2013 - 2014 LEGISLATURE
January 15, 2014 - Introduced by Senators Petrowski, Kedzie, Lehman, Olsen and
Schultz, cosponsored by Representatives Nass, Petryk, Hesselbein, Kulp,
Kolste, Murphy, LeMahieu, Pridemore, T. Larson, Vruwink, Bernard
Schaber
, Marklein, Bernier, Ripp and Bies. Referred to Committee on
Transportation, Public Safety, and Veterans and Military Affairs.
SB491,1,4 1An Act to amend 322.001 (15), 322.001 (23), 322.016 (2) (a), 322.026 (2) (a) and
2322.139 (1); to repeal and recreate 322.120; and to create 322.1201,
3322.1202 and 322.1203 of the statutes; relating to: stalking and sexual
4offenses under the code of military justice.
Analysis by the Legislative Reference Bureau
Currently, the statutes include the Wisconsin Code of Military Justice, which
provides the procedures, responsibilities, and penalties concerning actions involving
members of the state military forces, generally the members of the Wisconsin Air and
Army National Guard, that may result in a court-martial. This code parallels the
federal code of military justice, which applies to active members of the U.S. armed
forces. These codes establish the members of and methods used in a court-martial,
as well as the types of behavior that may result in being the subject of a
court-martial.
This bill replaces one section of the code currently dealing with rape and carnal
knowledge with four new sections concerning sexual assault of adults and children,
other sexual misconduct, and stalking, to make the Wisconsin code consistent with
changes made in the federal code in 2011. The bill defines what constitutes sexual
assault against an adult and against a child, other sexual misconduct, and stalking,
specifies what defenses are available to a defendant, and provides for punishment
as determined by the members of the court martial.
The bill also allows a commissioned officer of the U.S. armed forces to preside
over a court-martial involving a member of the state military forces. Currently, only

a commissioned officer of a Wisconsin military force may preside over a
court-martial involving a member of the state military forces.
The bill removes the requirement that the commanding officer convene a board
of three commissioned officers to investigate and recommend action regarding a
complaint that a member of a state military force damaged or took another person's
property. Instead, the bill allows the commanding officer to investigate the
complaint and determine the amount, if any, that has to be paid to an injured party.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report concerning the proposed penalty and the costs or savings that are likely to
result if the bill is enacted.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB491,1 1Section 1. 322.001 (15) of the statutes is amended to read:
SB491,3,102 322.001 (15) "Military offenses" means those offenses prescribed under articles
377, principals; 78, accessory after the fact; 80, attempts; 81, conspiracy; 82,
4solicitation; 83, fraudulent enlistment, appointment, or separation; 84, unlawful
5enlistment, appointment, or separation; 85, desertion; 86, absence without leave; 87,
6missing movement; 88, contempt toward officials; 89, disrespect towards superior
7commissioned officer; 90, assaulting or willfully disobeying superior commissioned
8officer; 91, insubordinate conduct toward warrant officer, noncommissioned officer,
9or petty officer; 92, failure to obey order or regulation; 93, cruelty and maltreatment;
1094, mutiny or sedition; 95, resistance, flight, breach of arrest, and escape; 96,
11releasing prisoner without proper authority; 97, unlawful detention; 98,
12noncompliance with procedural rules; 99, misbehavior before the enemy; 100,
13subordinate compelling surrender; 101, improper use of countersign; 102, forcing a
14safeguard; 103, captured or abandoned property; 104, aiding the enemy; 105,
15misconduct as prisoner; 107, false official statements; 108, military property — loss,
16damage, destruction, or wrongful disposition; 109, property other than military

1property — waste, spoilage, or destruction; 110, improper hazarding of vessel; 111,
2drunken or reckless operation of a vehicle, aircraft, or vessel; 112, drunk on duty;
3112a, wrongful use, or possession of controlled substances; 113, misbehavior of
4sentinel; 114, dueling; 115, malingering; 116, riot or breach of peace; 117, provoking
5speeches or gestures; 120, rape or carnal knowledge; and sexual assault generally;
6120a, stalking; 120b, rape and sexual assault of a child; 120c, sexual misconduct;

7121, larceny and wrongful appropriation; 122, robbery; 123, forgery; 124, maiming;
8126, arson; 127, extortion; 128, assault; 129, burglary; 130, housebreaking; 131,
9perjury; 132, frauds against the government; 133, conduct unbecoming an officer and
10a gentleman; and 134, general; of this code.
