Chapter 948

948.02 948.02 Sexual assault of a child.

948.02(1) (1) First degree sexual assault.

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 History History: 1987 a. 332; 1989 a. 31; 1995 a. 14, 69; 2001 a. 109; 2005 a. 430, 437; 2007 a. 80; 2013 a. 167; 2017 a. 174.

948.02 Annotation Discussing relevant evidence in child sexual assault cases. Michael R.B. v. State, 175 Wis. 2d 713, 499 N.W.2d 641 (1993).

948.02 Annotation Discussing 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 Annotation The 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 Annotation Second 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 Annotation For 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 Annotation Expert 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 Annotation That 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 Annotation Section 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 Annotation Sub. (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 Annotation The 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 Annotation The 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 Annotation The 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 Annotation The constitutionality of this statute is upheld. Sweeney v. Smith, 9 F. Supp. 2d 1026 (1998).

948.02 Annotation Statutory Rape in Wisconsin: History, Rationale, and the Need for Reform. Olszewski. 89 MLR 693 (2006).

948.025 948.025 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(1)(a) (a) A Class A felony if at least 3 of the violations were violations of s. 948.02 (1) (am).

948.025(1)(b) (b) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1) (am), (b), or (c).

948.025(1)(c) (c) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1) (am), (b), (c), or (d).

948.025(1)(d) (d) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1).

948.025(1)(e) (e) A Class C felony if at least 3 of the violations were violations of s. 948.02 (1) or (2).

948.025(2) (2) 

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 History History: 1993 a. 227; 1995 a. 14; 2001 a. 109; 2005 a. 430, 437; 2007 a. 80.

948.025 Annotation This section does not violate the right to a unanimous verdict or to due process. State v. Johnson, 2001 WI 52, 243 Wis. 2d 365, 627 N.W.2d 455, 99-2968.

948.025 Annotation Convicting 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 Annotation The 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 Annotation The 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 Annotation When 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.

948.03 948.03 Physical abuse of a child.

948.03(1) (1) Definitions. In this section, “recklessly” means conduct which creates a situation of unreasonable risk of harm to and demonstrates a conscious disregard for the safety of the child.

948.03(2) (2) Intentional causation of bodily harm.

948.03(2)(a) (a) Whoever intentionally causes great bodily harm to a child is guilty of a Class C felony.

948.03(2)(b) (b) Whoever intentionally causes bodily harm to a child is guilty of a Class H felony.

948.03(2)(c) (c) Whoever intentionally causes bodily harm to a child by conduct which creates a high probability of great bodily harm is guilty of a Class F felony.

948.03(3) (3) Reckless causation of bodily harm.

948.03(3)(a) (a) Whoever recklessly causes great bodily harm to a child is guilty of a Class E felony.

948.03(3)(b) (b) Whoever recklessly causes bodily harm to a child is guilty of a Class I felony.

948.03(3)(c) (c) Whoever recklessly causes bodily harm to a child by conduct which creates a high probability of great bodily harm is guilty of a Class H felony.

948.03(4) (4) Failing to act to prevent bodily harm.

948.03(4)(a) (a) A person responsible for the child’s welfare is guilty of a Class F felony if that person has knowledge that another person intends to cause, is causing or has intentionally or recklessly caused great bodily harm to the child and is physically and emotionally capable of taking action which will prevent the bodily harm from occurring or being repeated, fails to take that action and the failure to act exposes the child to an unreasonable risk of great bodily harm by the other person or facilitates the great bodily harm to the child that is caused by the other person.

948.03(4)(b) (b) A person responsible for the child’s welfare is guilty of a Class H felony if that person has knowledge that another person intends to cause, is causing or has intentionally or recklessly caused bodily harm to the child and is physically and emotionally capable of taking action which will prevent the bodily harm from occurring or being repeated, fails to take that action and the failure to act exposes the child to an unreasonable risk of bodily harm by the other person or facilitates the bodily harm to the child that is caused by the other person.

948.03(5) (5) Engaging in repeated acts of physical abuse of the same child.

948.03(5)(a) (a) Whoever commits 3 or more violations under sub. (2), (3), or (4) within a specified period involving the same child is guilty of the following:

948.03(5)(a)1. 1. A Class A felony if at least one violation caused the death of the child.

948.03(5)(a)2. 2. A Class B felony if at least 2 violations were violations of sub. (2) (a).

948.03(5)(a)3. 3. A Class C felony if at least one violation resulted in great bodily harm to the child.

948.03(5)(a)4. 4. A Class D felony if at least one violation created a high probability of great bodily harm to the child.

948.03(5)(a)5. 5. A Class E felony.

948.03(5)(b) (b) If an action under par. (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 sub. (2), (3), or (4) occurred within the specified period but need not agree on which acts constitute the requisite number.

948.03(5)(c) (c) The state may not charge in the same action a defendant with a violation of this subsection and with a violation involving the same child under sub. (2), (3), or (4), unless the other violation occurred outside of the period applicable under par. (a). This paragraph does not prohibit a conviction for an included crime under s. 939.66 when the defendant is charged with a violation of this subsection.

948.03(6) (6) Treatment through prayer. A person is not guilty of an offense under this section solely because he or she provides a child with treatment by spiritual means through prayer alone for healing in accordance with the religious method of healing permitted under s. 48.981 (3) (c) 4. or 448.03 (6) in lieu of medical or surgical treatment.

948.03 History History: 1987 a. 332; 2001 a. 109; 2007 a. 80; 2009 a. 308; 2015 a. 366.

948.03 Annotation To obtain a conviction for aiding and abetting a violation of sub. (2) or (3), the state must prove conduct that as a matter of objective fact aids another in executing the crime. State v. Rundle, 176 Wis. 2d 985, 500 N.W.2d 916 (1993).

