Chapter 940

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.

940.41(3) (3) “Witness” means any natural person who has been or is expected to be summoned to testify; who by reason of having relevant information is subject to call or likely to be called as a witness, whether or not any action or proceeding has as yet been commenced; whose declaration under oath is received as evidence for any purpose; who has provided information concerning any crime to any peace officer or prosecutor; who has provided information concerning a crime to any employee or agent of a law enforcement agency using a crime reporting telephone hotline or other telephone number provided by the law enforcement agency; or who has been served with a subpoena issued under s. 885.01 or under the authority of any court of this state or of the United States.

940.41 History History: 1981 c. 118; 1993 a. 128.

940.42 940.42 Intimidation of witnesses; misdemeanor. Except as provided in s. 940.43, whoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade any witness from attending or giving testimony at any trial, proceeding or inquiry authorized by law, is guilty of a Class A misdemeanor.

940.42 History History: 1981 c. 118.

940.42 Annotation When a mother and child were to testify against the defendant and the defendant sent letters to the mother urging that she and the child not testify, regardless of whether the letters were addressed to the child or the child was aware of the letter’s contents, the defendant attempted to dissuade the child through her mother. As the mother of the minor child had the parental responsibility and practical authority to monitor communications by third parties with the child and to influence whether the child cooperated with the court proceedings, there was sufficient evidence to convict. State v. Moore, 2006 WI App 61, 292 Wis. 2d 101, 713 N.W.2d 131, 04-3227.

940.42 Annotation This section supports charging a person with a separate count for each letter sent, and each other act performed, for the purpose of attempting to dissuade any witness from attending or giving testimony at a court proceeding or trial. State v. Moore, 2006 WI App 61, 292 Wis. 2d 101, 713 N.W.2d 131, 04-3227.

940.43 940.43 Intimidation of witnesses; felony. Whoever violates s. 940.42 under any of the following circumstances is guilty of a Class G felony:

940.43(1) (1) Where the act is accompanied by force or violence or attempted force or violence upon the witness, or the spouse, child, stepchild, foster child, parent, sibling, or grandchild of the witness, or any person sharing a common domicile with the witness.

940.43(2) (2) Where the act is accompanied by injury or damage to the real or personal property of any person covered under sub. (1).

940.43(3) (3) Where the act is accompanied by any express or implied threat of force, violence, injury or damage described in sub. (1) or (2).

940.43(4) (4) Where the act is in furtherance of any conspiracy.

940.43(5) (5) Where the act is committed by any person who has suffered any prior conviction for any violation under s. 943.30, 1979 stats., ss. 940.42 to 940.45, or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation under ss. 940.42 to 940.45.

940.43(6) (6) Where the act is committed by any person for monetary gain or for any other consideration acting on the request of any other person. All parties to the transactions are guilty under this section.

940.43(7) (7) Where the act is committed by a person who is charged with a felony in connection with a trial, proceeding, or inquiry for that felony.

940.43(8) (8) If the proceeding is a criminal trial, where the crime is an act of domestic abuse, as defined in s. 968.075 (1) (a), that constitutes the commission of a crime or a crime that, following a conviction, is subject to the surcharge in s. 973.055.

940.43 History History: 1981 c. 118; 1997 a. 143; 2001 a. 109; 2005 a. 280; 2007 a. 96; 2009 a. 28; 2019 a. 112.

940.43 Annotation Conspiracy to intimidate a witness is included under sub. (4). State v. Seibert, 141 Wis. 2d 753, 416 N.W.2d 900 (Ct. App. 1987).

940.44 940.44 Intimidation of victims; misdemeanor. Except as provided in s. 940.45, whoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade, another person who has been the victim of any crime or who is acting on behalf of the victim from doing any of the following is guilty of a Class A misdemeanor:

940.44(1) (1) Making any report of the victimization to any peace officer or state, local or federal law enforcement or prosecuting agency, or to any judge.

940.44(2) (2) Causing a complaint, indictment, or information to be sought or prosecuted, or assisting in the prosecution thereof.