SB491,2 11Section 2. 322.001 (23) of the statutes is amended to read:
SB491,3,1812 322.001 (23) "State military forces" means the Wisconsin army and air national
13guard, the national guard, as defined in 32 USC 502, 503, or 904 101, the state
14defense force, the organized naval militia of the state, and any other military force
15organized under the Constitution and laws of the state, and but does not include the
16unorganized militia, state guard, or home guard, when not in. "State military forces"
17does not include the national guard when under
a status subjecting them to exclusive
18jurisdiction under 10 USC ch. 47.
SB491,3 19Section 3. 322.016 (2) (a) of the statutes is amended to read:
SB491,3,2220 322.016 (2) (a) A military judge and not less than 3 members. An accused may
21waive having 12 members and proceed to a special court-martial with not less than
226 members.
SB491,4 23Section 4. 322.026 (2) (a) of the statutes is amended to read:
SB491,4,3
1322.026 (2) (a) Be a commissioned officer of the armed forces of the United
2States or of a component thereof or a commissioned officer of
an organized state
3military force.
SB491,5 4Section 5. 322.120 of the statutes is repealed and recreated to read:
SB491,4,5 5322.120 Article 120 - Rape and sexual assault generally.
SB491,4,6 6(1) In this section:
SB491,4,87 (a) "Bodily harm" means any offensive touching of another, however slight,
8including any nonconsensual sexual act or nonconsensual sexual contact.
SB491,4,109 (b) 1. "Consent" means a freely given agreement to the conduct at issue by a
10competent person.
SB491,4,1911 2. An expression of lack of consent through words or conduct means there is no
12consent. Submission or lack of oral or physical resistance, resulting from the use of
13force, threat of force, or placing another person in fear, does not constitute consent.
14A current or previous dating or social or sexual relationship by itself or the manner
15of dress of the person involved with the accused in the conduct at issue shall not
16constitute consent. A sleeping, unconscious, or incompetent person cannot consent.
17A person cannot consent to force causing or likely to cause death or grievous bodily
18harm or to being rendered unconscious. A person cannot consent while under threat
19or in fear.
SB491,4,2320 3. Lack of consent may be inferred based on the circumstances of the offense.
21All the surrounding circumstances are to be considered in determining whether a
22person gave consent or whether a person did not resist or ceased to resist only
23because of another person's actions.
SB491,4,2424 (c) "Force" means any of the following:
SB491,4,2525 1. The use of a weapon.
SB491,5,2
12. The use of physical strength or violence that is likely to overcome, restrain,
2or injure a person.
SB491,5,43 3. Inflicting physical harm that is likely to coerce or compel submission by the
4victim.
SB491,5,85 (d) "Grievous bodily harm" means serious bodily injury, including fractured or
6dislocated bones, deep cuts, torn members of the body, serious damage to internal
7organs, or other severe bodily injuries. "Grievous bodily harm" does not include
8minor injuries such as a black eye or a bloody nose.
SB491,5,99 (e) "Sexual act" means any of the following:
SB491,5,1210 1. Contact between the penis and the vulva or anus or mouth, and for purposes
11of this subparagraph contact involving the penis occurs upon penetration, however
12slight.
SB491,5,1513 2. The penetration, however slight, of the vulva or anus or mouth, of another
14by any part of the body or by any object, with an intent to abuse, humiliate, harass,
15or degrade any person or to arouse or gratify the sexual desire of any person.
SB491,5,1616 (f) "Sexual contact" means any of the following:
SB491,5,1917 1. Touching, or causing another person to touch, either directly or through the
18clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person,
19with an intent to abuse, humiliate, or degrade any person.
SB491,5,2320 2. Any touching, or causing another person to touch, either directly or through
21the clothing, any body part of any person, if done with an intent to arouse or gratify
22the sexual desire of any person. Touching may be accomplished by any part of the
23body.
SB491,6,224 (g) "Threatening or placing that other person in fear" means a communication
25or action that is of sufficient consequence to cause a reasonable fear that

1noncompliance will result in the victim or another person being subjected to the
2wrongful action contemplated by the communication or action.
SB491,6,43 (h) "Unlawful force" means an act of force done without legal justification or
4excuse.
SB491,6,7 5(2) Any person subject to this chapter who commits a sexual act upon another
6person without consent by doing any of the following is guilty of rape and shall be
7punished as a court-martial may direct:
SB491,6,88 (a) Using unlawful force against that other person;
SB491,6,109 (b) Using force causing or likely to cause death or grievous bodily harm to any
10person.
SB491,6,1211 (c) Threatening or placing that other person in fear that any person will be
12subjected to death, grievous bodily harm, or kidnapping.
SB491,6,1313 (d) Rendering that other person unconscious.
