Chapter 940

940.203 Annotation Only a “true threat” is punishable under this section. A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. Jury instructions must contain a clear definition of a true threat. State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, 99-1924. But see Counterman v. Colorado, 600 U.S. ___, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023).

940.204 940.204 Battery or threat to health care providers and staff.

940.204(1) (1) In this section:

940.204(1)(a) (a) “Family member” means a parent, spouse, sibling, child, stepchild, or foster child.

940.204(1)(b) (b) “Health care facility” means any of the following:

940.204(1)(b)1. 1. A hospital, as defined in s. 50.33 (2).

940.204(1)(b)2. 2. A clinic, which is a location with the primary purpose of providing outpatient diagnosis, treatment, or management of health conditions.

940.204(1)(b)3. 3. A pharmacy that is licensed under s. 450.06.

940.204(1)(b)4. 4. An adult day care center, as defined in s. 49.45 (47) (a).

940.204(1)(b)5. 5. An adult family home, as defined in s. 50.01 (1).

940.204(1)(b)6. 6. A community-based residential facility, as defined in s. 50.01 (1g).

940.204(1)(b)7. 7. A residential care apartment complex, as defined in s. 50.01 (6d).

940.204(1)(b)8. 8. A nursing home, as defined in s. 50.01 (3).

940.204(1)(b)9. 9. A mental health or substance use disorder facility, which is a location that provides diagnosis, treatment, or management of mental health or substance use disorders.

940.204(1)(b)10. 10. An ambulatory surgical center, as defined in 42 CFR 416.2.

940.204(1)(c) (c) “Health care provider” means any of the following:

940.204(1)(c)1. 1. A health care provider, as defined in s. 146.81 (1) (a) to (hp), (q), (r), or (s).

940.204(1)(c)2. 2. A radiographer or limited X-ray machine operator licensed or permitted under ch. 462.

940.204(1)(c)3. 3. A driver of an ambulance, as defined in s. 256.01 (1t).

940.204(2) (2) Whoever intentionally causes bodily harm or threatens to cause bodily harm to a person who works in a health care facility or to a family member of a person who works in a health care facility under all of the following circumstances is guilty of a Class H felony:

940.204(2)(a) (a) At the time of the act or threat, the actor knows or should have known that the victim works or formerly worked in a health care facility or is a family member of the person who works or formerly worked in a health care facility.

940.204(2)(b) (b) The act or threat is in response to an action occurring at the health care facility or an action by an official, employee, or agent of the health care facility acting in his or her official capacity.

940.204(2)(c) (c) There is no consent by the person harmed or threatened.

940.204(3) (3) Whoever intentionally causes bodily harm or threatens to cause bodily harm to a health care provider or to a family member of a health care provider under all of the following circumstances is guilty of a Class H felony:

940.204(3)(a) (a) At the time of the act or threat, the actor knows or should have known that the victim is a health care provider or is a family member of a health care provider.

940.204(3)(b) (b) The act or threat is in response to an action by the health care provider acting in his or her capacity as a health care provider.

940.204(3)(c) (c) There is no consent by the person harmed or threatened.

940.204(4) (4) The department of justice shall post on its website model language that health care facilities may post at their entrances alerting persons to the penalties under this section.

940.204 History History: 2021 a. 209; s. 35.17 correction in (1) (b) 4., (c) 1., (4).

940.205 940.205 Battery or threat to department of revenue employee.

940.205(1) (1) In this section, “family member” means a parent, spouse, sibling, child, stepchild, or foster child.

940.205(2) (2) Whoever intentionally causes bodily harm or threatens to cause bodily harm to the person or family member of any department of revenue official, employee or agent under all of the following circumstances is guilty of a Class H felony:

940.205(2)(a) (a) At the time of the act or threat, the actor knows or should have known that the victim is a department of revenue official, employee or agent or a member of his or her family.

940.205(2)(b) (b) The official, employee or agent is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity.

940.205(2)(c) (c) There is no consent by the person harmed or threatened.

940.205 History History: 1985 a. 29; 1993 a. 446; 2001 a. 109; 2009 a. 28.

940.207 940.207 Battery or threat to department of safety and professional services or department of workforce development employee.

940.207(1) (1) In this section, “family member” means a parent, spouse, sibling, child, stepchild, or foster child.

940.207(2) (2) Whoever intentionally causes bodily harm or threatens to cause bodily harm to the person or family member of any department of safety and professional services or department of workforce development official, employee or agent under all of the following circumstances is guilty of a Class H felony:

940.207(2)(a) (a) At the time of the act or threat, the actor knows or should have known that the victim is a department of safety and professional services or department of workforce development official, employee or agent or a member of his or her family.

