Updated 4/11/24 to correct End Domestic Abuse Wisconsin acronym.
Applying a U.S. Supreme Court criminal case ruling to state harassment civil litigation could make it harder for domestic abuse survivors and other harassment victims to get injunctions against abusers, an anti-domestic violence organization argued in a brief filed with the state Supreme Court.
"This court should hold that Counterman does not change the current law and practice ... and imposes no additional burdens on petitioners seeking civil injunctions against their abusers and harassers, even in cases involving threatening speech," End Domestic Abuse Wisconsin (EDA) said in an amicus brief.
EDA described itself "as statewide coalition led by social-policy advocates, attorneys, and experts working to support, empower, and lead organizations for social change to end domestic violence and abuse."
The court last month heard arguments in Kindschy v Aish, in which abortion protester Brian Aish is challenging an injunction prohibiting him from being near a Planned Parenthood clinic where nurse Nancy Kindschy sometimes worked.
Among other things Aish told Kindschy, according to a Court of Appeals decision upholding the injunction, was “You have time to repent," and "You will be lucky if you don’t get killed by a drunk driver on your way home. Bad things are going to start happening to you and your family.”
During oral arguments last month, Aish attorney Joan Mannix told the justices that Aish's speech was protected by the First Amendment and came "from a place of love and non aggression."
Before the argument and while the Aish case was pending, the U.S. Supreme Court issued a decision in Counterman v Colorado, ruling that the First Amendment requires the state, in a criminal prosecution, to show that a defendant had some "understanding of the threatening nature of his statements” to be convicted of making "true threats" of violence.
After that decision, the state Supreme Court asked for briefs on how SCOTUS's decision affected the Aish case. EDA and the state Department of Justice (DOJ) each filed an amicus brief. This post looks at EDA's; DOJ's will be a future topic.
EDA argued that the state's civil harassment injunction statute, §813.125, already requires a showing that the respondent "has engaged in harassment with intent to harass or intimidate the petitioner."
"The intent requirement...is more than sufficient to address the First Amendment concerns expressed in Counterman," the brief said. The state intent requirement also differs from the Colorado criminal law challenged in Counterman because the the Colorado criminal law included no requirement of intent or knowledge of wrongdoing on the part of the alleged harasser.
In Wisconsin, "to grant an injunction, the circuit court judge must find reasonable grounds to believe that the respondent 'has engaged in harassment with intent to harass or intimidate the petitioner.' ... The circuit court’s finding ... necessarily encompasses the finding required by Counterman ...‘ " EDA said.
Applying Counterman to the state civil proceedings also would impose more burdens on a process already difficult for domestic abuse and other harassment victims, the brief said.
It already is not always easy to produce the evidence needed for an injunction.
"The task is especially difficult when harassers and abusers use sinister yet ambiguous language — such as 'be careful when you walk home alone' — or veiled and coercive language — such as 'I love you; I would never do anything to hurt you,' " the organization said. "Absent necessary context, these words may not appear threatening or harassing, and abusers may falsely testify at a hearing that they never intended to harass or intimidate."
Adding a new legal burden to the petitioner's requirements that is "focused on the abuser’s awareness of the threatening nature of his statement" would give an abuser another opportunity to argue against an injunction, EDA said.
"That is, even if the judge found that a respondent intended to harass or intimidate the petitioner, the respondent could still argue that he was 'unaware' that someone could view his statements as threatening and could falsely testify to that effect," the amicus said.
EDA is represented in the case by attorneys Arthur Greenspan, Evelyn Pang, Kathleen Wills, Andrew Dufresne, and Jacob Neeley.
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