AB209: Bill Text

AB209, s. 1 Section 1. 301.45 (1d) (b) of the statutes is amended to read:

AB209,5,4 301.45 (1d) (b) "Sex offense" means a violation, or the solicitation, conspiracy, or attempt to commit a violation, of s. 940.22 (2), 940.225 (1), (2) or (3), 944.06, 948.02 (1) or (2), 948.025, 948.05, 948.055, 948.06, 948.07 (1) to (4), 948.075, 948.08, 948.085, 948.095, 948.11 (2) (a) or (am), 948.12, 948.13, or 948.30, or of s. 940.30 or 940.31 if the victim was a minor and the person who committed the violation was not the victim's parent.

Note: This Section modifies the list of offenses for which sex offender registration is required to remove s. 948.07 (5) and (6), stats. (child enticement with intent to cause bodily or mental harm to a child or to give or sell a controlled substance or controlled substance analog to a child).

AB209, s. 2 Section 2. 301.48 (1) (e) 1. of the statutes, as created by 2005 Wisconsin Act 431, is amended to read:

AB209,5,7 301.48 (1) (e) 1. Section 948.02 (1) (b), (c), (am) or (d) or 948.025 (1) (a) or (ag).

Note: This Section expands the GPS tracking requirements so that they apply to a person found to have committed first-degree sexual assault of a child if the offender caused great bodily harm to the child.

AB209, s. 3 Section 3. 301.48 (1) (e) 1m. of the statutes is created to read:

AB209,5,10 301.48 (1) (e) 1m. Section 948.02 (1) (b) or (c) or 948.025 (1) (b) or (c) if the offense involved sexual intercourse.

Note: This Section provides that, if a person is convicted under s. 948.02 (1) (b) or (c) or 948.025 (1) (b) or (c) of having sexual intercourse with a person under 12 years of age or of having sexual intercourse with a person under 16 years of age by the use or threat of force or violence, the person is subject to GPS tracking requirements if the offense involved sexual intercourse as defined for s. 301.48. Under that section, "sexual intercourse" is defined as vulvar penetration as well as cunnilingus, fellatio, or anal intercourse between persons or any intrusion of any inanimate object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required.

This definition applies to the offenses under ss. 948.02 (1) (b) and (c) and 948.025 (1) (b) and (c) under current law. This bill repeals that definition from s. 948.02. Therefore, under this Section, GPS tracking requirements under current law for the offenses described above are not affected.

AB209, s. 4 Section 4. 301.48 (1) (e) 2. d. of the statutes is created to read:

AB209,5,14 301.48 (1) (e) 2. d. The actor has sexual contact or sexual intercourse with a person who has not attained the age of 13 years and causes great bodily harm, as defined in s. 939.22 (14), to the person.

Note: This Section requires GPS tracking for a person found to have committed first-degree sexual assault of a child under the 2003 statutes if the actor had sexual contact or sexual intercourse with a person under the age of 13 years and the offender caused great bodily harm to the person.

AB209, s. 5 Section 5. 939.616 (1) of the statutes is renumbered 939.616 (1r) and amended to read:

AB209,6,7 939.616 (1r) If a person is convicted of a violation of s. 948.02 (1) (b) or (c) or 948.025 (1) (a) (b), the court shall impose a bifurcated sentence under s. 973.01. The term of confinement in prison portion of the bifurcated sentence shall be at least 25 years. Otherwise the penalties for the crime apply, subject to any applicable penalty enhancement.

Note: This Section changes a cross-reference to reflect the renumbering of s. 948.025 (1) in the bill.

AB209, s. 6 Section 6. 939.616 (1g) of the statutes is created to read:

AB209,6,12 939.616 (1g) If a person is convicted of a violation of s. 948.02 (1) (am) or 948.025 (1) (a), notwithstanding s. 973.014 (1g) (a) 1. and 2., the court may not make an extended supervision eligibility date determination on a date that will occur before the person has served a 25-year term of confinement in prison.

