Chapter 940

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:

940.225(1)(a) (a) Has sexual contact or sexual intercourse with another person without consent of that person and causes pregnancy or great bodily harm to that person.

940.225(1)(b) (b) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of use of a dangerous weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a dangerous weapon.

940.225(1)(c) (c) Is aided or abetted by one or more other persons and has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.

940.225(1)(d) (d) Commits a violation under sub. (2) against an individual who is 60 years of age or older. This paragraph 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 paragraph.

940.225(2) (2) Second degree sexual assault. Whoever does any of the following is guilty of a Class C felony:

940.225(2)(a) (a) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.

940.225(2)(b) (b) Has sexual contact or sexual intercourse with another person without consent of that person and causes injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care for the victim.

940.225(2)(c) (c) Has sexual contact or sexual intercourse with a person who suffers from a mental illness or deficiency which renders that person temporarily or permanently incapable of appraising the person’s conduct, and the defendant knows of such condition.

940.225(2)(cm) (cm) Has sexual contact or sexual intercourse with a person who is under the influence of an intoxicant to a degree which renders that person incapable of giving consent if the defendant has actual knowledge that the person is incapable of giving consent and the defendant has the purpose to have sexual contact or sexual intercourse with the person while the person is incapable of giving consent.

940.225(2)(d) (d) Has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.

940.225(2)(f) (f) Is aided or abetted by one or more other persons and has sexual contact or sexual intercourse with another person without the consent of that person.

940.225(2)(g) (g) Is an employee of a facility or program under s. 940.295 (2) (b), (c), (h) or (k) and has sexual contact or sexual intercourse with a person who is a patient or resident of the facility or program.

940.225(2)(h) (h) Has sexual contact or sexual intercourse with an individual who is confined in a correctional institution if the actor is a correctional staff member. This paragraph does not apply if the individual with whom the actor has sexual contact or sexual intercourse is subject to prosecution for the sexual contact or sexual intercourse under this section.

940.225(2)(i) (i) Has sexual contact or sexual intercourse with an individual who is on probation, parole, or extended supervision if the actor is a probation, parole, or extended supervision agent who supervises the individual, either directly or through a subordinate, in his or her capacity as a probation, parole, or extended supervision agent or who has influenced or has attempted to influence another probation, parole, or extended supervision agent’s supervision of the individual. This paragraph does not apply if the individual with whom the actor has sexual contact or sexual intercourse is subject to prosecution for the sexual contact or sexual intercourse under this section.

940.225(2)(j) (j) Is a licensee, employee, or nonclient resident of an entity, as defined in s. 48.685 (1) (b) or 50.065 (1) (c), and has sexual contact or sexual intercourse with a client of the entity.

940.225(2)(k) (k) Is a law enforcement officer and has sexual contact or sexual intercourse with any person who is detained by any law enforcement officer, as provided under s. 968.24, or is in the custody of any law enforcement officer. This paragraph applies whether the custody is lawful or unlawful and whether the detainment or custody is actual or constructive. Consent is not an issue in an action under this paragraph.

940.225(3) (3) Third degree sexual assault.

940.225(3)(a) (a) Whoever has sexual intercourse with a person without the consent of that person is guilty of a Class G felony.

940.225(3)(b) (b) Whoever has sexual contact in the manner described in sub. (5) (b) 2. or 3. with a person without the consent of that person is guilty of a Class G felony.

940.225(3m) (3m) Fourth degree sexual assault. Except as provided in sub. (3), whoever has sexual contact with a person without the consent of that person is guilty of a Class A misdemeanor.

940.225(4) (4) Consent. “Consent”, as used in this section, means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact. Consent is not an issue in alleged violations of sub. (2) (c), (cm), (d), (g), (h), and (i). The following persons are presumed incapable of consent but the presumption may be rebutted by competent evidence, subject to the provisions of s. 972.11 (2):

940.225(4)(b) (b) A person suffering from a mental illness or defect which impairs capacity to appraise personal conduct.

940.225(4)(c) (c) A person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

940.225(5) (5) Definitions. In this section:

940.225(5)(abm) (abm) “Client” means an individual who receives direct care or treatment services from an entity.

940.225(5)(acm) (acm) “Correctional institution” means a jail or correctional facility, as defined in s. 961.01 (12m), a juvenile correctional facility, as defined in s. 938.02 (10p), or a juvenile detention facility, as defined in s. 938.02 (10r).

940.225(5)(ad) (ad) “Correctional staff member” means an individual who works at a correctional institution, including a volunteer.

