Chapter 940

940.31 Annotation Confinement is the intentional, unlawful, and uncontested restraint by one person of the physical liberty of another. State v. Burroughs, 2002 WI App 18, 250 Wis. 2d 180, 640 N.W.2d 190, 01-0738.

940.31 Annotation Sub. (2) (b) allows for a lesser degree of kidnapping if two additional elements are present: 1) the victim is released prior to the first witness testimony, and 2) there is no permanent physical injury to the victim. Once there is some evidence of the mitigating factor of no permanent injury, the burden is on the state to prove the absence of that factor, and a court accepting a guilty plea to a charged kidnapping offense under sub. (2) (a) should ascertain a factual basis for excluding the lesser-related offense under sub. (2) (b). State v. Ravesteijn, 2006 WI App 250, 297 Wis. 2d 663, 727 N.W.2d 53, 05-1955.

940.315 940.315 Global positioning devices.

940.315(1) (1) Whoever does any of the following is guilty of a Class A misdemeanor:

940.315(1)(a) (a) Places a global positioning device or a device equipped with global positioning technology on a vehicle owned or leased by another person without that person’s consent.

940.315(1)(b) (b) Intentionally obtains information regarding another person’s movement or location generated by a global positioning device or a device equipped with global positioning technology that has been placed without that person’s consent.

940.315(2) (2) This section does not apply to a motor vehicle manufacturer or a person, acting within the scope of his or her employment, who installs an in-vehicle communication or telematics system, to a device installed by or with the permission of the vehicle owner for automobile insurance rating, underwriting, or claims handling purposes, to a law enforcement officer acting in his or her official capacity, to a parent or guardian acting to track the movement or location of his or her minor child or his or her ward, to a lienholder or agent of a lienholder acting to track the movement or location of a motor vehicle in order to repossess the motor vehicle, or to an employer or business owner acting to track the movement or location of a motor vehicle owned, leased, or assigned for use by the employer or business owner.

940.315 History History: 2015 a. 45.

940.32 940.32 Stalking.

940.32(1) (1) In this section:

940.32(1)(a) (a) “Course of conduct” means a series of 2 or more acts carried out over time, however short or long, that show a continuity of purpose, including any of the following:

940.32(1)(a)1. 1. Maintaining a visual or physical proximity to the victim.

940.32(1)(a)2. 2. Approaching or confronting the victim.

940.32(1)(a)3. 3. Appearing at the victim’s workplace or contacting the victim’s employer or coworkers.

940.32(1)(a)4. 4. Appearing at the victim’s home or contacting the victim’s neighbors.

940.32(1)(a)5. 5. Entering property owned, leased, or occupied by the victim.

940.32(1)(a)6. 6. Contacting the victim by telephone, text message, electronic message, electronic mail, or other means of electronic communication or causing the victim’s telephone or electronic device or any other person’s telephone or electronic device to ring or generate notifications repeatedly or continuously, regardless of whether a conversation ensues.

940.32(1)(a)6m. 6m. Photographing, videotaping, audiotaping, or, through any other electronic means, monitoring or recording the activities of the victim. This subdivision applies regardless of where the act occurs.

940.32(1)(a)7. 7. Sending to the victim any physical or electronic material or contacting the victim by any means, including any message, comment, or other content posted on any Internet site or web application.

940.32(1)(a)7m. 7m. Sending to a member of the victim’s family or household, or any current or former employer of the victim, or any current or former coworker of the victim, or any friend of the victim any physical or electronic material or contacting such person by any means, including any message, comment, or other content posted on any Internet site or web application for the purpose of obtaining information about, disseminating information about, or communicating with the victim.

940.32(1)(a)8. 8. Placing an object on or delivering an object to property owned, leased, or occupied by the victim.

940.32(1)(a)9. 9. Delivering an object to a member of the victim’s family or household or an employer, coworker, or friend of the victim or placing an object on, or delivering an object to, property owned, leased, or occupied by such a person with the intent that the object be delivered to the victim.

940.32(1)(a)10. 10. Causing a person to engage in any of the acts described in subds. 1. to 9.

940.32(1)(am) (am) “Domestic abuse” has the meaning given in s. 813.12 (1) (am).

940.32(1)(ap) (ap) “Domestic abuse offense” means an act of domestic abuse that constitutes a crime.

940.32(1)(c) (c) “Labor dispute” includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

940.32(1)(cb) (cb) “Member of a family” means a spouse, parent, child, sibling, or any other person who is related by blood or adoption to another.

940.32(1)(cd) (cd) “Member of a household” means a person who regularly resides in the household of another or who within the previous 6 months regularly resided in the household of another.

940.32(1)(cg) (cg) “Personally identifiable information” has the meaning given in s. 19.62 (5).

940.32(1)(cr) (cr) “Record” has the meaning given in s. 19.32 (2).

