948.01(1d)(1d) “Exhibit,” with respect to a recording of an image that is not viewable in its recorded form, means to convert the recording of the image into a form in which the image may be viewed. 948.01(1t)(1t) “Lewd exhibition of intimate parts” means the display of less than fully and opaquely covered intimate parts of a person who is posed as a sex object or in a way that places an unnatural or unusual focus on the intimate parts. 948.01(2)(2) “Mental harm” means substantial harm to a child’s psychological or intellectual functioning which may be evidenced by a substantial degree of certain characteristics of the child including, but not limited to, anxiety, depression, withdrawal or outward aggressive behavior. “Mental harm” may be demonstrated by a substantial and observable change in behavior, emotional response or cognition that is not within the normal range for the child’s age and stage of development. 948.01(3)(3) “Person responsible for the child’s welfare” includes the child’s parent; stepparent; guardian; foster parent; an employee of a public or private residential home, institution, or agency; other person legally responsible for the child’s welfare in a residential setting; or a person employed by one legally responsible for the child’s welfare to exercise temporary control or care for the child. 948.01(3r)(3r) “Recording” includes the creation of a reproduction of an image or a sound or the storage of data representing an image or a sound. 948.01(4)(4) “Sadomasochistic abuse” means the infliction of force, pain or violence upon a person for the purpose of sexual arousal or gratification. 948.01(5)(5) “Sexual contact” means any of the following: 948.01(5)(a)(a) 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 sexually humiliating the complainant or sexually arousing or gratifying the defendant: 948.01(5)(a)1.1. 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. 948.01(5)(a)2.2. 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. 948.01(5)(a)3.3. 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. 948.01(5)(b)(b) 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. 948.01(5)(c)(c) 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. 948.01(6)(6) “Sexual intercourse” means vulvar penetration 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. 948.01(7)(7) “Sexually explicit conduct” means actual or simulated: 948.01(7)(a)(a) Sexual intercourse, meaning vulvar penetration 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 a person or upon the person’s instruction. The emission of semen is not required; 948.01(7)(d)(d) Sexual sadism or sexual masochistic abuse including, but not limited to, flagellation, torture or bondage; or 948.01 AnnotationWhen a defendant allows sexual contact initiated by a child, the defendant is guilty of intentional touching, as defined in sub. (5). State v. Traylor, 170 Wis. 2d 393, 489 N.W.2d 626 (Ct. App. 1992). 948.01 AnnotationThe definition of “parent” in sub. (3) is all-inclusive; a defendant whose paternity was admitted but had never been adjudged was a “parent.” State v. Evans, 171 Wis. 2d 471, 492 N.W.2d 141 (1992). 948.01 AnnotationA live-in boyfriend can be a person responsible for the welfare of a child if he was used by the child’s legal guardian as a caretaker for the child. State v. Sostre, 198 Wis. 2d 409, 542 N.W.2d 774 (1996), 94-0778. 948.01 AnnotationThe phrase “by the defendant or upon the defendant’s instruction” in sub. (6) modifies the entire list of acts and establishes that for intercourse to occur the defendant either had to perform one of the actions on the victim or instruct the victim to perform one of the actions on himself or herself. State v. Olson, 2000 WI App 158, 238 Wis. 2d 74, 616 N.W.2d 144, 99-2851. 948.01 AnnotationA person under 18 years of age employed by the person’s parent to care for a child for whom the parent is legally responsible can be a person responsible for the welfare of the child under sub. (3). State v. Hughes, 2005 WI App 155, 285 Wis. 2d 388, 702 N.W.2d 87, 04-2122. 948.015948.015 Other offenses against children. In addition to the offenses under this chapter, offenses against children include, but are not limited to, the following: 948.015(3)(3) Section 125.07, relating to furnishing alcohol beverages to underage persons. 948.015(5)(5) Section 254.12, relating to applying lead-bearing paints or selling or transferring a fixture or other object containing a lead-bearing paint. 948.015(6)(6) Sections 961.01 (6) and (9) and 961.49, relating to delivering and distributing controlled substances or controlled substance analogs to children. 948.015(8)(8) Section 961.573 (3) (b) 2., relating to the use or possession of methamphetamine-related drug paraphernalia in the presence of a child who is 14 years of age or younger. 948.02948.02 Sexual assault of a child. 948.02(1)(am)(am) Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years and causes great bodily harm to the person is guilty of a Class A felony. 948.02(1)(b)(b) Whoever has sexual intercourse with a person who has not attained the age of 12 years is guilty of a Class B felony. 948.02(1)(c)(c) Whoever has sexual intercourse with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony. 948.02(1)(d)(d) Whoever has sexual contact with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony if the actor is at least 18 years of age when the sexual contact occurs. 