940.207(2)(b) (b) The official, employee or agent is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity.

940.207(2)(c) (c) There is no consent by the person harmed or threatened.

940.207 History History: 1993 a. 86, 446; 1995 a. 27 ss. 7227 to 7229, 9116 (5), 9130 (4); 1997 a. 3; 2001 a. 109; 2009 a. 28; 2011 a. 32.

940.208 940.208 Battery to certain employees of counties, cities, villages, or towns. Whoever intentionally causes bodily harm to an employee of a county, city, village, or town under all of the following circumstances is guilty of a Class I felony:

940.208(1) (1) At the time of the act, the actor knows or should know that the victim is an employee of a county, city, village, or town.

940.208(2) (2) The victim is enforcing, or conducting an inspection for the purpose of enforcing, a state, county, city, village, or town zoning ordinance, building code, or other construction law, rule, standard, or plan at the time of the act or the act is in response to any such enforcement or inspection activity.

940.208(2p) (2p) The enforcement or inspection complies with any law, ordinance, or rule, including any applicable notice requirement.

940.208(3) (3) There is no consent by the victim.

940.208 History History: 2007 a. 193.

940.21 940.21 Mayhem. Whoever, with intent to disable or disfigure another, cuts or mutilates the tongue, eye, ear, nose, lip, limb or other bodily member of another is guilty of a Class C felony.

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

940.21 Annotation The forehead qualifies as an “other bodily member” under this section because “other bodily member” encompasses all bodily parts. State v. Quintana, 2008 WI 33, 308 Wis. 2d 615, 748 N.W.2d 447, 06-0499.

940.21 Annotation Failure to instruct a jury that great bodily harm is an essential element of mayhem was reversible error. Cole v. Young, 817 F. 2d 412 (1987).

940.22 940.22 Sexual exploitation by therapist; duty to report.

940.22(1) (1) Definitions. In this section:

940.22(1)(a) (a) “Department” means the department of safety and professional services.

940.22(1)(b) (b) “Physician” has the meaning designated in s. 448.01 (5).

940.22(1)(c) (c) “Psychologist” means a person who practices psychology, as described in s. 455.01 (5).

940.22(1)(d) (d) “Psychotherapy” has the meaning designated in s. 455.01 (6).

940.22(1)(e) (e) “Record” means any document relating to the investigation, assessment and disposition of a report under this section.

940.22(1)(f) (f) “Reporter” means a therapist who reports suspected sexual contact between his or her patient or client and another therapist.

940.22(1)(g) (g) “Sexual contact” has the meaning designated in s. 940.225 (5) (b).

940.22(1)(h) (h) “Subject” means the therapist named in a report or record as being suspected of having sexual contact with a patient or client or who has been determined to have engaged in sexual contact with a patient or client.

940.22(1)(i) (i) “Therapist” means a physician, psychologist, social worker, marriage and family therapist, professional counselor, nurse, chemical dependency counselor, member of the clergy or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.

940.22(2) (2) Sexual contact prohibited. Any person who is or who holds himself or herself out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist-patient or therapist-client relationship, regardless of whether it occurs during any treatment, consultation, interview or examination, is guilty of a Class F felony. Consent is not an issue in an action under this subsection.

940.22(3) (3) Reports of sexual contact.

940.22(3)(a) (a) If a therapist has reasonable cause to suspect that a patient or client he or she has seen in the course of professional duties is a victim of sexual contact by another therapist or a person who holds himself or herself out to be a therapist in violation of sub. (2), as soon thereafter as practicable the therapist shall ask the patient or client if he or she wants the therapist to make a report under this subsection. The therapist shall explain that the report need not identify the patient or client as the victim. If the patient or client wants the therapist to make the report, the patient or client shall provide the therapist with a written consent to the report and shall specify whether the patient’s or client’s identity will be included in the report.

940.22(3)(b) (b) Within 30 days after a patient or client consents under par. (a) to a report, the therapist shall report the suspicion to:

940.22(3)(b)1. 1. The department, if the reporter believes the subject of the report is licensed by the state. The department shall promptly communicate the information to the appropriate examining board or affiliated credentialing board.

940.22(3)(b)2. 2. The district attorney for the county in which the sexual contact is likely, in the opinion of the reporter, to have occurred, if subd. 1. is not applicable.

