Appeal from an order of the Circuit Court for Dodge County: Thomas W. Wells, Judge.
Gartzke, P.j., Bablitch, J. and Dykman, J. Dykman, J. (dissenting).
The opinion of the court was delivered by: Bablitch
The state appeals from an order dismissing a criminal complaint against the defendant for one count of misconduct in public office contrary to sec. 946.12(2), Stats. This crime is punishable as a Class E felony. The issue is whether an act of consensual sexual intercourse between a prison guard and a prisoner, occurring when the guard is on duty, is punishable as an act done and forbidden to be done in the guard's "official capacity" within the meaning of the statute. We agree with the trial court's determination that, under the circumstances of this case, it is not. We therefore affirm.
At the time of the alleged offense the defendant was employed as a prison guard at the Dodge Correctional Institution. A part of her duties was to maintain discipline among the prisoners in the ward she supervised. The complaint alleged that on three separate occasions, while on duty, the defendant had sexual intercourse with a prisoner in her ward. The prisoner in question testified at a preliminary examination that he and the defendant had sexual intercourse once in his cell, once in a neighboring cell, and once in the laundry room of the ward between April and October 1980. During this period, he said, there were approximately twenty to twenty-five prisoners on the ward. There is no indication in the record that any other person observed the acts of intercourse. *fn1 Similarly, there is no suggestion that the acts were other than purely consensual. The prisoner testified: "We had a relationship as a couple, a male/female relationship; sexual activities; gift givings."
The material portion of sec. 946.12, Stats., *fn2 provides:
Any public officer or public employe who does any of the following is guilty of a Class E felony:
(2) In his capacity as such officer or employe, does an act which he knows is in excess of his lawful authority or which he knows he is forbidden by law to do in his official capacity. [Emphasis supplied.]
At the time of the alleged offense the fornication statute, sec. 944.15, Stats., 1981-82, prohibited sexual intercourse between persons not married to one another. Fornication was then classified as a Class A misdemeanor. *fn3
The trial court determined that an act of fornication committed by a public officer while on duty did not, standing alone, constitute misconduct in office as defined by sec. 946.12(2), Stats. It stated:
[The state's] argument falls short of establishing . . . that the crime of fornication is one reasonably capable of being committed by a prison guard in his or her official capacity. Rationally, it is not an act which a prison guard is forbidden to do in his or her official capacity; it is forbidden to everyone, regardless of official capacity. It was not intended and should not be interpreted as an act "forbidden by law" within the meaning of Section 946.12. [Italics in original.]
We agree with the trial court's Conclusion. Although the meaning of the statute is far from clear, it requires on its face more than a mere violation of the criminal code by a public official. It requires both that the officer commit the act in an official capacity, and that the act be one which he is forbidden by law to do in an official capacity. We think this dual requirement of the statute evinces a legislative intention to confine the application of the statute to acts committed within the scope of public employment. The purpose of the law appears to be the prevention of the misuse of power entrusted to public officers, rather than the imposition of an additional penalty for conduct which is forbidden to all persons generally when that conduct is committed by a public officer or employee.
As the trial court noted, the legislative history of the statute supports this narrow interpretation. *fn4 Section 946.12, Stats., was created in its original form in 1953, as a part of a massive revision of Wisconsin's criminal code. The 1953 draft of the code was adopted with a delayed effective date, and with the proviso that it be ratified by the 1955 legislature before taking effect. Chapter 623, Laws of 1953. As originally enacted sub-sec. 946.12(2), then numbered sec. 346.12(2), was arguably broader than its present version because it pertained to any public officer who "n his capacity as such officer or employe, intentionally does an act which is . . . forbidden by law." The additional requirement that the act be one "which the officer knows he is forbidden by law to do in his official capacity " was added at the suggestion of an advisory committee whose revisions of the 1953 draft were largely incorporated into the draft that took effect in 1956. *fn5 Even prior to this narrowing amendment of the subsection, the comment attached to the 1953 draft stated, with respect to the section as a whole:
This is the general section on misconduct in public office; the section includes conduct sometimes treated under the separate headings of malfeasance, misfeasance, nonfeasance, extortion, and oppression. The section deals only with acts done by a public officer or public employe in his capacity as such officer or employe. A public officer or employe acts in his capacity as such officer or employe when the acts are done under color of the public office or employment; they are to be ...