Note: This Section provides that if a person is convicted of having sexual intercourse or sexual contact with a person who is under 13 years of age and causing great bodily harm to the person or having repeatedly committed such an act, the court must order a term of confinement in prison of at least 25 years. The underlying offense is a Class A felony.

AB209, s. 7 Section 7. 939.616 (2) of the statutes is amended to read:

AB209,6,18 939.616 (2) If a person is convicted of a violation of s. 948.02 (1) (d) or 948.025 (1) (ag) (c), the court shall impose a bifurcated sentence under s. 973.01. The term of confinement in prison portion of the bifurcated sentence shall be at least 5 years. Otherwise the penalties for the crime apply, subject to any applicable penalty enhancement.

Note: This Section changes a cross-reference to reflect the renumbering of s. 948.025 (1) in the bill.

AB209, s. 8 Section 8. 939.616 (3) of the statutes is amended to read:

AB209,7,3 939.616 (3) This section does not apply if s. 939.62 (2m) (c) applies. The mandatory minimum sentences in this section do not apply to an offender who was under 18 years of age when the violation occurred.

Note: This Section provides that mandatory minimum terms of prison confinement for first-degree sexual assault of a child do not apply if the offender was under 18 years of age when the violation occurred.

AB209, s. 9 Section 9. 939.74 (2) (a) of the statutes, as affected by 2005 Wisconsin Act 276, is amended to read:

AB209,7,7 939.74 (2) (a) A prosecution under s. 940.01, 940.02, 940.03, 940.05, 948.02 (1), or 948.025 (1) (a), (b), (c), or (d) may be commenced at any time.

Note: This Section adds cross-references to additional offenses of engaging in repeated acts of first-degree sexual assault of the same child to include all offenses of engaging in repeated acts of sexual assault of the same child. Under this Section, there is no time limitation for prosecuting any first-degree sexual assault of a child offense.

AB209, s. 10 Section 10. 939.74 (2d) (c) of the statutes, as affected by 2005 Wisconsin Acts 60 and 276, is repealed and recreated to read:

AB209,7,20 939.74 (2d) (c) If before the time limitation under sub. (2) (c) expired, the state collected biological material that is evidence of the identity of the person who committed a violation of s. 948.02 (2) or 948.025 (1) (e), the state identified a deoxyribonucleic acid profile from the biological material, and comparisons of that deoxyribonucleic acid profile to deoxyribonucleic acid profiles of known persons did not result in a probable identification of the person who is the source of the biological material, the state may commence prosecution of the person who is the source of the biological material for the violation of s. 948.02 (2) or 948.025 (1) (e) or a crime that is related to the violation or both within 12 months after comparison of the deoxyribonucleic acid profile relating to the violation results in a probable identification of the person.

Note: This Section provides that, within 12 months after a DNA profile is matched to an identified person for a violation of second-degree sexual assault of a child, a prosecution may be brought for the second-degree sexual assault of a child violation or for a crime that is related to the sexual assault violation, or both.

Under current law, crimes are related if they are committed against the same victim, are proximate in time, and are committed with the same intent, purpose, or opportunity so as to be part of the same course of conduct.

AB209, s. 11 Section 11. 939.74 (2d) (d) of the statutes is created to read:

AB209,8,12 939.74 (2d) (d) If a crime is related to a violation of s. 948.02 (1) or 948.025 (1) (a), (b), (c), or (d) and if, before the time limitation for prosecution of that related crime expired, the state collected biological material that is evidence of the identity of the person who committed the violation of s. 948.02 (1) or 948.025 (1) (a), (b), (c), or (d), the state identified a deoxyribonucleic acid profile from the biological material, and comparisons of that deoxyribonucleic acid profile to deoxyribonucleic acid profiles of known persons did not result in a probable identification of the person who is the source of the biological material, the state may commence prosecution of the person who is the source of the biological material for the related crime within 12 months after comparison of that deoxyribonucleic acid profile results in a probable identification of the person.