940.22(3)(c) (c) A report under this subsection shall contain only information that is necessary to identify the reporter and subject and to express the suspicion that sexual contact has occurred in violation of sub. (2). The report shall not contain information as to the identity of the alleged victim of sexual contact unless the patient or client requests under par. (a) that this information be included.

940.22(3)(d) (d) Whoever intentionally violates this subsection by failing to report as required under pars. (a) to (c) is guilty of a Class A misdemeanor.

940.22(4) (4) Confidentiality of reports and records.

940.22(4)(a) (a) All reports and records made from reports under sub. (3) and maintained by the department, examining boards, affiliated credentialing boards, district attorneys and other persons, officials and institutions shall be confidential and are exempt from disclosure under s. 19.35 (1). Information regarding the identity of a victim or alleged victim of sexual contact by a therapist shall not be disclosed by a reporter or by persons who have received or have access to a report or record unless disclosure is consented to in writing by the victim or alleged victim. The report of information under sub. (3) and the disclosure of a report or record under this subsection does not violate any person’s responsibility for maintaining the confidentiality of patient health care records, as defined in s. 146.81 (4) and as required under s. 146.82. Reports and records may be disclosed only to appropriate staff of a district attorney or a law enforcement agency within this state for purposes of investigation or prosecution.

940.22(4)(b) (b)

940.22(4)(b)1. 1. The department, a district attorney, an examining board or an affiliated credentialing board within this state may exchange information from a report or record on the same subject.

940.22(4)(b)2. 2. If the department receives 2 or more reports under sub. (3) regarding the same subject, the department shall communicate information from the reports to the appropriate district attorneys and may inform the applicable reporters that another report has been received regarding the same subject.

940.22(4)(b)3. 3. If a district attorney receives 2 or more reports under sub. (3) regarding the same subject, the district attorney may inform the applicable reporters that another report has been received regarding the same subject.

940.22(4)(b)4. 4. After reporters receive the information under subd. 2. or 3., they may inform the applicable patients or clients that another report was received regarding the same subject.

940.22(4)(c) (c) A person to whom a report or record is disclosed under this subsection may not further disclose it, except to the persons and for the purposes specified in this section.

940.22(4)(d) (d) Whoever intentionally violates this subsection, or permits or encourages the unauthorized dissemination or use of information contained in reports and records made under this section, is guilty of a Class A misdemeanor.

940.22(5) (5) Immunity from liability. Any person or institution participating in good faith in the making of a report or record under this section is immune from any civil or criminal liability that results by reason of the action. For the purpose of any civil or criminal action or proceeding, any person reporting under this section is presumed to be acting in good faith. The immunity provided under this subsection does not apply to liability resulting from sexual contact by a therapist with a patient or client.

940.22 History History: 1983 a. 434; 1985 a. 275; 1987 a. 352, 380; 1991 a. 160; 1993 a. 107; 1995 a. 300; 2001 a. 109; 2011 a. 32.

940.22 Annotation This section applies to persons engaged in professional therapist-patient relationships. A teacher who conducts informal counseling is not engaged as a professional therapist. State v. Ambrose, 196 Wis. 2d 768, 540 N.W.2d 208 (Ct. App. 1995), 94-3391.

940.22 Annotation Even though the alleged victim feigned her role as a patient at the last counseling session she attended, attending as a police agent for the purpose of recording the session to obtain evidence, any acts that occurred during the session were during an ongoing therapist-patient relationship as those terms are used in this section. State v. DeLain, 2005 WI 52, 280 Wis. 2d 51, 695 N.W.2d 484, 03-1253.

940.22 Annotation The totality of the circumstances determine the existence of an ongoing therapist-patient relationship under sub. (2). A defendant’s state of mind, a secret unilateral action of a patient, and explicit remarks of one party to the other regarding the relationship may be factors, but are not necessarily dispositive. Other factors may be: 1) how much time has gone by since the last therapy session; 2) how close together the therapy sessions had been to each other; 3) the age of the patient; 4) the particular vulnerabilities experienced by the patient as a result of mental health issues; and 5) the ethical obligations of the therapist’s profession. State v. DeLain, 2005 WI 52, 280 Wis. 2d 51, 695 N.W.2d 484, 03-1253.

940.22 Annotation It was constitutional error to give a pattern jury instruction that never directed the jury to make an independent, beyond-a-reasonable-doubt decision as to whether the defendant clergy member performed or purported to perform psychotherapy. State v. Draughon, 2005 WI App 162, 285 Wis. 2d 633, 702 N.W.2d 412, 04-1637.

940.225 940.225 Sexual assault.

940.225(1) (1) First degree sexual assault. Whoever does any of the following is guilty of a Class B felony: