Each year in Wisconsin, thousands of victims of violent crime apply
for state-sponsored compensation under the Crime Victim Compensation
(“CVC”) statute, as they are constitutionally entitled to do. However, the
CVC statute excludes from compensation any victim whose conduct
“substantially contributed” to their injury or death. This standard replicates
Wisconsin’s basic test for causation in negligence cases; a crime victim
“substantially contributed” to their injury or death if their conduct was a
substantial factor in causing it.
As this Comment explains, the contributory conduct limitation’s
causation analysis is incomplete. In negligence cases, Wisconsin courts look
to several public policy factors to limit tortfeasors’ liability, even where their
negligent conduct was a substantial factor in bringing about the plaintiffs’
injuries. The CVC statute’s “substantially contributed” standard involves no
such public policy inquiry, which leaves the question of legal causation
unanswered. Exacerbated by administrative rules that articulate a myriad of
forms of contributory conduct for CVC adjudicators to scrutinize—including
the victim’s consent, provocation, drug and alcohol consumption, recent
criminal history, and incarceration status—the CVC statute’s contributory
conduct limitation supplies punishingly broad grounds for dismissing
meritorious CVC claims. This tortious standard wreaks torturous results—it
fails vulnerable crime victims and the intent of the Wisconsin State
Legislature.
This Comment argues that the CVC statute’s “substantially
contributed” standard must be changed and offers three improved
alternatives. The first proposed approach increases the State’s burden of proof
as to the contributory conduct limitation; it would oblige the State to prove
that a victim substantially contributed to their injury or death beyond a
reasonable doubt. The second proposed approach resembles Wisconsin’s
contributory negligence statute. Denying a CVC claim under this approach
would require a finding that the victim’s contributory conduct was a greater cause of their injury or death than the perpetrator’s criminal conduct. The
third proposed approach adopts an adapted version of the first three public
policy factors used to determine the scope of liability in negligence cases.
This Comment ultimately advocates for the third, or “public policy
factors,” approach. The “public policy factors” approach is optimal because
it entails minimal procedural strain, is legally robust, and recaptures the
legislative intent of the CVC statute. In essence, this Comment encourages
an approach toward contributory conduct that increases victims’ access to the
funds they need and deserve.
