Chapter 948

948.14 Note NOTE: The Court of Appeals in State v. Oatman, 2015 WI App 76, concluded that this section is overbroad on its face and invalid in its entirety.

948.14 History History: 2005 a. 432.

948.14 Annotation The structure of s. 942.09, with its separate subdivisions for capturing and possessing a representation, and the legislature’s decision to import the definition of “captures a representation” from s. 942.09, along with legislative history indicating that the purpose of this section is to prohibit sex offenders from photographing, filming, or videotaping minors without parental consent, leads to the conclusion that “stores in any medium data that represents a visual image” as used in the definition of “captures a representation” in s. 942.09 does not include the mere possession of visual images. State v. Chagnon, 2015 WI App 66, 364 Wis. 2d 719, 870 N.W.2d 27, 14-2770.

948.20 948.20 Abandonment of a child. Whoever, with intent to abandon the child, leaves any child in a place where the child may suffer because of neglect is guilty of a Class G felony.

948.20 History History: 1977 c. 173; 1987 a. 332 s. 35; Stats. 1987 s. 948.20; 2001 a. 109.

948.21 948.21 Neglecting a child.

948.21(1) (1) Definitions. In this section:

948.21(1)(a) (a) “Child sex offense” means an offense under s. 948.02, 948.025, 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.10, 948.11, or 948.12.

948.21(1)(b) (b) “Emotional damage” has the meaning given in s. 48.02 (5j).

948.21(1)(c) (c) “Necessary care” means care that is vital to the needs of a child’s physical, emotional, or mental health based on all of the facts and circumstances bearing on the child’s need for care, including the child’s age; the child’s physical, mental, or emotional condition; and any special needs of the child.

948.21(1)(d) (d) “Negligently” means acting, or failing to act, in such a way that a reasonable person would know or should know seriously endangers the physical, mental, or emotional health of a child.

948.21(2) (2) Neglect. Any person who is responsible for a child’s welfare who, through his or her action or failure to take action, for reasons other than poverty, negligently fails to provide any of the following, so as to seriously endanger the physical, mental, or emotional health of the child, is guilty of neglect and may be penalized as provided in sub. (3):

948.21(2)(a) (a) Necessary care.

948.21(2)(b) (b) Necessary food.

948.21(2)(c) (c) Necessary clothing.

948.21(2)(d) (d) Necessary medical care.

948.21(2)(e) (e) Necessary shelter.

948.21(2)(f) (f) Education in compliance with s. 118.15.

948.21(2)(g) (g) The protection from exposure to the distribution or manufacture of controlled substances, as defined in s. 961.01 (4), or controlled substance analogs, as defined in s. 961.01 (4m), or to drug abuse, as defined in s. 46.973 (1) (b).

948.21(3) (3) Penalties. A person who violates sub. (2) is guilty of the following:

948.21(3)(a) (a) A Class D felony if the child suffers death as a consequence.

948.21(3)(b) (b) A Class F felony if any of the following applies:

948.21(3)(b)1. 1. The child suffers great bodily harm as a consequence.

948.21(3)(b)2. 2. The child becomes a victim of a child sex offense as a consequence.

948.21(3)(c) (c) A Class G felony if the child suffers emotional damage as a consequence.

948.21(3)(d) (d) A Class H felony if the child suffers bodily harm as a consequence.

948.21(3)(e) (e) A Class I felony if the natural and probable consequences of the violation would be a harm under par. (a), (b), (c), or (d) although the harm did not actually occur if one of the following applies:

948.21(3)(e)1. 1. The child had not attained the age of 6 years when the violation was committed.

948.21(3)(e)2. 2. The child has a physical, cognitive, or developmental disability that was known or should have been known by the actor.

948.21(3)(f) (f) A Class A misdemeanor if the natural and probable consequences of the violation would be a harm under par. (a), (b), (c), or (d) although the harm did not actually occur.

948.21 History History: 1987 a. 332; 2001 a. 109; 2007 a. 80; 2017 a. 283.

948.215 948.215 Chronic neglect; repeated acts of neglect.

948.215(1) (1) Whoever violates s. 948.21 (2) is guilty of chronic neglect and may be penalized as provided in sub. (2) if one of the following applies:

948.215(1)(a) (a) The person commits 3 or more violations under s. 948.21 (2) within a specified period of time involving the same child.

948.215(1)(b) (b) The person has at least one previous conviction for a violation of s. 948.21 (2) involving the same child as the current violation.

948.215(2) (2) A person who is guilty of chronic neglect under sub. (1) is guilty of the following:

948.215(2)(a) (a) A Class B felony if the child suffers death as a consequence.

948.215(2)(b) (b) A Class D felony if any of the following applies:

948.215(2)(b)1. 1. The child suffers great bodily harm as a consequence.

948.215(2)(b)2. 2. The child becomes a victim of a child sex offense, as defined in s. 948.21 (1) (a), as a consequence.