Note: This Section provides that, within 12 months after a DNA profile is matched to an identified person for a violation of first-degree sexual assault of a child, a prosecution may be brought for a crime that is related to the sexual assault violation if the state collected DNA evidence before the statute of limitations for the prosecution of the related crime expired.

AB209, s. 12 Section 12. 948.02 (1) of the statutes, as affected by 2005 Wisconsin Acts 430 and 437, is repealed and recreated to read:

AB209,8,17 948.02 (1) First degree sexual assault. (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.

AB209,8,19 (b) Whoever has sexual intercourse with a person who has not attained the age of 12 years is guilty of a Class B felony.

AB209,9,2 (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.

AB209,9,5 (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.

AB209,9,7 (e) Whoever has sexual contact with a person who has not attained the age of 13 years is guilty of a Class B felony.

Note: This Section recreates the offense of first-degree sexual assault of a child to reflect the changes made in Acts 430 and 437.

This Section deletes the separate definition of "sexual intercourse" so that the general definition for ch. 948 applies to the offense of first-degree sexual assault of a child.

Also under this Section, the wording par. (am) is amended to remove a requirement under Act 430 that the great bodily harm result from the sexual contact or sexual intercourse. This change is intended to allow conviction under par. (am) if the great bodily harm was caused by the defendant during the course of conduct that immediately preceded, was concurrent with, or immediately followed the act of sexual assault. See, State v. Schambow, 176 Wis. 2d 286, 500 N.W.2d 362 (Ct. App. 1993).

AB209, s. 13 Section 13. 948.025 (1) of the statutes, as affected by 2005 Wisconsin Acts 430 and 437, is repealed and recreated to read:

AB209,9,11 948.025 (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:

AB209,9,13 (a) A Class A felony if at least 3 of the violations were violations of s. 948.02 (1) (am).

AB209,9,15 (b) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1) (am), (b), or (c).

AB209,9,17 (c) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1) (am), (b), (c), or (d).

AB209,9,18 (d) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1).

AB209,10,2 (e) A Class C felony if at least 3 of the violations were violations of s. 948.02 (1) or (2).

Note: This Section restructures the offense of engaging in repeated acts involving the same child. Under current law, for example, par. (c) requires a showing that the defendant committed at least 3 violations of sub. (1) (am), (b), (c), or (d), but that fewer than 3 of the violations were of sub. (am), (b), or (c).

AB209, s. 14 Section 14. 948.025 (2) of the statutes, as affected by 2005 Wisconsin Acts 430 and 437, is repealed and recreated to read:

AB209,10,8 948.025 (2) (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.

AB209,10,13 (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).

AB209,10,18 (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).

AB209,10,22 (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.

AB209,11,5 (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).

Note: This Section reconciles Acts 430 and 437 for the required jury findings to convict a person of repeated acts of sexual assault of the same child. Under this Section, in an action alleging that a person committed at least 3 violations that resulted in great bodily harm, the members of the jury must unanimously agree that at least 3 violations resulting in great bodily harm occurred within the specified period of time but need not agree on which acts constitute the requisite number.

For the other actions of repeated sexual assault of the same child, the members of the jury must unanimously agree that at least 3 of the specified violations occurred within the specified period of time but need not agree which acts constitute the requisite number and need not agree on whether a particular violation was a violation of a specific first-degree sexual assault of a child provision (i.e., whether the act involved sexual intercourse with a person under the age of 12 years or involved sexual intercourse with a person under the age of 16 years by use or threat of force or violence).

AB209, s. 15 Section 15. 948.025 (3) of the statutes is amended to read:

AB209,11,13 948.025 (3) The state may not charge in the same action a defendant with a violation of this section and with a felony violation involving the same child under ch. 944 or a violation involving the same child under s. 948.02 , 948.05, 948.06, 948.07, 948.075, 948.08, or 948.10, 948.11, or 948.12, 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.