948.02(1)(e)(e) Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony. 948.02(2)(2) Second degree sexual assault. Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony. This subsection does not apply if s. 948.093 applies. 948.02(3)(3) Failure to act. A person responsible for the welfare of a child who has not attained the age of 16 years is guilty of a Class F felony if that person has knowledge that another person intends to have, is having or has had sexual intercourse or sexual contact with the child, is physically and emotionally capable of taking action which will prevent the intercourse or contact from taking place or being repeated, fails to take that action and the failure to act exposes the child to an unreasonable risk that intercourse or contact may occur between the child and the other person or facilitates the intercourse or contact that does occur between the child and the other person. 948.02(4)(4) 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. 948.02(5)(5) Death of victim. This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse. 948.02 AnnotationDiscussing limits relating to expert testimony regarding child sex abuse victims. State v. Hernandez, 192 Wis. 2d 251, 531 N.W.2d 348 (Ct. App. 1995). 948.02 AnnotationThe criminalization, under sub. (2), of consensual sexual relations with a child does not violate a defendant’s constitutionally protected privacy rights. State v. Fisher, 211 Wis. 2d 665, 565 N.W.2d 565 (Ct. App. 1997), 96-1764. 948.02 AnnotationSecond degree sexual assault under sub. (2) is a lesser included offense of first degree sexual assault under sub. (1). State v. Moua, 215 Wis. 2d 511, 573 N.W.2d 202 (Ct. App. 1997), 96-3242. 948.02 AnnotationFor a guilty plea to a sexual assault charge to be knowingly made, a defendant need not be informed of the potential of being required to register as a convicted sex offender under s. 301.45 or that failure to register could result in imprisonment, as the commitment is a collateral, not direct, consequence of the plea. State v. Bollig, 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d 199, 98-2196. 948.02 AnnotationExpert evidence of sexual immaturity is relevant to a preadolescent’s affirmative defense that he or she is not capable of having sexual contact with the purpose of becoming sexually aroused or gratified. State v. Stephen T., 2002 WI App 3, 250 Wis. 2d 26, 643 N.W.2d 151, 00-3045. 948.02 AnnotationThat the intended victim was actually an adult was not a bar to bringing the charge of attempted second degree sexual assault of a child. The fictitiousness of the victim is an extraneous factor beyond the defendant’s control within the meaning of the attempt statute. State v. Grimm, 2002 WI App 242, 258 Wis. 2d 166, 653 N.W.2d 284, 01-0138. 948.02 AnnotationSection 939.22 (19) includes female and male breasts as each is “the breast of a human being.” The touching of a boy’s breast constitutes “sexual contact” under sub. (2). State v. Forster, 2003 WI App 29, 260 Wis. 2d 149, 659 N.W.2d 144, 02-0602. 948.02 AnnotationSub. (2), in conjunction with ss. 939.23 and 939.43 (2), precludes a defense predicated on a child’s intentional age misrepresentation. The statutes do not violate an accused’s rights under the 14th amendment to the U.S. Constitution. State v. Jadowski, 2004 WI 68, 272 Wis. 2d 418, 680 N.W.2d 810, 03-1493. 948.02 AnnotationThe consent of a child in a sub. (2) violation is not relevant. Yet if a defendant asserts that the defendant did not consent to the intercourse and that the defendant was raped by the child, the issue of the defendant’s consent becomes paramount. If the defendant was raped, the act of having sexual intercourse with the child does not constitute a crime. State v. Lackershire, 2007 WI 74, 301 Wis. 2d 418, 734 N.W.2d 23, 05-1189. 948.02 Annotation“Sexual intercourse” as used in this section does not include bona fide medical, health care, and hygiene procedures. This construction cures the statute’s silence regarding medically appropriate conduct. Thus the statute is not unconstitutionally overbroad. State v. Lesik, 2010 WI App 12, 322 Wis. 2d 753, 780 N.W.2d 210, 08-3072. 948.02 AnnotationThe elements of the offense under sub. (1) (e) are: 1) that the defendant had sexual contact with the victim; and 2) that the victim was under the age of 13 years at the time of the alleged sexual contact. It is these elements that the jury must unanimously agree upon. The exact location of the assault is not a fact necessary to prove the sexual contact and does not require jury unanimity. State v. Badzinski, 2014 WI 6, 352 Wis. 2d 329, 843 N.W.2d 29, 11-2905. 948.02 AnnotationThe defendant’s convictions for both failure to protect a child from sexual assault contrary to sub. (3) and first-degree sexual assault of a child under 13 as a party to a crime contrary to sub. (1) (e) and s. 939.05 were not multiplicitous. The two convictions were supported by different conduct and were not identical in fact. State v. Steinhardt, 2017 WI 62, 375 Wis. 2d 712, 896 N.W.2d 700, 15-0993. 948.02 AnnotationThe constitutionality of this statute is upheld. Sweeney v. Smith, 9 F. Supp. 2d 1026 (1998). 948.02 AnnotationStatutory Rape in Wisconsin: History, Rationale, and the Need for Reform. Olszewski. 89 MLR 693 (2006).
