State v. DeLain

• Decision Date: 26 April 2005
• Docket Number: No. 2003AP1253-CR.,2003AP1253-CR.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Michael A. DeLain, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

2005 WI 52

695 NW 2d 484

280 Wis.2d 51

State of Wisconsin, Plaintiff-Respondent, v. Michael A. DeLain, Defendant-Appellant-Petitioner.

No. 2003AP1253-CR.

Supreme Court of Wisconsin.

Oral Argument: December 6, 2004.

Opinion Filed: April 26, 2005.

For the defendant-appellant-petitioner there were briefs by Robert R. Henak and Henak Law Office, S.C., Milwaukee, and oral argument by Robert R. Henak.

For the plaintiff-respondent the cause was argued by Christopher G. Wren, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶1 PATIENCE DRAKE ROGGENSACK, J

Michael A. DeLain requests review of a published decision of the court of appeals, State v. DeLain, 2004 WI App 79, 272 Wis. 2d 356, 679 N.W.2d 562. The court of appeals affirmed a judgment of conviction, as well as an order denying post-conviction relief, of the circuit court for Brown County, the Honorable Richard J. Dietz presiding. We review whether the evidence presented to the jury was sufficient to sustain a conviction for sexual exploitation by a therapist, contrary to Wis. Stat. § 940.22(2) (2001-02),¹ and in particular, whether a finding that there was "an ongoing therapist-patient . . . relationship" during a therapy session is precluded if the victim was secretly recording that session in cooperation with police.

¶2 We conclude that, for the purpose of establishing criminal liability under Wis. Stat. § 940.22(2), whether there is an ongoing therapist-patient relationship is determined by examining the totality of the circumstances. We also conclude that J.F.'s assisting the police by recording her therapy session is not sufficient to preclude a finding that a therapist-patient relationship was ongoing. Further, based on the totality of the circumstances, which in this case included a stipulation that DeLain provided therapy to J.F. on all her visits, a rational trier of fact could have found beyond a reasonable doubt that an ongoing therapist-patient relationship existed on May 2, 2001. We therefore affirm the decision of the court of appeals, although on different grounds.

I. BACKGROUND

¶3 J.F., a 16-year old, had five psychotherapy sessions with Dr. Michael DeLain in April and May 2001. After the fourth session, on April 25, 2001, she told her family that she did not want to see DeLain again because he had sexually assaulted her during therapy. J.F. and her parents then went to the police. At law enforcement's request, J.F. returned for a final session with DeLain on May 2, 2001, to surreptitiously audio- and video-record the session. DeLain was subsequently charged with multiple criminal counts, including a count of sexual exploitation by a therapist under Wis. Stat. § 940.22(2) based on the allegation that DeLain had sexual contact with J.F. during the May 2, 2001 session.

¶4 A jury trial was conducted, wherein DeLain and the State stipulated to the following: "In April and May, 2001, Dr. Michael DeLain was a psychologist who performed psychotherapy on patients, including [J.F.]."

¶5 At trial, DeLain testified to the method of therapy he used to treat J.F., his diagnosis of J.F. and his efforts to assist J.F. He denied any sexual contact with J.F. and addressed specific acts that were alleged to have occurred. He also testified that when he told J.F. he would be reporting her sexual relationship with an adult to authorities, she became angry and threatened to make accusations against him. DeLain also called others to testify on his behalf, including social service agency employees, who testified that DeLain had made a report that J.F. was having sex with an adult, and other witnesses who testified to DeLain's nonexploitative character.

¶6 In closing argument, the State asserted that it was stipulated to and agreed upon that J.F. and DeLain had a therapist-patient relationship during the time period relevant to the conduct alleged to be criminal. In DeLain's closing argument, he did not disagree, but instead argued to the jury that no sexual contact occurred. The jury convicted DeLain of the count at issue in this review, as well as two of the other counts charged.

¶7 In a post-conviction motion, DeLain requested the circuit court to vacate the conviction for sexual exploitation by a therapist that resulted from the May 2, 2001 session because the evidence was insufficient to establish that the alleged sexual contact took place during an "ongoing therapist-patient relationship," as required by Wis. Stat. § 940.22(2). The circuit court denied DeLain's motion. The court of appeals affirmed, and we subsequently granted DeLain's petition for review.

