request for instruction on heat-of-passion manslaughter.”  After her conviction by a jury of second degree murder, appellate counsel brought a post-conviction motion arguing trial counsel was ineffective.  The trial attorney admitted that he was not “well-versed in criminal law.”  Although he practiced for three years, his practice had not been in Wisconsin and he never “handled an entire felony case.”  He acknowledged that he was probably incompetent to handle a case of this magnitude.”  The court held that “counsel’s conduct did not rise to the standard expected of a prudent lawyer reasonably skilled and versed in the criminal law.”  It also found that the “conduct of counsel prejudiced the defendant by depriving her of important defenses.”  Therefore, it held counsel was ineffective.  It reversed the portion of the court of appeals decision which found defendant guilty and affirmed the part which ordered a new trial on the “question of criminal responsibility.”