Chapter 940

940.10 Note Judicial Council Note, 1988: Homicide by negligent operation of vehicle is analogous to prior s. 940.08. The mental element is criminal negligence as defined in s. 939.25. [Bill 191-S]

940.10 Annotation A motorist was properly convicted under this section for running a red light at 50 m.p.h., even though the speed limit was 55 m.p.h. State v. Cooper, 117 Wis. 2d 30, 344 N.W.2d 194 (Ct. App. 1983).

940.10 Annotation The definition of criminal negligence as applied to homicide by negligent operation of a vehicle is not unconstitutionally vague. State v. Barman, 183 Wis. 2d 180, 515 N.W.2d 493 (Ct. App. 1994).

940.10 Annotation A corporation may be subject to criminal liability under this section. State v. Richard Knutson, Inc., 196 Wis. 2d 86, 537 N.W.2d 420 (Ct. App. 1995), 93-1898. See also State v. Steenberg Homes, Inc., 223 Wis. 2d 511, 589 N.W.2d 668 (Ct. App. 1998), 98-0104.

940.10 Annotation It is not a requirement for finding criminal negligence that the actor be specifically warned that the actor’s conduct may result in harm. State v. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999), 98-2239.

940.10 Annotation The common law “year-and-a-day rule” that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.

940.11 940.11 Mutilating or hiding a corpse.

940.11(1) (1) Whoever mutilates, disfigures or dismembers a corpse, with intent to conceal a crime or avoid apprehension, prosecution or conviction for a crime, is guilty of a Class F felony.

940.11(2) (2) Whoever hides or buries a corpse, with intent to conceal a crime or avoid apprehension, prosecution, or conviction for a crime or notwithstanding s. 946.90 (2) or (3), 946.91 (2), 946.92, or 946.93 (2) or (3) with intent to collect benefits under the assistance program for families with dependent children administered under ss. 49.141 to 49.161, the Medical Assistance program administered under subch. IV of ch. 49, or the food stamp program, as defined in s. 49.79 (1) (c), is guilty of a Class F felony.

940.11(3) (3) A person may not be subject to prosecution under both this section and s. 946.47 or under both this section and s. 948.23 (2) for his or her acts regarding the same corpse.

940.11 History History: 1991 a. 205; 2001 a. 109; 2011 a. 268; 2013 a. 226; 2015 a. 147.

940.11 Annotation Evidence that the defendant dragged a corpse behind a locked gate into a restricted, secluded wildlife area, then rolled the corpse into water at the bottom of a ditch was sufficient for a jury to conclude that the defendant hid a corpse in violation of this section. State v. Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142, 99-2943.

940.12 940.12 Assisting suicide. Whoever with intent that another take his or her own life assists such person to commit suicide is guilty of a Class H felony.

940.12 History History: 1977 c. 173; 2001 a. 109.

940.13 940.13 Abortion exception. No fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus, and s. 939.05, 939.30 or 939.31 does not apply to a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus.

940.13 History History: 1985 a. 56.

940.15 940.15 Abortion.

940.15(1) (1) In this section, “viability” means that stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case before him or her, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support.

940.15(2) (2) Whoever intentionally performs an abortion after the fetus or unborn child reaches viability, as determined by reasonable medical judgment of the woman’s attending physician, is guilty of a Class I felony.

940.15(3) (3) Subsection (2) does not apply if the abortion is necessary to preserve the life or health of the woman, as determined by reasonable medical judgment of the woman’s attending physician.

940.15(4) (4) Any abortion performed under sub. (3) after viability of the fetus or unborn child, as determined by reasonable medical judgment of the woman’s attending physician, shall be performed in a hospital on an inpatient basis.

940.15(5) (5) Whoever intentionally performs an abortion and who is not a physician is guilty of a Class I felony.

940.15(6) (6) Any physician who intentionally performs an abortion under sub. (3) shall use that method of abortion which, of those he or she knows to be available, is in his or her medical judgment most likely to preserve the life and health of the fetus or unborn child. Nothing in this subsection requires a physician performing an abortion to employ a method of abortion which, in his or her medical judgment based on the particular facts of the case before him or her, would increase the risk to the woman. Any physician violating this subsection is guilty of a Class I felony.

940.15(7) (7) Subsections (2) to (6) and s. 939.05, 939.30 or 939.31 do not apply to a woman who obtains an abortion that is in violation of this section or otherwise violates this section with respect to her unborn child or fetus.