II. DISCUSSION

¶8 Wisconsin Stat. § 940.22(2) prohibits sexual contact between a therapist and a patient or client. The statute states:

Sexual contact prohibited. Any person who is or who holds himself or herself out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist-patient or therapist-client relationship, regardless of whether it occurs during any treatment, consultation, interview or examination, is guilty of a Class F felony. Consent is not an issue in an action under this subsection.

Section 940.22(2).

¶9 To obtain a conviction for a violation of Wis. Stat. § 940.22(2), the State must prove three elements beyond a reasonable doubt: (1) that the defendant was or held himself or herself out to be a therapist; (2) that the defendant had intentional sexual contact with a patient or client; and (3) that the sexual contact occurred during an ongoing therapist-patient or therapist-client relationship.² State v. Miller, 2002 WI App 197, ¶17 n.5, 257 Wis. 2d 124, 650 N.W.2d 850; see also State v. Ambrose, 196 Wis. 2d 768, 777, 540 N.W.2d 208 (Ct. App. 1995) (holding that the actor and the complainant "must be engaged in a professional therapist-patient/client relationship").

¶10 DeLain contends there was not sufficient evidence to find the third element, that sexual contact occurred during an ongoing therapist-patient or therapist-client relationship, beyond a reasonable doubt. Our review of DeLain's contention, in light of actual trial testimony, presents us with a limited record because DeLain's defense was that sexual contact did not occur, not that there was no ongoing therapist-patient relationship. Rather than try the third element of Wis. Stat. § 940.22(2), DeLain stipulated that he was performing psychotherapy on J.F. during May 2001.³

A. Standard of Review

¶11 Notwithstanding the way in which this case was tried, we have been asked to determine when evidence is sufficient to prove that an ongoing therapist-patient relationship existed, as that phrase is used in Wis. Stat. § 940.22(2). This requires interpretation of § 940.22(2). Interpretation of a statute is a question of law that we review de novo. Johnson v. ABC Ins. Co., 193 Wis. 2d 35, 43, 532 N.W.2d 130 (1995). Additionally, when we review the sufficiency of evidence to support a conviction, we view the evidence in the light most favorable to the verdict and determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Ambrose, 196 Wis. 2d at 772 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

B. Wisconsin Stat. § 940.22(2)

¶12 To interpret the phrase "during any ongoing therapist-patient. . . relationship" in Wis. Stat. § 940.22(2), we begin by examining the plain meaning of the statutory language, in context, as is required by State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110. "[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole . . . and reasonably, to avoid absurd or unreasonable results." Id.

¶13 In interpreting the meaning of "during any ongoing therapist-patient . . . relationship," the court of appeals decision drew on Wis. Stat. § 939.23(3)⁴ to conclude that whether there was an ongoing therapist-patient relationship turned solely on DeLain's subjective belief. DeLain, 272 Wis. 2d 356, ¶¶10-12. The court of appeals explained, "[B]ecause the undisputed evidence is that DeLain believed the specific fact existed, namely that [J.F.] was a patient and this was part of the ongoing therapist-patient relationship, any acts that occurred during this session were during an ongoing therapist-patient relationship as those terms are used in the statute." Id., ¶12.

¶14 DeLain disagrees with the court of appeals, arguing that the therapist's belief that a therapist-patient relationship is ongoing does not establish that the relationship is actually ongoing in fact. The State also disagrees with the court of appeals' reasoning, conceding that the factual question of whether a therapist-patient relationship is ongoing does not turn solely on what the therapist knows. For reasons discussed at length below, we accept the State's concession.

¶15 DeLain further argues that the term "relationship," in the phrase "ongoing therapist-patient . . . relationship," requires a "two-way street," with both the therapist and the patient consenting to the continuing relationship. He asserts that the relationship "may be terminated, inter alia, by mutual consent of the parties, or by the unilateral action of the patient." As such, he argues that a patient who goes to the police to complain of sexual contact made by a therapist and agrees to cooperate in a criminal investigation during a subsequent therapy session has acted unilaterally to withdraw from the therapist-patient relationship and continues as only a "feigned" patient. He urges this court to conclude that based on that one circumstance he and J.F. did not have an ongoing therapist-patient relationship on May 2, 2001.

¶16 The State argues that, even if we accept its concession regarding the court of appeals' reasoning, we should nevertheless affirm the court of appeals decision. The State...