Wis. Stat. 968.255 (3) clearly states:  “No person other than a physician, physician assistant or registered nurse licensed to practice in this state may conduct a body cavity search.”

Wis. Stat. 968.225 allows for “strip searches” so long as certain guidelines are followed.  It defines “strip search” as “a search in which a detained person’s genitals, pubic area, buttock or anus, or a detained female person’s breast, is uncovered and either exposed to view or touched by a person conducting the search.”

In State v. Wallace, the Court of Appeals of Wisconsin shed light on the difference between a “strip search” and “body cavity search.”  Regarding the search in that case, it stated the strip search “became a visual body cavity search when the officer had the defendant bend over to expose his anus.”   Additionally, the court noted that since a body cavity search is more intrusive than a strip search, a person’s consent to a strip search does not constitute valid consent to the more intrusive body cavity search.

The U.S. Supreme Court views all searches of a person’s body as highly intrusive invasions of one’s privacy. Addressing only the limited “pat-down” search of a suspect in Terry v. Ohio, the Supreme Court explained that, “even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Because of their significantly greater degree of intrusiveness, searches such as the one conducted in this case are closely scrutinized when challenged under the Fourth Amendment.

The United States Supreme Court has long deemed searches of any kind an attack on the most sacred of our rights, namely, our personal liberty.  In that vein, I believe it is abundantly clear that our Supreme Court identifies a body cavity search as one of the most intrusive, humiliating, and degrading experiences to which a person can be subjected.  Similarly, the Seventh Circuit has described searches in Mary Beth G. v. City of Chicago “involving the visual inspection of the anal and genital areas as ‘demeaning, dehumanizing, undignified, humiliating, terrifying,unpleasant, embarrassing,  repulsive, signifying degradation and submission.’” For these reasons, and fundamental to our free society, it is imperative that we protect all our citizens from illegal body cavity searches by any means necessary within the confines of the law.

While this differs in every state, in Wisconsin two distinct statutes control what constitutes Child Abuse. The first statute, Wis. Stat. 948.03, defines exactly what constitutes Child Abuse. While there are differing degrees, this statute lays out three separate situations that constitute Child Abuse; Intentional Causation of Bodily Harm, Reckless Causation of Bodily Harm, and Failing to Act to Prevent Bodily Harm. In all three of these “bodily harm” is defined broadly as “physical pain or injury, illness, or any impairment of physical condition.” The statute defines “reckless” as “conduct which creates a situation of unreasonable risk of harm to and demonstrates a conscious disregard for the safety of a child.”[i]

The second statute, Wis. Stat. 939(5)(b), defines what constitutes “reasonable discipline.” This statute which refers to what is commonly known as parental privilege states: “When the actor’s conduct is reasonable discipline of a child by a person responsible for the child’s welfare. Reasonable discipline may involve only such force as a reasonable person believes is necessary. It is never reasonable discipline to use force which is intended to cause great bodily harm or death or creates an unreasonable risk of great bodily harm or death.”[ii]

When someone accused of Child Abuse asserts parental privilege, this constitutes an affirmative defense. Basically an affirmative defense is a fact that, if proven, negates or mitigates the legal consequences of someone’s otherwise illegal conduct.  Once this privilege is asserted the burden falls on the State to disprove the parental privilege defense.  There are three elements that must be true in order for parental privilege to work. The three elements in question are “(1) the use of force must be reasonably necessary; (2) the amount and nature of the force used must be reasonable; and (3) the force used must not be known to cause, or create a substantial risk of, great bodily harm or death.”[iii] If the State can prove that even one of these three factors is not present that is enough to overcome this defense.

While there are three elements that must be proven to successfully assert parental privilege there is one overarching question present in all three elements. What is reasonable? “Reasonable force is that force which a reasonable person would believe is necessary.”[iv] The Wisconsin Supreme Court has clarified that “[t]he test of unreasonableness is met at the point at which a parent ceases to act in good faith and with parental affection and acts immoderately, cruelly, or mercilessly with a malicious desire to inflict pain, rather than make a genuine effort to correct the child by proper means.”[v] There is no inflexible rule that defines what, under all circumstances, is unreasonable or excessive corporal punishment. Rather, the accepted degree of force must vary according to the age, sex, physical and mental condition, disposition of the child, conduct of the child, nature of the discipline, and all the surrounding circumstances.[vi]

[i] Wis. Stat. 948.03

[ii] Wis. Stat. 939(5)(b)

[iii] State v. KIMBERLY B., 699 NW 2d 641

[iv] WIS JI — CRIMINAL 950

[v] State v. Thorpe, 429 A.2d 785, 788 (R.I. 1981)

[vi] See WIS JI — CRIMINAL 950