Can Wisconsin parents be prosecuted for crimes their children commit?

Michigan Law – Involuntary manslaughter

Prosecutors in Michigan argued the Crumbleys violated a law called involuntary manslaughter.  Wisconsin does not have a law called involuntary manslaughter, so let’s start by dissecting the Michigan law.

Michigan, like Wisconsin, relies on jury instructions when considering criminal charges.  Michigan Model Criminal Jury Instruction 16.10 indicates the elements of involuntary manslaughter are as follows:

• Firstly, the defendant caused the death of the victim. That is, the victim died as the result of the defendant’s action.
• Secondly (not required for all involuntary manslaughter cases, but it applied in the Crumbley case), in doing that act that caused the victim’s death, the defendant acted in a grossly negligent manner.
• Thirdly, the defendant caused the death of the victim without lawful excuse or justification.

Gross negligence has its own instruction.  But it requires the defendant willfully disregard the potential results that might follow from an act or failure to act.  Prosecutors must prove the following elements beyond a reasonable doubt in order to show gross negligence:

• Firstly, the defendant knew of the danger to another, that is, he knew that there was a situation that required him to take ordinary care to avoid injuring another.
• Secondly, the defendant could have avoided injuring another by using ordinary care.
• Thirdly, the defendant failed to use ordinary care to prevent injuring another when, to a reasonable person, it must have been apparent that the result was likely to be serious injury.

So how were the Crumbley parents prosecuted?

Neither of the Crumbley parents were present for the Oxford High School shooting.  Instead, the parents’ involvement revolved around the fact that they had purchased Ethan a firearm for Christmas.  On November 27, 2021, Jennifer Crumbley posted on Instagram a photograph indicating “Mom & son day testing out his new Xmas present.”  The photograph showed the shooting target the two had used at a local range.  Three days later, Ethan went in the boys’ bathroom between his classes, removed the same firearm from his backpack, and walked down a long hallway while shooting at this classmates.  He killed four students and injured another seven people.

Remember, the first element requires prosecutors to show “the victim died as a result of the defendant’s action.”  The Crumbleys’ providing the gun is the action prosecutors allege resulted in the four deaths.  Skipping to the third element, there isn’t a lawful excuse or justification that applied in this case.

So, was it “gross negligence,” the second element?  The first element of gross negligence requires that the Crumbleys knew of the danger to others.  Prosecutors proved that by discussing Ethan’s significant mental health and emotional issues, indicating that the parents knew of the danger he presented while armed with a firearm.  The second and third sub-elements deal with ordinary care and the defendant’s efforts to mitigate the potential harm of their actions.  Neither was present in this case.

The Wisconsin Equivalent – 2nd degree reckless homicide

Second degree reckless homicide is the closest Wisconsin equivalent to Michigan’s involuntary manslaughter law.  Prohibited in section 940.06 of the Wisconsin Statutes, the law states:

(1) Whoever recklessly causes the death of another human being is guilty of a Class D felony.

The keen reader will quickly notice a big difference here: Michigan relies on “gross negligence,” while Wisconsin relies on recklessness.  Let’s consider the elements of 2nd degree homicide and then discuss this difference:

• Firstly, the defendant caused the death of the victim.
  • Cause means the defendant’s act was a substantial factor in producing the death.
• Secondly, the defendant caused the death by criminally reckless conduct.
  • Criminally reckless conduct means the conduct created a risk of death or great bodily harm to another person,
  • The risk of death or great bodily harm was unreasonable and substantial, and
  • The defendant was aware that his conduct created an unreasonable and substantial risk of death or great bodily harm.

Would the actions of the Crumbleys qualify as “criminally reckless conduct” in Wisconsin?

Gross negligence and criminally reckless conduct are similar in many ways.  But would prosecutors have obtained a conviction against the Crumbleys in Wisconsin?

• Michigan prosecutors argued that the Crumbleys giving the gun to Ethan was a substantial factor in producing the deaths of individuals at the school.  This is the first element of 2nd degree reckless homicide, and a jury found that prosecutors proved it beyond a reasonable doubt.
• Did the Crumbleys create a risk of death or great bodily harm to another person?  This is an easy one, and it’s easy to see how a jury would find this element proven.  Providing a firearm to Ethan Crumbley, an individual with significant mental health issues, created a risk that he’d use it on other individuals.  Using a gun – shooting someone – certainly qualifies as great bodily harm, if death did not occur.
• Was the risk of death or great bodily harm unreasonable and substantial?  In other words, did providing Ethan the gun create an unreasonable and substantial risk?  The Crumbleys certainly didn’t expect Ethan to shoot up his school.  But should they have known, based on his issues, that providing him the firearm created an unreasonable and substantial risk?
• And finally, were the Crumbleys aware that their conduct created an unreasonable and substantial risk of death or great bodily harm?  Again, the Crumbleys certainly didn’t know Ethan was going to shoot anyone with the firearm.  But should they have known?  Would an objective actor put in their position know?

We’re not members of the jury (or judge, in a court trial), deciding the Crumbleys fate.  But as criminal defense attorneys, we see a few places we’d be able to argue for their defense.

Party to a crime liability – a way for parents and children to be prosecuted together.

Section 939.05 of the Wisconsin Statutes describes party to a crime liability.  The statute indicates:

(1) Whoever is concerned in the commission of a crime is a principal and may be charged with and convicted of the commission of the crime although the person did not directly commit it and although the person who directly committed it has not been convicted or has been convicted of some other degree of the crime or of some other crime based on the same act.

(2) A person is concerned in the commission of the crime if the person:

(a) Directly commits the crime; or

(b) Intentionally aids and abets the commission of it; or

(c) [Is involved in a conspiracy to commit the offense].

Let’s consider an example: Father purchases gun for son, and father knows son is going to use the firearm to kill a classmate.  Son then uses the firearm and kills his classmate.  The son in this situation will likely face charges for first-degree intentional homicide.  But what about father?  Prosecutors would likely charge father using a party to a crime theory, specifically that father “aided and abetted” the commission of the crime.  He did this by purchasing the firearm while knowing what the son would use the firearm for.  Importantly, even though he didn’t pull the trigger, party to a crime liability results in the father facing the same charges, penalties, and prosecution as the son.

This theory was not used in the Crumbley prosecution, but could easily be used to prosecute any parent/child pair that planned to commit a crime together.  It isn’t limited to homicide charges but can apply to any crime.  Finally, party to a crime liability doesn’t apply to just parent/child groups, but any group of individuals that come together to commit a crime.

Are you facing criminal charges for the actions of your child? Call Van Severen Law Office, S.C. for help.

Clients, courts, criminal defense attorneys, and our opponents recognize Van Severen Law Office, S.C. as one of the best criminal defense law firms in Wisconsin.  Our criminal defense attorneys regularly represent individuals throughout the state facing serious criminal charges.  Whether you’re a parent charged with a crime in connection to your child’s activities, or you’re simply an individual charged violating the law on your own, we’re prepared to help.  We’ve successfully defended thousands of individuals facing misdemeanors and felonies.

Party to a crime prosecutions happen on a daily basis throughout Wisconsin.  Helping your child to commit a crime will lead to criminal liability using this basic legal principle.  But it’s a lot more rare for parents to be prosecuted in the same way that the Crumbleys were.  And while we couldn’t find any evidence of a prior prosecution in Wisconsin in this manner, we expect that one day that will change.  If it does, don’t hesitate to contact us for help.

We’re available 24/7/365 at (414) 270-0202.