940.32(1)(d) (d) “Suffer serious emotional distress” means to feel terrified, intimidated, threatened, harassed, or tormented.

940.32(2) (2) Whoever meets all of the following criteria is guilty of a Class I felony:

940.32(2)(a) (a) The actor intentionally engages in a course of conduct directed at a specific person that would cause a reasonable person under the same circumstances to suffer serious emotional distress or to fear bodily injury to or the death of himself or herself or a member of his or her family or household.

940.32(2)(b) (b) The actor knows or should know that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.

940.32(2)(c) (c) The actor’s acts cause the specific person to suffer serious emotional distress or induce fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.

940.32(2e) (2e) Whoever meets all of the following criteria is guilty of a Class I felony:

940.32(2e)(a) (a) After having been convicted of sexual assault under s. 940.225, 948.02, 948.025, or 948.085 or a domestic abuse offense, the actor engages in any of the acts listed in sub. (1) (a) 1. to 10., if the act is directed at the victim of the sexual assault or the domestic abuse offense.

940.32(2e)(b) (b) The actor knows or should know that the act will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.

940.32(2e)(c) (c) The actor’s act causes the specific person to suffer serious emotional distress or induces fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.

940.32(2m) (2m) Whoever violates sub. (2) is guilty of a Class H felony if any of the following applies:

940.32(2m)(a) (a) The actor has a previous conviction for a violent crime, as defined in s. 939.632 (1) (e) 1., or a previous conviction under this section or s. 947.013 (1r), (1t), (1v), or (1x).

940.32(2m)(b) (b) The actor has a previous conviction for a crime, the victim of that crime is the victim of the present violation of sub. (2), and the present violation occurs within 7 years after the prior conviction.

940.32(2m)(c) (c) The actor intentionally gains access or causes another person to gain access to a record in electronic format that contains personally identifiable information regarding the victim in order to facilitate the violation.

940.32(2m)(d) (d) The person violates s. 968.31 (1) or 968.34 (1) in order to facilitate the violation.

940.32(2m)(e) (e) The victim is under the age of 18 years at the time of the violation.

940.32(3) (3) Whoever violates sub. (2) is guilty of a Class F felony if any of the following applies:

940.32(3)(a) (a) The act results in bodily harm to the victim or a member of the victim’s family or household.

940.32(3)(b) (b) The actor has a previous conviction for a violent crime, as defined in s. 939.632 (1) (e) 1., or a previous conviction under this section or s. 947.013 (1r), (1t), (1v) or (1x), the victim of that crime is the victim of the present violation of sub. (2), and the present violation occurs within 7 years after the prior conviction.

940.32(3)(c) (c) The actor uses a dangerous weapon in carrying out any of the acts listed in sub. (1) (a) 1. to 9.

940.32(3m) (3m) A prosecutor need not show that a victim received or will receive treatment from a mental health professional in order to prove that the victim suffered serious emotional distress under sub. (2) (c) or (2e) (c).

940.32(4) (4) 

940.32(4)(a) (a) This section does not apply to conduct that is or acts that are protected by the person’s right to freedom of speech or to peaceably assemble with others under the state and U.S. constitutions, including, but not limited to, any of the following:

940.32(4)(a)1. 1. Giving publicity to and obtaining or communicating information regarding any subject, whether by advertising, speaking or patrolling any public street or any place where any person or persons may lawfully be.

940.32(4)(a)2. 2. Assembling peaceably.

940.32(4)(a)3. 3. Peaceful picketing or patrolling.

940.32(4)(b) (b) Paragraph (a) does not limit the activities that may be considered to serve a legitimate purpose under this section.

940.32(5) (5) This section does not apply to conduct arising out of or in connection with a labor dispute.

940.32(6) (6) The provisions of this statute are severable. If any provision of this statute is invalid or if any application thereof is invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.

940.32 History History: 1993 a. 96, 496; 2001 a. 109; 2003 a. 222, 327; 2005 a. 277; 2021 a. 28.

940.32 Annotation This section does not violate the right to interstate travel and is not unconstitutionally vague or overbroad. State v. Ruesch, 214 Wis. 2d 548, 571 N.W.2d 898 (Ct. App. 1997), 96-2280.

940.32 Annotation The actor’s “acts” under sub. (2) (c) are not the equivalent of the actor’s “course of conduct” under sub. (2) (a). There must be proof that the actor’s acts caused fear and not that the course of conduct caused fear. State v. Sveum, 220 Wis. 2d 396, 584 N.W.2d 137 (Ct. App. 1998), 97-2185.