SB491,6,1714 (e) Administering to that other person by force or threat of force, or without the
15knowledge or consent of that person, a drug, intoxicant, or other similar substance
16and thereby substantially impairing the ability of that other person to appraise or
17control his or her conduct.
SB491,6,19 18(3) Any person subject to this chapter who does any of the following is guilty
19of sexual assault and shall be punished as a court-martial may direct:
SB491,6,2120 (a) Commits a sexual act upon another person without consent by doing any
21of the following:
SB491,6,2222 1. Threatening or placing that other person in fear.
SB491,6,2323 2. Causing bodily harm to that other person.
SB491,6,2524 3. Making a fraudulent representation that the sexual act serves a professional
25purpose.
SB491,7,2
14. Inducing a belief by any artifice, pretense, or concealment that the person
2is another person.
SB491,7,53 (b) Commits a sexual act upon another person when the person knows or
4reasonably should know that the other person is asleep, unconscious, or otherwise
5unaware that the sexual act is occurring.
SB491,7,76 (c) Commits a sexual act upon another person when the other person is
7incapable of consenting to the sexual act due to any of the following:
SB491,7,98 1. Impairment by any drug, intoxicant, or other similar substance, and that
9condition is known or reasonably should be known by the person.
SB491,7,1110 2. A mental disease or defect or a physical disability, and that condition is
11known or reasonably should be known by the person.
SB491,7,15 12(4) Any person subject to this chapter who commits or causes sexual contact
13upon or by another person, if to do so would violate sub. (2) had the sexual contact
14been a sexual act, is guilty of aggravated sexual contact and shall be punished as a
15court-martial may direct.
SB491,7,19 16(5) Any person subject to this chapter who commits or causes sexual contact
17upon or by another person, if to do so would violate subsection (3) had the sexual
18contact been a sexual act, is guilty of abusive sexual contact and shall be punished
19as a court-martial may direct.
SB491,7,22 20(6) In a prosecution under this section, in proving that a person made a threat,
21it need not be proven that the person actually intended to carry out the threat or had
22the ability to carry out the threat.
SB491,7,25 23(7) An accused may raise any applicable defenses available under this chapter
24or the rules for court-martial. Marriage is not a defense for any conduct in issue in
25any prosecution under this section.
SB491,6
1Section 6. 322.1201 of the statutes is created to read:
SB491,8,2 2322.1201 Article 120a - Stalking.
SB491,8,3 3(1) In this section:
SB491,8,44 (a) "Course of conduct" means any of the following:
SB491,8,55 1. A repeated maintenance of visual or physical proximity to a specific person.
SB491,8,76 2. A repeated conveyance of oral threat, written threats, or threats implied by
7conduct, or a combination of such threats, directed at or toward a specific person.
SB491,8,118 (b) "Immediate family" means a spouse, parent, son, daughter, or sibling of the
9person, or a relative or intimate partner of the person who regularly resides in the
10household of the person or who within the six months preceding the commencement
11of a course of conduct regularly resided in the household of the person.
SB491,8,1312 (c) "Repeated," with respect to a course of conduct, means two or more occasions
13of such conduct.
SB491,8,15 14(2) Any person subject to this chapter who does all of the following is guilty of
15stalking and shall be punished as a court-martial may direct:
SB491,8,1816 (a) Wrongfully engages in a course of conduct directed at a specific person that
17would cause a reasonable person to fear death or bodily harm, including sexual
18assault, to himself or herself or a member of his or her immediate family.
SB491,8,2119 (b) Has knowledge or should have knowledge that the specific person will be
20placed in reasonable fear of death or bodily harm, including sexual assault, to himself
21or herself or a member of his or her immediate family.
SB491,8,2422 (c) Commits acts that induce reasonable fear in the specific person of death or
23bodily harm, including sexual assault, to himself or herself or a member of his or her
24immediate family.
SB491,7 25Section 7. 322.1202 of the statutes is created to read:
SB491,9,1
1322.1202 Article 120b - Rape and sexual assault of a child.
SB491,9,2 2(1) In this section:
SB491,9,33 (a) "Child" means any person who has not attained the age of 16 years.
SB491,9,44 (b) "Force" means any of the following:
SB491,9,55 1. The use of a weapon.
SB491,9,76 2. The use of physical strength or violence that is likely to overcome, restrain,
7or injure a child.
SB491,9,88 3. Inflicting physical harm.
SB491,9,109 4. In the case of a parent-child or similar relationship, the abuse of parental
10or similar authority.
SB491,9,1111 (c) "Lewd act" means any of the following:
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