Extortion Over an Alleged Sexual Assault

[summertimesky]

My question involves criminal law for the state of: Wisconsin

My cousin came to me last week asking me for some help. We have been like brothers growing up and I want to help him the best way I can. He is afraid of asking for legal help, so I feel I need to ask.

Three years ago he married a girl that he's been best friends with for 12 years. They lived in Mississippi at the time. A year later on the exact date of their one year anniversary, their son was born. His wife was feeling homesick, so they moved to Wisconsin (where her family lived). Three months later, she cheats on him. They only way he found out was because she came to him and told him she thought she might be pregnant by another guy. A week later, she moves out and in with the guy she was sleeping with taking their son with her.

It wasn't until last week that he told me he had had sex with his wife while she was asleep before she became pregnant.. He said he didn't know she was asleep because she was going with the motions of a couple having sex. He said that over the past 2 years since she left him, she has been blackmailing him with that incident demanding for money from him and threatening that he will never see his son again if he doesn't do this or that for her. He says that she tells him that if he doesn't give her "x" amount of dollars or do something for her, she will go to the police. He has always given in to her demands because he says that she is verbally abusive to him and makes him feel less than a person. He said she has made him feel like an object instead of a person because of his mistake. He says he does whatever she wants because he doesn't want to lose his son.

He has paid child support, never been behind or owed for it, and has never had any trouble with the law before. He also told me that because of how she has made him feel, he wrote down his feelings in a journal, documenting why he felt this way. She stole the journal and says she will use it as evidence if he doesn't do what she tells him to. He says he doesn't know what to do. He said he is afraid of losing his son for good and can't live without him.

I am not taking sides in this matter. If he did sleep with his wife when he knew she was sleeping, i believe he did wrong. But i also love my cousin very much and don't want to see him treated this way, living in fear everyday.

I asked him specifically what he wants to know yesterday, which I wrote down:

1. Is there something he can do about the blackmail?
2. Is there something he can do about her threatening him that he will never see his son again?
3. Is it legal to use a journal as evidence?
4. How easy is it to prove sexual assualt or rape just from a journal?

I sincerely thank you for responding. I am trying my best to help my cousin out the best way i can. I don't want him to live scared anymore.

Thank you again.

[Swarley]

Your best bet is to have him contact a criminal defense attorney. Attorney-client privilege is in place so that he doesnt have to worry about repercussions of seeking legal advice.

I don't know what to tell you about the blackmail, other than to try and document it. From what I read, Wisconsin is a one-party consent state in regards to recording phone conversations. Recordings are not admissible as evidence in civil cases, but I don't see anything stating they are not allowed in criminal cases. Again, an attorney in your area familiar with local laws will be able to give you better guidance here.

As far as the journal, if you're asking because you want to know if the wife can use it as evidence against him then the answer is no. It would be hearsay.

[Mr. Knowitall]

It wasn't until last week that he told me he had had sex with his wife while she was asleep before she became pregnant.. He said he didn't know she was asleep because she was going with the motions of a couple having sex. He said that over the past 2 years since she left him, she has been blackmailing him with that incident demanding for money from him and threatening that he will never see his son again if he doesn't do this or that for her.

He can discuss this with a divorce lawyer, and explain to his lawyer why he believes this accusation is credible. If that's all there is to it, and no complaint has ever been made, I expect his divorce lawyer will tell him to get a divorce and custody order, and move on with his life.

He says that she tells him that if he doesn't give her "x" amount of dollars or do something for her, she will go to the police. He has always given in to her demands because he says that she is verbally abusive to him and makes him feel less than a person.

So either he's not telling you the whole story or he needs to learn to stand up for himself.

He has paid child support, never been behind or owed for it, and has never had any trouble with the law before.

So... did you leave out the part where he got divorced, and a custody and visitation order were entered?

He also told me that because of how she has made him feel, he wrote down his feelings in a journal, documenting why he felt this way. She stole the journal and says she will use it as evidence if he doesn't do what she tells him to.

So he wrote, "I had sex with my wife, she responded like she was awake, she later said she was asleep, I feel guilty if she's telling the truth, and she's blackmailing me," and... how could that hurt him? He should discuss the entire story with a divorce lawyer.

1. Is there something he can do about the blackmail?

Not pay?

2. Is there something he can do about her threatening him that he will never see his son again?

Get a divorce and visitation order.

3. Is it legal to use a journal as evidence?

If you write a confession to a crime in your own handwriting, that could potentially be used against you in subsequent litigation.

4. How easy is it to prove sexual assualt or rape just from a journal?

I can't read it from here.

From what I read, Wisconsin is a one-party consent state in regards to recording phone conversations. Recordings are not admissible as evidence in civil cases, but I don't see anything stating they are not allowed in criminal cases.

You appear to be suggesting that the husband record his wife's attempts to extort money or admission that she stole his journal. Why do you state that a lawfully made recording of a telephone conversation would not be admissible in a civil case?

As far as the journal, if you're asking because you want to know if the wife can use it as evidence against him then the answer is no. It would be hearsay.

Please don't make stuff up. You don't know anything about the rules of evidence, and this is dangerously, wildly wrong.

Statements against interest and admissions of a party opponent are admissible as evidence. See Wis. Stat. Sec. 908.01(4)(b); 908.045(4). If he confesses to a crime in his journal, a hearsay objection won't keep it out of court.

[Swarley]

You appear to be suggesting that the husband record his wife's attempts to extort money or admission that she stole his journal. Why do you state that a lawfully made recording of a telephone conversation would not be admissible in a civil case?

I was basing that off this statute-

885.365  Recorded telephone conversation.
885.365(1) (1) Evidence obtained as the result of the use of voice recording equipment for recording of telephone conversations, by way of interception of a communication or in any other manner, shall be totally inadmissible in the courts of this state in civil actions, except as provided in ss. 968.28 to 968.37.

Please don't make stuff up. You don't know anything about the rules of evidence, and this is dangerously, wildly wrong.

Statements against interest and admissions of a party opponent are admissible as evidence. See Wis. Stat. Sec. 908.01(4)(b); 908.045(4). If he confesses to a crime in his journal, a hearsay objection won't keep it out of court.

I was operating under the assumption that he meant it was his wife's journal where she had recorded the alleged incident, and would be using it to prove the truth of her claim. If it is in fact his journal, then I agree. Sorry for any confusion.

[Mr. Knowitall]

That's an oddity; a state lets you make a recording but prohibits you from using it in a civil matter. If the goal is to get somebody to make a damaging statement on tape, best then, it would seem, to record in person.

[summertimesky]

I apologize. I did forget to say that he is still legally married to this woman. When i asked him stay married to someone like her, he said he doesn't want to but he can't afford it because he would have to pay for it. I asked him why he thought that and he said a lawyer told him. Now, i am divorced in the state of mississippi. When i got divorced, me and my ex wife were ordered to split the cost. I don't know the laws of wisconsin, but i don't believe he would have to pay it all. I didn't tell him that because, like i said, i'm not sure of the laws there.

Yes, it was in his own journal. He obviously wouldn't tell me what he had written, so i didn't push the matter. But yes, it was in his journal that she stole.

[Mr. Knowitall]

I don't know what you can tell him other than to try to find a way to fortify his backbone. He needs to make the decision to divorce, to secure his custody and visitation rights and to move on with his life.