There is a controversy at the University of Wisconsin this week after the Dane County District Attorney’s Office in Wisconsin filed misdemeanor battery charges against three teens suspected in the brutal assault of a UW-Madison Chinese PhD student. The Asian community denounced the crime as race related (which the University denies). Asian students protested the treatment of the case at the university. Many objected to not only the rejection of hate crime charges but the use of misdemeanor rather than felony charges. The reason, however, appears a key distinction in the Wisconsin criminal code.

Alijah C. Johnson (19), Cashius E. Carter (18) and Abdoulah C. Traore-Flores (17) have pleaded not guilty to battery and disorderly conduct charges for the June 14 attack, according to the Wisconsin Court System website. A fourth minor was also arrested in the attack.

The same group was  accused of throwing a banana at another Chinese student earlier that night and allegedly carrying out two other battery incidents on June 12 against a white male and a Hispanic man. The fact that they attacked other races led the University to conclude that this was not a racial attack.

The reason for the misdemeanor charges appears to be the distinction under Wisconsin (and other states) between batteries that cause serious bodily harm or lesser injuries. Here is the provision:

“940.19  Battery; substantial battery; aggravated battery.

(1)  Whoever causes bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed is guilty of a Class A misdemeanor.

(2) Whoever causes substantial bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class I felony.

(4) Whoever causes great bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class H felony.

(5) Whoever causes great bodily harm to another by an act done with intent to cause great bodily harm to that person or another is guilty of a Class E felony.

(6) Whoever intentionally causes bodily harm to another by conduct that creates a substantial risk of great bodily harm is guilty of a Class H felony. A rebuttable presumption of conduct creating a substantial risk of great bodily harm arises if the person harmed has a physical disability, whether congenital or acquired by accident, injury or disease, that is discernible by an ordinary person viewing the physically disabled person, or that is actually known by the actor.”

While the student in this case might challenge the characterization of having minor injuries when he was left with extensive bruises and a bleeding head, prosecutors tend to look for hospitalizations or serious medical interventions as evidence of serious bodily injury.

The problem is that this means that, so long as you confine these attacks to simple beat downs, you can avoid a felony charge even though there is a pattern of alleged attacks. It would seem more appropriate to allow felony charges not only for serious bodily injuries but for a pattern of multiple such attacks. Instead, such pattern evidence can be weighed in the sentencing on the misdemeanor charges.