Chapter 940

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.

940.47(3) (3) An order that any person described in sub. (1) or (2) maintain a prescribed geographic distance from any specified witness or victim.

940.47(4) (4) An order that any person described in sub. (1) or (2) have no communication with any specified witness or any victim, except through an attorney under such reasonable restrictions as the court may impose.

940.47 History History: 1981 c. 118.

940.48 940.48 Violation of court orders. Whoever violates an order issued under s. 940.47 may be punished as follows:

940.48(1) (1) If applicable, the person may be prosecuted under ss. 940.42 to 940.45.

940.48(2) (2) As a contempt of court under ch. 785. A finding of contempt is not a bar to prosecution under ss. 940.42 to 940.45, but:

940.48(2)(a) (a) Any person who commits a contempt of court is entitled to credit for any punishment imposed therefor against any sentence imposed on conviction under ss. 940.42 to 940.45; and

940.48(2)(b) (b) Any conviction or acquittal for any substantive offense under ss. 940.42 to 940.45 is a bar to subsequent punishment for contempt arising out of the same act.

940.48(3) (3) By the revocation of any form of pretrial release or forfeiture of bail and the issuance of a bench warrant for the defendant’s arrest or remanding the defendant to custody. After hearing and on substantial evidence, the revocation may be made whether the violation of order complained of has been committed by the defendant personally or was caused or encouraged to have been committed by the defendant.

940.48 History History: 1981 c. 118.

940.49 940.49 Pretrial release. Any pretrial release of any defendant whether on bail or under any other form of recognizance shall be deemed to include a condition that the defendant neither do, nor cause to be done, nor permit to be done on his or her behalf, any act proscribed by ss. 940.42 to 940.45 and any willful violation of the condition is subject to punishment as prescribed in s. 940.48 (3) whether or not the defendant was the subject of an order under s. 940.47.

940.49 History History: 1981 c. 118.