948.215(2)(c) (c) A Class E felony if the child suffers emotional damage, as defined in s. 948.21 (1) (b), as a consequence.

948.215(2)(d) (d) A Class F felony if the child suffers bodily harm as a consequence.

948.215(2)(e) (e) A Class H felony if the natural and probable consequences of the violation would be a harm under par. (a), (b), (c), or (d) although the harm did not actually occur.

948.215(3) (3) 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. 948.21 (2) involving the same child occurred within the specified period but need not agree on which acts constitute the requisite number or which acts resulted in any requisite consequence.

948.215(4) (4) The state may not charge a person in the same action with a violation under sub. (1) (a) and a violation involving the same child under s. 948.21 (2), unless the violation of s. 948.21 (2) occurred outside of the period applicable under sub. (1) (a).

948.215 History History: 2017 a. 283.

948.22 948.22 Failure to support.

948.22(1) (1) In this section:

948.22(1)(a) (a) “Child support” means an amount which a person is ordered to provide for support of a child by a court of competent jurisdiction in this state or in another state, territory or possession of the United States, or, if not ordered, an amount that a person is legally obligated to provide under s. 49.90.

948.22(1)(b) (b) “Grandchild support” means an amount which a person is legally obligated to provide under s. 49.90 (1) (a) 2. and (11).

948.22(1)(c) (c) “Spousal support” means an amount which a person is ordered to provide for support of a spouse or former spouse by a court of competent jurisdiction in this state or in another state, territory or possession of the United States, or, if not ordered, an amount that a person is legally obligated to provide under s. 49.90.

948.22(2) (2) Any person who intentionally fails for 120 or more consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class I felony. A prosecutor may charge a person with multiple counts for a violation under this subsection if each count covers a period of at least 120 consecutive days and there is no overlap between periods.

948.22(3) (3) Any person who intentionally fails for less than 120 consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class A misdemeanor.

948.22(4) (4) Under this section, the following is prima facie evidence of intentional failure to provide child, grandchild or spousal support:

948.22(4)(a) (a) For a person subject to a court order requiring child, grandchild or spousal support payments, when the person knows or reasonably should have known that he or she is required to pay support under an order, failure to pay the child, grandchild or spousal support payment required under the order.

948.22(4)(b) (b) For a person not subject to a court order requiring child, grandchild or spousal support payments, when the person knows or reasonably should have known that he or she has a dependent, failure to provide support equal to at least the amount established by rule by the department of children and families under s. 49.22 (9) or causing a spouse, grandchild or child to become a dependent person, or continue to be a dependent person, as defined in s. 49.01 (2).

948.22(5) (5) Under this section, it is not a defense that child, grandchild or spousal support is provided wholly or partially by any other person or entity.

948.22(6) (6) Under this section, affirmative defenses include but are not limited to inability to provide child, grandchild or spousal support. A person may not demonstrate inability to provide child, grandchild or spousal support if the person is employable but, without reasonable excuse, either fails to diligently seek employment, terminates employment or reduces his or her earnings or assets. A person who raises an affirmative defense has the burden of proving the defense by a preponderance of the evidence.

948.22(7) (7) 

948.22(7)(a) (a) Before trial, upon petition by the complainant and notice to the defendant, the court may enter a temporary order requiring payment of child, grandchild or spousal support.

948.22(7)(b) (b) In addition to or instead of imposing a penalty authorized for a Class I felony or a Class A misdemeanor, whichever is appropriate, the court shall:

948.22(7)(b)1. 1. If a court order requiring the defendant to pay child, grandchild or spousal support exists, order the defendant to pay the amount required including any amount necessary to meet a past legal obligation for support.

948.22(7)(b)2. 2. If no court order described under subd. 1. exists, enter such an order. For orders for child or spousal support, the court shall determine the amount of support in the manner required under s. 767.511 or 767.89, regardless of the fact that the action is not one for a determination of paternity or an action specified in s. 767.511 (1).

948.22(7)(bm) (bm) Upon request, the court may modify the amount of child or spousal support payments determined under par. (b) 2. if, after considering the factors listed in s. 767.511 (1m), regardless of the fact that the action is not one for a determination of paternity or an action specified in s. 767.511 (1), the court finds, by the greater weight of the credible evidence, that the use of the percentage standard is unfair to the child or to either of the child’s parents.

948.22(7)(c) (c) An order under par. (a) or (b), other than an order for grandchild support, constitutes an income assignment under s. 767.75 and may be enforced under s. 767.77. Any payment ordered under par. (a) or (b), other than a payment for grandchild support, shall be made in the manner provided under s. 767.57.

948.22 History History: 1985 a. 29, 56; 1987 a. 332 s. 33; Stats. 1987 s. 948.22; 1989 a. 31, 212; 1993 a. 274, 481; 1995 a. 289; 1997 a. 35, 191, 252; 1999 a. 9; 2001 a. 109; 2003 a. 321; 2005 a. 443 s. 265; 2007 a. 20.