940.15 History History: 1985 a. 56; 2001 a. 109.

940.15 Annotation The constitution does not confer a right to abortion. Therefore, a rational-basis review is the appropriate standard for a constitutional challenge to abortion laws. A law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity. It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).

940.16 940.16 Partial-birth abortion.

940.16(1) (1) In this section:

940.16(1)(a) (a) “Child” means a human being from the time of fertilization until it is completely delivered from a pregnant woman.

940.16(1)(b) (b) “Partial-birth abortion” means an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes the delivery of the child.

940.16(2) (2) Except as provided in sub. (3), whoever intentionally performs a partial-birth abortion is guilty of a Class A felony.

940.16(3) (3) Subsection (2) does not apply if the partial-birth abortion is necessary to save the life of a woman whose life is endangered by a physical disorder, physical illness or physical injury, including a life-endangering physical disorder, physical illness or physical injury caused by or arising from the pregnancy itself, and if no other medical procedure would suffice for that purpose.

940.16 History History: 1997 a. 219.

940.16 Annotation A Nebraska statute that provides that no partial birth abortion can be performed unless it is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury is unconstitutional. Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000). But see Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).

940.16 Annotation The constitution does not confer a right to abortion. Therefore, a rational-basis review is the appropriate standard for a constitutional challenge to abortion laws. A law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity. It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).

940.16 Annotation Enforcement of this section is enjoined under Carhart, 530 U.S. 914 (2000). Hope Clinic v. Ryan, 249 F.3d 603 (2001). But see Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).

subch. II of ch. 940 SUBCHAPTER II

BODILY SECURITY

940.19 940.19 Battery; substantial battery; aggravated battery.

940.19(1) (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.

940.19(2) (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.

940.19(4) (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.

940.19(5) (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.

940.19(6) (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.

940.19 History History: 1977 c. 173; 1979 c. 111, 113; 1987 a. 399; 1993 a. 441, 483; 2001 a. 109; 2021 a. 76.

940.19 Annotation Under the “elements only” test, offenses under subsections that require proof of nonconsent are not lesser included offenses of offenses under subsections for which proof of nonconsent is not required. State v. Richards, 123 Wis. 2d 1, 365 N.W.2d 7 (1985).

940.19 Annotation Discussing “physical disability.” State v. Crowley, 143 Wis. 2d 324, 422 N.W.2d 847 (1988).

940.19 Annotation First-degree reckless injury, s. 940.23 (1), is not a lesser included offense of aggravated battery. State v. Eastman, 185 Wis. 2d 405, 518 N.W.2d 257 (Ct. App. 1994).

940.19 Annotation The act of throwing urine that strikes another and causes pain constitutes a battery. State v. Higgs, 230 Wis. 2d 1, 601 N.W.2d 653 (Ct. App. 1999), 98-1811.

940.19 Annotation Section 941.20 (1), first-degree recklessly endangering safety, is not a lesser included offense of sub. (5), aggravated battery. State v. Dibble, 2002 WI App 219, 257 Wis. 2d. 274, 650 N.W.2d 908, 02-0538.

940.195 940.195 Battery to an unborn child; substantial battery to an unborn child; aggravated battery to an unborn child.

940.195(1) (1) Whoever causes bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class A misdemeanor.

940.195(2) (2) Whoever causes substantial bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class I felony.

940.195(4) (4) Whoever causes great bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class H felony.

940.195(5) (5) Whoever causes great bodily harm to an unborn child by an act done with intent to cause great bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class E felony.

940.195(6) (6) Whoever intentionally causes bodily harm to an unborn child by conduct that creates a substantial risk of great bodily harm is guilty of a Class H felony.

940.195 History History: 1997 a. 295; 2001 a. 109.

940.198 940.198 Physical abuse of an elder person.

940.198(1) (1) Definitions. In this section:

940.198(1)(a) (a) “Elder person” means any individual who is 60 years of age or older.

940.198(1)(b) (b) “Recklessly” means conduct that creates a situation of unreasonable risk of harm to and demonstrates a conscious disregard for the safety of the elder person.

940.198(2) (2) Intentional causation of bodily harm.

940.198(2)(a) (a) Whoever intentionally causes great bodily harm to an elder person is guilty of a Class C felony.

940.198(2)(b) (b) Whoever intentionally causes bodily harm to an elder person is guilty of a Class H felony.