940.225(5)(ag) (ag) “Inpatient facility” has the meaning designated in s. 51.01 (10).

940.225(5)(ai) (ai) “Intoxicant” means any alcohol beverage, hazardous inhalant, controlled substance, controlled substance analog, or other drug, or any combination thereof.

940.225(5)(aj) (aj) “Law enforcement officer” has the meaning designated in s. 165.85 (2) (c).

940.225(5)(ak) (ak) “Nonclient resident” means an individual who resides, or is expected to reside, at an entity, who is not a client of the entity, and who has, or is expected to have, regular, direct contact with the clients of the entity.

940.225(5)(am) (am) “Patient” means any person who does any of the following:

940.225(5)(am)1. 1. Receives care or treatment from a facility or program under s. 940.295 (2) (b), (c), (h) or (k), from an employee of a facility or program or from a person providing services under contract with a facility or program.

940.225(5)(am)2. 2. Arrives at a facility or program under s. 940.295 (2) (b), (c), (h) or (k) for the purpose of receiving care or treatment from a facility or program under s. 940.295 (2) (b), (c), (h) or (k), from an employee of a facility or program under s. 940.295 (2) (b), (c), (h) or (k), or from a person providing services under contract with a facility or program under s. 940.295 (2) (b), (c), (h) or (k).

940.225(5)(ar) (ar) “Resident” means any person who resides in a facility under s. 940.295 (2) (b), (c), (h) or (k).

940.225(5)(b) (b) “Sexual contact” means any of the following:

940.225(5)(b)1. 1. Any of the following types of intentional touching, whether direct or through clothing, if that intentional touching is either for the purpose of sexually degrading; or for the purpose of sexually humiliating the complainant or sexually arousing or gratifying the defendant or if the touching contains the elements of actual or attempted battery under s. 940.19 (1):

940.225(5)(b)1.a. a. Intentional touching by the defendant or, upon the defendant’s instruction, by another person, by the use of any body part or object, of the complainant’s intimate parts.

940.225(5)(b)1.b. b. Intentional touching by the complainant, by the use of any body part or object, of the defendant’s intimate parts or, if done upon the defendant’s instructions, the intimate parts of another person.

940.225(5)(b)1.c. c. Touching by the complainant of the ejaculate, urine, or feces of any person upon the intentional instructions of the defendant, upon the use or threat of force or violence by the defendant, or upon an intentional act of the defendant.

940.225(5)(b)2. 2. Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant or, upon the defendant’s instruction, by another person upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant.

940.225(5)(b)3. 3. For the purpose of sexually degrading or humiliating the complainant or sexually arousing or gratifying the defendant, intentionally causing the complainant to ejaculate or emit urine or feces on any part of the defendant’s body, whether clothed or unclothed.

940.225(5)(c) (c) “Sexual intercourse” includes the meaning assigned under s. 939.22 (36) as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal opening either by the defendant or upon the defendant’s instruction. The emission of semen is not required.

940.225(5)(d) (d) “State treatment facility” has the meaning designated in s. 51.01 (15).

940.225(6) (6) Marriage not a bar to prosecution. A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant.

940.225(7) (7) Death of victim. This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.

940.225 History History: 1975 c. 184, 421; 1977 c. 173; 1979 c. 24, 25, 175, 221; 1981 c. 89, 308, 309, 310, 311; 1985 a. 134; 1987 a. 245, 332, 352; 1987 a. 403 ss. 235, 236, 256; 1993 a. 445; 1995 a. 69; 1997 a. 220; 2001 a. 109; 2003 a. 51; 2005 a. 273, 344, 388, 435, 436; 2013 a. 83; 2017 a. 174; 2021 a. 76, 188; 2023 a. 61.

940.225 Annotation Legislative Council Note, 1981: Presently, [in sub. (5) (a)] the definition of “sexual intercourse” in the sexual assault statute includes any intrusion of any part of a person’s body or of any object into the genital or anal opening of another person. This proposal clarifies that the intrusion of the body part or object may be caused by the direct act of the offender (defendant) or may occur as a result of an act by the victim which is done in compliance with instructions of the offender (defendant). [Bill 630-S]

940.225 Annotation Failure to resist is not consent under sub. (4). State v. Clark, 87 Wis. 2d 804, 275 N.W.2d 715 (1979).

940.225 Annotation Injury by conduct regardless of life is not a lesser-included crime of first-degree sexual assault. Hagenkord v. State, 94 Wis. 2d 250, 287 N.W.2d 834 (Ct. App. 1979).