TORTIOUS STANDARD, TORTUROUS RESULTS: IMPROVING THE APPROACH TOWARD CONTRIBUTORY CONDUCT UNDER WISCONSIN'S CRIME VICTIM COMPENSATION STATUTE.

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. [ABSTRACT FROM AUTHOR]