948.025948.025 Engaging in repeated acts of sexual assault of the same child. 948.025(1)(1) Whoever commits 3 or more violations under s. 948.02 (1) or (2) within a specified period of time involving the same child is guilty of: 948.025(2)(a)(a) If an action under sub. (1) (a) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations of s. 948.02 (1) (am) occurred within the specified period of time but need not agree on which acts constitute the requisite number. 948.025(2)(b)(b) If an action under sub. (1) (b) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations of s. 948.02 (1) (am), (b), or (c) occurred within the specified period of time but need not agree on which acts constitute the requisite number and need not agree on whether a particular violation was a violation of s. 948.02 (1) (am), (b), or (c). 948.025(2)(c)(c) If an action under sub. (1) (c) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations of s. 948.02 (1) (am), (b), (c), or (d) occurred within the specified period of time but need not agree on which acts constitute the requisite number and need not agree on whether a particular violation was a violation of s. 948.02 (1) (am), (b), (c), or (d). 948.025(2)(d)(d) If an action under sub. (1) (d) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations of s. 948.02 (1) occurred within the specified period of time but need not agree on which acts constitute the requisite number. 948.025(2)(e)(e) If an action under sub. (1) (e) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations of s. 948.02 (1) or (2) occurred within the specified period of time but need not agree on which acts constitute the requisite number and need not agree on whether a particular violation was a violation of s. 948.02 (1) or (2). 948.025(3)(3) The state may not charge in the same action a defendant with a violation of this section and with a violation involving the same child under s. 948.02 or 948.10, unless the other violation occurred outside of the time period applicable under sub. (1). This subsection does not prohibit a conviction for an included crime under s. 939.66 when the defendant is charged with a violation of this section. 948.025 AnnotationConvicting the defendant on three counts of first-degree sexual assault of a child and one count of repeated acts of sexual assault of a child when all four charges involved the same child and the same time period violated sub. (3). A court may reverse the conviction on the repeated acts charge under sub. (1) rather than the convictions for specific acts of sexual assault under s. 948.02 (1) when the proscription against multiple charges in sub. (3) is violated even if the repeated acts charge was filed prior to the charges for the specific actions. State v. Cooper, 2003 WI App 227, 267 Wis. 2d 886, 672 N.W.2d 118, 02-2247. 948.025 AnnotationThe state may bring multiple prosecutions under sub. (1) when two or more episodes involving “3 or more violations under s. 948.02 (1) or (2) within a specified period of time involving the same child” are discrete as to time and venue. State v. Nommensen, 2007 WI App 224, 305 Wis. 2d 695, 741 N.W.2d 481, 06-2727. 948.025 AnnotationThe respondent 15 year-old’s assertion, that applying sub. (1) (e) to him violated his due process and equal protection rights, failed. While a juvenile under the age of 16 could be both a victim and an offender under sub. (1) (e), the respondent was not a victim under the facts in this case. Sub. (1) (e) prohibits a person from engaging in sexual contact with another person who has not reached the age of 16. Sexual contact occurs when intentional touching is done “either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant.” The statute provides an objective standard that makes clear that every person who engages in sexual contact with a child under the age of 16 for the purposes described is strictly liable. State v. Colton M., 2015 WI App 94, 366 Wis. 2d 119, 875 N.W.2d 642, 14-2419. 948.025 AnnotationWhen the state alleged that the defendant engaged in repeated sexual assaults of the same child during 2007 and 2008, and during that time period sub. (1) was repealed and recreated, the applicable law was the statute in effect when the last criminal action constituting a continuing offense occurred. Although the defendant should have been charged under the 2007-08 law, the defendant was mistakenly charged under the 2005-06 law. Nevertheless, the defendant was charged with a crime that existed at law. Class C criminal liability attached under the 2005-06 and 2007-08 laws to the same conduct as it pertained to the defendant. The wording difference was immaterial as the elements were the same. The technical charging error did not prejudice the defendant, nor did it affect the circuit court’s subject matter jurisdiction. State v. Scott, 2017 WI App 40, 376 Wis. 2d 430, 899 N.W.2d 728, 16-1411.
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Chs. 939-951, Criminal Code
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