940.44(3) (3) Arresting or causing or seeking the arrest of any person in connection with the victimization.

940.44 History History: 1981 c. 118; 2015 a. 14.

940.44 Annotation A jury instruction for a violation of this section should specify the underlying crime and that a defendant cannot be found guilty of intimidating a victim of a crime unless the elements of the underlying crime are proved beyond a reasonable doubt. State v. Thomas, 161 Wis. 2d 616, 468 N.W.2d 729 (Ct. App. 1991).

940.44 Annotation Acquittal on the underlying charge does not require acquittal on a charge under this section as the jury may have exercised its right to return a not guilty verdict irrespective of evidence on the underlying charge. State v. Thomas, 161 Wis. 2d 616, 468 N.W.2d 729 (Ct. App. 1991).

940.44 Annotation The disorderly conduct statute, s. 947.01, does not require a victim, but when the disorderly conduct is directed at a person, that person is the victim for the purpose of prosecuting the perpetrator for intimidating a victim under this section. State v. Vinje, 201 Wis. 2d 98, 548 N.W.2d 118 (Ct. App. 1996), 95-1484.

940.44 Annotation In the phrase “causing a complaint ... to be sought and prosecuted and assisting in the prosecution thereof” in sub. (2), “and” is read in the disjunctive. Sub. (2) includes alleged acts of intimidation that occur after a victim has caused a complaint to be sought and applies to all acts of intimidation that attempt to prevent or dissuade a crime victim from providing any one or more of the following forms of assistance to prosecutors: 1) causing a complaint, indictment, or information to be sought; 2) causing a complaint to be prosecuted; or, more generally, 3) assisting in a prosecution. State v. Freer, 2010 WI App 9, 323 Wis. 2d 29, 779 N.W.2d 12, 08-2233.

940.45 940.45 Intimidation of victims; felony. Whoever violates s. 940.44 under any of the following circumstances is guilty of a Class G felony:

940.45(1) (1) Where the act is accompanied by force or violence or attempted force or violence upon the victim, or the spouse, child, stepchild, foster child, parent, sibling, or grandchild of the victim, or any person sharing a common domicile with the victim.

940.45(2) (2) Where the act is accompanied by injury or damage to the real or personal property of any person covered under sub. (1).

940.45(3) (3) Where the act is accompanied by any express or implied threat of force, violence, injury or damage described in sub. (1) or (2).

940.45(4) (4) Where the act is in furtherance of any conspiracy.

940.45(5) (5) Where the act is committed by any person who has suffered any prior conviction for any violation under s. 943.30, 1979 stats., ss. 940.42 to 940.45, or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation under ss. 940.42 to 940.45.

940.45(6) (6) Where the act is committed by any person for monetary gain or for any other consideration acting on the request of any other person. All parties to the transactions are guilty under this section.

940.45(7) (7) Where the underlying crime is an act of domestic abuse, as defined in s. 968.075 (1) (a), that constitutes the commission of a crime or a crime that, following a conviction, is subject to the surcharge in s. 973.055.

940.45 History History: 1981 c. 118; 1997 a. 143; 2001 a. 109; 2007 a. 96; 2009 a. 28; 2019 a. 112.

940.46 940.46 Attempt prosecuted as completed act. Whoever attempts the commission of any act prohibited under ss. 940.42 to 940.45 is guilty of the offense attempted without regard to the success or failure of the attempt. The fact that no person was injured physically or in fact intimidated is not a defense against any prosecution under ss. 940.42 to 940.45.

940.46 History History: 1981 c. 118.

940.47 940.47 Court orders. Any court with jurisdiction over any criminal matter, upon substantial evidence, which may include hearsay or the declaration of the prosecutor, that knowing and malicious prevention or dissuasion of any person who is a victim or who is a witness has occurred or is reasonably likely to occur, may issue orders including but not limited to any of the following:

940.47(1) (1) An order that a defendant not violate ss. 940.42 to 940.45.

940.47(2) (2) An order that a person before the court other than a defendant, including, but not limited to, a subpoenaed witness or other person entering the courtroom of the court, not violate ss. 940.42 to 940.45.