940.198(2)(c) (c) Whoever intentionally causes bodily harm to an elder person under circumstances or conditions that are likely to produce great bodily harm is guilty of a Class F felony.

940.198(3) (3) Reckless causation of bodily harm.

940.198(3)(a) (a) Whoever recklessly causes great bodily harm to an elder person is guilty of a Class E felony.

940.198(3)(b) (b) Whoever recklessly causes bodily harm to an elder person is guilty of a Class I felony.

940.198(3)(c) (c) Whoever recklessly causes bodily harm to an elder person under circumstances or conditions that are likely to produce great bodily harm is guilty of a Class H felony.

940.198(4) (4) Knowledge of age not required. This section applies irrespective of whether the defendant had actual knowledge of the victim’s age. A mistake regarding the victim’s age is not a defense to a prosecution under this section.

940.198 History History: 2021 a. 76.

940.20 940.20 Battery: special circumstances.

940.20(1) (1) Battery by prisoners. Any prisoner confined to a state prison or other state, county, or municipal detention facility who intentionally causes bodily harm or a soft tissue injury, as defined in s. 946.41 (2) (c), to an officer, employee, visitor, or another inmate of such prison or institution, without his or her consent, is guilty of a Class H felony.

940.20(1g) (1g) Battery by certain detained or committed persons. Any person who is placed in a facility under s. 980.04 or 980.065 and who intentionally causes bodily harm to an officer, employee, agent, visitor, or other resident of the facility, without his or her consent, is guilty of a Class H felony.

940.20(1m) (1m) Battery by persons subject to certain injunctions.

940.20(1m)(a) (a) Any person who is subject to an injunction under s. 813.12 or a tribal injunction filed under s. 813.128 (3g) and who intentionally causes bodily harm to the petitioner who sought the injunction by an act done without the consent of the petitioner is guilty of a Class I felony.

940.20(1m)(b) (b) Any person who is subject to an injunction under s. 813.125 and who intentionally causes bodily harm to the petitioner who sought the injunction by an act done without the consent of the petitioner is guilty of a Class I felony.

940.20(2) (2) Battery to fire fighters and commission wardens. Whoever intentionally causes bodily harm to a fire fighter, as defined in s. 102.475 (8) (b), or to a commission warden, acting in an official capacity and the person knows or has reason to know that the victim is a fire fighter or commission warden, by an act done without the consent of the person so injured, is guilty of a Class H felony.

940.20(2m) (2m) Battery to probation, extended supervision and parole agents, community supervision agents, and aftercare agents.

940.20(2m)(a) (a) In this subsection:

940.20(2m)(a)1. 1. “Aftercare agent” means any person authorized by the department of corrections to exercise control over a juvenile on aftercare or authorized by a federally recognized American Indian tribe or band to exercise control over a juvenile on aftercare or a comparable program that is authorized by the tribe or band.

940.20(2m)(a)1m. 1m. “Community supervision agent” means any person authorized by the department of corrections to exercise control over a juvenile on community supervision or authorized by a federally recognized American Indian tribe or band to exercise control over a juvenile on community supervision or a comparable program that is authorized by the tribe or band.

940.20(2m)(a)1o. 1o. “Exercise control” includes exercising control either directly or through a subordinate and includes transporting the individual.

940.20(2m)(a)1p. 1p. “Family member” means a spouse, child, stepchild, foster child, parent, sibling, or grandchild.

940.20(2m)(a)2. 2. “Probation, extended supervision, and parole agent” means any person authorized by the department of corrections to exercise control over a probationer, parolee, or person on extended supervision or authorized by a federally recognized American Indian tribe or band to exercise control over a probationer, parolee, or person on extended supervision or a comparable program that is authorized by the tribe or band.

940.20(2m)(b) (b) Whoever intentionally causes bodily harm or threatens to cause bodily harm to the person or family member of a probation, extended supervision, and parole agent, a community supervision agent, or an aftercare agent under all of the following circumstances is guilty of a Class H felony:

940.20(2m)(b)1. 1. At the time of the act or threat, the actor knows or has reason to know that the victim is a probation, extended supervision, and parole agent, a community supervision agent, or an aftercare agent, or a member of the agent’s family.

940.20(2m)(b)2. 2. The act or threat is in response to any action taken by the agent acting in an official capacity.

940.20(2m)(b)3. 3. The act or threat is done without the consent of the person harmed or threatened.