It is reasonable to think that, even if the court had found the statute ambiguous, it would have affirmed the conviction of Kaster. As the court noted, regardless of when his formal duties as coach may terminate, the contract plainly provided it was for the entire school year.
However, it is obvious that the courts interpretation goes far beyond what the legislature intended. The very name of the crime is sexual assault of a student by a school instructional staff person. (emphasis added).
Yet the courts interpretation would include, within its realm, as it acknowledged, a soda delivery man or an usher at a sporting event. Such a person might not even be 18 years old, and could be younger than the victim.
Furthermore, the courts interpretation is so broad, encompassing volunteers, and anyone who provides any undefined services, that there is nothing that would bar prosecution of one student of the school for having sexual contact with another student, merely because the first student ushers or keeps track of statistics for the school at sporting events.
An interpretation that permits conviction of one student, based on sexual contact with another student (who could actually be older than the defendant), under a Class H felony entitled sexual assault of a student by a school instructional staff person is patently overbroad and absurd.
The consequences of a sec. 948.095 conviction for such a person would be entirely out of proportion with the crime as well. A conviction under the statute qualifies as a serious child sex offense under the two strikes law, sec. 939.62(2m)(a).
A person convicted under the statute is also ineligible for boot camp under sec. 302.045. Furthermore, in many cases where facts support a conviction under sec. 948.095, they will also support a conviction for child enticement under sec. 948.07(1), a Class D felony.
Here, the defendant falls comfortably within the realm of people that the legislature probably intended to make subject to the statute. Faced with prosecution of someone that clearly was not within that realm, however, defense attorneys should vigorously attempt to distinguish this case, and argue that the courts entire reasoning is only dicta. The court could easily have affirmed this conviction based solely on the fact that, on its face, the contract encompasses the entire school year.
An interesting question would be posed if the assault occurred neither during the athletic season, nor during the school year, but over summer vacation, when no contract is in effect. Presumably, using the courts reasoning, even the minor contacts with school officials regarding planning and budgeting would be sufficient services to still expose the coach to criminal liability under the statute, but the question is certainly subject to debate.
– David Ziemer
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David Ziemer can be reached by email.