948.03 Annotation To overcome the privilege of parental discipline in s. 939.45 (5), the state must prove beyond a reasonable doubt that only one of the following is not met: 1) the use of force must be reasonably necessary; 2) the amount and nature of the force used must be reasonable; and 3) the force used must not be known to cause, or create a substantial risk of, great bodily harm or death. Whether a reasonable person would have believed the amount of force used was necessary and not excessive must be determined from the standpoint of the defendant at the time of the defendant’s acts. The standard is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at the time of the alleged offense. State v. Kimberly B., 2005 WI App 115, 283 Wis. 2d 731, 699 N.W.2d 641, 04-1424.

948.03 Annotation The definition of reckless in this section is distinct from the general definition found in s. 939.24 and does not contain a state of mind element. Because the defense of mistake applies only to criminal charges with a state of mind element, the trial court properly exercised its discretion in refusing to give an instruction on the mistake defense. State v. Hemphill, 2006 WI App 185, 296 Wis. 2d 198, 722 N.W.2d 393, 05-1350.

948.03 Annotation Reckless child abuse requires that a defendant’s actions demonstrate a conscious disregard for the safety of a child, not that the defendant was subjectively aware of that risk. In contrast, criminal recklessness under s. 939.24 (1) is defined as when the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk. Thus, recklessly causing harm to a child is distinguished from criminal recklessness, because only the latter includes a subjective component. State v. Williams, 2006 WI App 212, 296 Wis. 2d 834, 723 N.W.2d 719, 05-2282.

948.03 Annotation Testimony supporting the defendant’s assertion that the defendant was beaten with a belt as a child was not relevant to whether the amount of force the defendant used in spanking the defendant’s child was objectively reasonable. A parent may not abuse the parent’s child and claim that conduct is reasonable based on the parent’s history of being similarly abused. State v. Williams, 2006 WI App 212, 296 Wis. 2d 834, 723 N.W.2d 719, 05-2282.

948.03 Annotation The treatment-through-prayer provision under sub. (6) by its terms applies only to charges of criminal child abuse under this section. On its face, the treatment-through-prayer provision does not immunize a parent from any criminal liability other than that created by the criminal child abuse statute. No one reading the treatment-through-prayer provision should expect protection from criminal liability under any other statute. State v. Neumann, 2013 WI 58, 348 Wis. 2d 455, 832 N.W.2d 560, 11-1044.

948.03 Annotation The second-degree reckless homicide statute, s. 940.06, and this section are sufficiently distinct that a parent has fair notice of conduct that is protected and conduct that is unprotected. The statutes are definite enough to provide a standard of conduct for those whose activities are proscribed and those whose conduct is protected. A reader of the treatment-through-prayer provision, sub. (6), cannot reasonably conclude that the reader can, with impunity, use prayer treatment as protection against all criminal charges. The statutes are not unconstitutional on due process fair notice grounds. State v. Neumann, 2013 WI 58, 348 Wis. 2d 455, 832 N.W.2d 560, 11-1044.

948.03 Annotation This section penalizes two types of harm: 1) bodily harm; and 2) great bodily harm. The definition of “substantial bodily harm” under s. 939.22 (38) that includes bone fractures is inapplicable to this section. Although bone fractures do not involve a risk of death, disfigurement, or a permanent or protracted loss or impairment of any part of a victim’s body, they can fall under the “other serious bodily injury” segment of the “great bodily harm” definition in s. 939.22 (14). Just because all fractures meet the definition of substantial bodily harm, that does not imply that a particular fracture, or multiple fractures as was the case here, cannot be serious enough to qualify as an “other serious bodily injury” for purposes of being great bodily harm. State v. Davis, 2016 WI App 73, 371 Wis. 2d 737, 885 N.W.2d 807, 15-2030.

948.04 948.04 Causing mental harm to a child.

948.04(1) (1) Whoever is exercising temporary or permanent control of a child and causes mental harm to that child by conduct which demonstrates substantial disregard for the mental well-being of the child is guilty of a Class F felony.

948.04(2) (2) A person responsible for the child’s welfare is guilty of a Class F felony if that person has knowledge that another person has caused, is causing or will cause mental harm to that child, is physically and emotionally capable of taking action which will prevent the harm, fails to take that action and the failure to act exposes the child to an unreasonable risk of mental harm by the other person or facilitates the mental harm to the child that is caused by the other person.

948.04 History History: 1987 a. 332; 2001 a. 109.

948.05 948.05 Sexual exploitation of a child.

948.05(1) (1) Whoever does any of the following with knowledge of the character and content of the sexually explicit conduct involving the child may be penalized under sub. (2p):

948.05(1)(a) (a) Employs, uses, persuades, induces, entices, or coerces any child to engage in sexually explicit conduct for the purpose of recording or displaying in any way the conduct.

948.05(1)(b) (b) Records or displays in any way a child engaged in sexually explicit conduct.

948.05(1m) (1m) Whoever produces, performs in, profits from, promotes, imports into the state, reproduces, advertises, sells, distributes, or possesses with intent to sell or distribute, any recording of a child engaging in sexually explicit conduct may be penalized under sub. (2p) if the person knows the character and content of the sexually explicit conduct involving the child and if the person knows or reasonably should know that the child engaging in the sexually explicit conduct has not attained the age of 18 years.

948.05(2) (2) A person responsible for a child’s welfare who knowingly permits, allows or encourages the child to engage in sexually explicit conduct for a purpose proscribed in sub. (1) (a) or (b) or (1m) may be penalized under sub. (2p).