948.22 Annotation Under s. 940.27 (2) [now sub. (2)], the state must prove that the defendant had an obligation to provide support and failed to do so for 120 days. The state need not prove that the defendant was required to pay a specific amount. Sub. (6) does not unconstitutionally shift the burden of proof. State v. Duprey, 149 Wis. 2d 655, 439 N.W.2d 837 (Ct. App. 1989).

948.22 Annotation Multiple prosecutions for a continuous failure to pay child support are allowed. State v. Grayson, 172 Wis. 2d 156, 493 N.W.2d 23 (1992).

948.22 Annotation Jurisdiction in a criminal nonsupport action under this section does not require that the child to be supported be a resident of Wisconsin during the charged period. State v. Gantt, 201 Wis. 2d 206, 548 N.W.2d 134 (Ct. App. 1996), 95-2469.

948.22 Annotation Evidence of incarceration to prove inability to pay is not excluded under sub. (6), and there was no basis to find the evidence irrelevant. State v. Stutesman, 221 Wis. 2d 178, 585 N.W.2d 181 (Ct. App. 1998), 97-2991.

948.22 Annotation This section does not distinguish between support and arrearages. It criminalizes failure to pay arrearages even after the child for whom support is ordered attains majority. Incarceration for violation of this section is not unconstitutional imprisonment for a debt. State v. Lenz, 230 Wis. 2d 529, 602 N.W.2d 173 (Ct. App. 1999), 99-0860.

948.22 Annotation If nonsupport is charged as a continuing offense, the statute of limitations runs from the last date the defendant intentionally fails to provide support. If charges are brought for each 120 day period that a person does not pay, the statute of limitations bars charging for those 120 day periods that are more than six years old. The running of the statute of limitations does not prevent inclusion of all unpaid amounts in a later arrearage order. State v. Monarch, 230 Wis. 2d 542, 602 N.W.2d 179 (Ct. App. 1999), 99-1054.

948.22 Annotation A father who intentionally refused to pay child support could, as a condition of probation, be required to avoid having another child unless he showed that he could support that child and his current children. In light of the defendant’s ongoing victimization of his children and record manifesting his disregard for the law, the condition was not overly broad and was reasonably related to the defendant’s rehabilitation. State v. Oakley, 2001 WI 103, 245 Wis. 2d 447, 629 N.W.2d 200, 99-3328.

948.22 Annotation Whether a court of competent jurisdiction ordered a defendant to pay child support is not an element of failure to pay child support. A question in that regard need not be submitted to the jury. Because the defendant did not identify a historical fact inconsistent with an incident of the Maine court’s jurisdiction, whether a court of competent jurisdiction ordered the defendant to pay child support was a purely legal question for the court to determine. State v. Smith, 2005 WI 104, 283 Wis. 2d 57, 699 N.W.2d 508, 03-1698.

948.23 948.23 Concealing or not reporting death of a child; not reporting disappearance of a child.

948.23(1) (1) Whoever does any of the following is guilty of a Class I felony:

948.23(1)(a) (a) Conceals the corpse of any issue of a woman’s body with intent to prevent a determination of whether it was born dead or alive.

948.23(1)(b) (b) Unless a physician or an authority of a hospital, sanatorium, public or private institution, convalescent home, or any institution of a like nature is required to report the death under s. 979.01 (1) or unless a report conflicts with religious tenets or practices, fails to report to law enforcement the death of a child immediately after discovering the death, or as soon as practically possible if immediate reporting is impossible, if the actor is the parent, stepparent, guardian, or legal custodian of the child and if any of the following applies:

948.23(1)(b)1. 1. The death involves unexplained, unusual, or suspicious circumstances.

948.23(1)(b)2. 2. The death is or appears to be a homicide or a suicide.

948.23(1)(b)3. 3. The death is due to poisoning.

948.23(1)(b)4. 4. The death follows an accident, whether the injury is or is not the primary cause of the death.

948.23(2) (2) Whoever, without authorization under s. 69.18 or other legal authority to move a corpse, hides or buries the corpse of a child is guilty of a Class F felony.

948.23(3) (3) 

948.23(3)(ag) (ag) In this subsection, “missing” means absent without a reasonable explanation if the absence would raise concern in a reasonable person for the child’s well-being.

948.23(3)(am) (am) Within the period under par. (b), an individual must report to law enforcement a child as missing if the individual is the parent, stepparent, guardian, or legal custodian of the child.

948.23(3)(b) (b)

948.23(3)(b)1. 1. The report under par. (am) must be made within 24 hours after the child is discovered to be missing if the child is under 13 years of age when the discovery is made.

948.23(3)(b)2. 2. The report under par. (am) must be made within 48 hours after the child is discovered to be missing if the child is at least 13 years of age but under 16 years of age when the discovery is made.