Note: Current law prohibits any of the following violations from being charged in the same action as a charge of engaging in repeated acts of sexual assault of the same child unless the other violation occurred outside of the time period in which the repeated acts took place: crimes against sexual morality [ch. 944, stats.], sexual assault of a child [s. 948.02, stats.], sexual exploitation of a child [s. 948.05, stats.], incest with a child [s. 948.06, stats.], child enticement [s. 948.07, stats.], use of a computer to facilitate a child sex crime [s. 948.075, stats.], soliciting a child for prostitution [s. 948.08, stats.], exposing a genital or pubic area [s. 948.10, stats.], exposing a child to harmful material or harmful descriptions or narrations [s. 948.11, stats.], or possession of child pornography [s. 948.12, stats.].

This Section allows prosecution of all of these violations except sexual assault of a child and exposing genitals to a child in the same action as a charge of engaging in repeated acts of sexual assault of the same child, even if the other violation occurred during the time period in which the repeated acts took place.

AB209, s. 16 Section 16. 948.03 (2) (a) of the statutes is amended to read:

AB209,12,3 948.03 (2) (a) Whoever intentionally causes great bodily harm to a child is guilty of a Class E C felony.

Note: This Section increases the penalty for intentionally causing great bodily harm to a child from a Class E to a Class C felony.

AB209, s. 17 Section 17. 948.08 of the statutes is amended to read:

AB209,12,7 948.08 Soliciting a child for prostitution. Whoever intentionally solicits or causes any child to practice engage in an act of prostitution or establishes any child in a place of prostitution is guilty of a Class D felony.

Note: This Section modifies the offense of soliciting a child for prostitution so that it is a Class D felony to intentionally solicit or cause any child to engage in an act of prostitution, instead of to intentionally solicit or cause any child to practice prostitution.

AB209, s. 18 Section 18. 948.21 (1) of the statutes is renumbered 948.21 (1) (intro.) and amended to read:

AB209,12,12 948.21 (1) (intro.) Any person who is responsible for a child's welfare who, through his or her actions or failure to take action, intentionally contributes to the neglect of the child is guilty of a one of the following:

AB209,12,13 (a) A Class A misdemeanor or, if death is a consequence, a Class D felony.

Note: The offense for neglect in which death is a consequence is moved to par. (d), in Section 19 of the bill.

AB209, s. 19 Section 19 . 948.21 (1) (b), (c) and (d) of the statutes are created to read:

AB209,12,15 948.21 (1) (b) A Class H felony if bodily harm is a consequence.

AB209,12,16 (c) A Class F felony if great bodily harm is a consequence.

AB209,12,17 (d) A Class D felony if death is a consequence.

Note: This Section creates offenses for neglect if bodily harm is a consequence and if great bodily harm is a consequence. The offense involving bodily harm is a Class H felony and the offense involving great bodily harm is a Class F felony.

AB209, s. 20 Section 20. 948.53 (2) (b) of the statutes is renumbered 948.53 (2) (b) (intro.) and amended to read:

AB209,13,4 948.53 (2) (b) (intro.) Any person who violates par. (a) is guilty of a one of the following:

AB209,13,5 1. A Class A misdemeanor or, if death is a consequence, a Class G felony.

AB209, s. 21 Section 21. 948.53 (2) (b) 2., 3. and 4. of the statutes are created to read:

AB209,13,7 948.53 (2) (b) 2. A Class I felony if bodily harm is a consequence.

AB209,13,8 3. A Class H felony if great bodily harm is a consequence.

AB209,13,9 4. A Class G felony if death is a consequence.

Note: This Section creates offenses for cases in which bodily harm is a consequence of leaving a child unattended in a child care vehicle and in which great bodily harm is a consequence. The offense involving bodily harm is a Class I felony and the offense involving great bodily harm is a Class H felony.

AB209, s. 22 Section 22. 972.15 (1m) of the statutes is created to read:

AB209,13,17 972.15 (1m) Sex offenses against minors. If a person is convicted for a felony that requires him or her to register under s. 301.45 and if the victim was under 18 years of age at the time of the offense, the court shall order the department to conduct a presentence investigation report to assess whether the person is at risk for committing another sex offense, as defined in s. 301.45 (1d) (b), against a minor, unless the court finds that the report would not materially benefit the court or the department.