940.32 Annotation A “previous conviction for a violent crime” is a substantive element of the Class H felony stalking offense under sub. (2m) (a), not a penalty enhancer. It was not error to allow the introduction of evidence at trial that the defendant had stipulated to having a previous conviction for a violent crime, nor was it error to instruct the jury to make a finding on that matter. State v. Warbelton, 2009 WI 6, 315 Wis. 2d 253, 759 N.W.2d 557, 07-0105.

940.32 Annotation The seven-year time restriction specified in sub. (2m) (b) requires that only the final act charged as part of a course of conduct occur within seven years of the previous conviction, and does not restrict by time the other acts used to establish the underlying course of conduct element of sub. (2). State v. Conner, 2009 WI App 143, 321 Wis. 2d 449, 775 N.W.2d 105, 08-1296.

940.32 Annotation Although the acts in this case spanned apparently fewer than 15 minutes, this section specifically provides that stalking may be a series of two acts over a short time if the acts show a continuity of purpose. State v. Eichorn, 2010 WI App 70, 325 Wis. 2d 241, 783 N.W.2d 902, 09-1864.

940.32 Annotation This section is not overbroad under the 1st amendment. Although a stalker might use language in committing the crime, the core of the statute is the stalker’s intent to engage in conduct that the stalker knows or should know will cause fear in the victim and does cause the victim’s actual distress or fear. The language used by the defendant in stalking his victim was merely evidence of his crime and not prohibited in and of itself. State v. Hemmingway, 2012 WI App 133, 345 Wis. 2d 297, 825 N.W.2d 303, 11-2372.

940.34 940.34 Duty to aid victim or report crime.

940.34(1) (1) 

940.34(1)(a) (a) Whoever violates sub. (2) (a) is guilty of a Class C misdemeanor.

940.34(1)(b) (b) Whoever violates sub. (2) (b) is guilty of a Class C misdemeanor and is subject to discipline under s. 440.26 (6).

940.34(1)(c) (c) Whoever violates sub. (2) (c) is guilty of a Class C misdemeanor.

940.34(2) (2) 

940.34(2)(a) (a) Any person who knows that a crime is being committed and that a victim is exposed to bodily harm shall summon law enforcement officers or other assistance or shall provide assistance to the victim.

940.34(2)(b) (b) Any person licensed as a private detective or granted a private security permit under s. 440.26 who has reasonable grounds to believe that a crime is being committed or has been committed shall notify promptly an appropriate law enforcement agency of the facts which form the basis for this belief.

940.34(2)(c) (c)

940.34(2)(c)1. 1. In this paragraph, “unlicensed private security person” means a private security person, as defined in s. 440.26 (1m), who is exempt from the permit and licensure requirements of s. 440.26.

940.34(2)(c)2. 2. Any unlicensed private security person who has reasonable grounds to believe that a crime is being committed or has been committed shall notify promptly an appropriate law enforcement agency of the facts which form the basis for this belief.

940.34(2)(d) (d) A person need not comply with this subsection if any of the following apply:

940.34(2)(d)1. 1. Compliance would place him or her in danger.

940.34(2)(d)2. 2. Compliance would interfere with duties the person owes to others.

940.34(2)(d)3. 3. In the circumstances described under par. (a), assistance is being summoned or provided by others.

940.34(2)(d)4. 4. In the circumstances described under par. (b) or (c), the crime or alleged crime has been reported to an appropriate law enforcement agency by others.

940.34(2m) (2m) If a person is subject to sub. (2) (b) or (c), the person need not comply with sub. (2) (b) or (c) until after he or she has summoned or provided assistance to a victim.

940.34(3) (3) If a person renders emergency care for a victim, s. 895.48 (1) applies. Any person who provides other reasonable assistance under this section is immune from civil liability for his or her acts or omissions in providing the assistance. This immunity does not apply if the person receives or expects to receive compensation for providing the assistance.

940.34 History History: 1983 a. 198; 1985 a. 152, 332; 1987 a. 14; 1995 a. 461; 2021 a. 238 s. 44.

940.34 Annotation This section is not unconstitutional. For a conviction, it must be proved that an accused believed a crime was being committed and that a victim was exposed to bodily harm. The reporting required does not require the defendant to incriminate himself or herself as the statute contains no mandate that an individual identify himself or herself. Whether a defendant fits within an exception under sub. (2) (d) is a matter of affirmative defense. State v. LaPlante, 186 Wis. 2d 427, 521 N.W.2d 448 (Ct. App. 1994).

940.41 940.41 Definitions. In ss. 940.42 to 940.49:

940.41(1g) (1g) “Law enforcement agency” has the meaning given in s. 165.83 (1) (b).

940.41(1r) (1r) “Malice” or “maliciously” means an intent to vex, annoy or injure in any way another person or to thwart or interfere in any manner with the orderly administration of justice.

940.41(2) (2) “Victim” means any natural person against whom any crime as defined in s. 939.12 or under the laws of the United States is being or has been perpetrated or attempted in this state.