LRB-0361/2
BF:skg:aj
1995 - 1996 LEGISLATURE
March 8, 1995 - Introduced by Senators Petak, Fitzgerald, Farrow, Drzewiecki,
Buettner and Schultz, cosponsored by Representatives Freese, Wood,
Grobschmidt, Walker, Silbaugh, Ladwig, Porter, Schneiders, Musser, Ott,
Harsdorf, Lehman, Duff, Nass, Urban, Goetsch, Brandemuehl, Ainsworth,
Hahn, Seratti, Ward, Dobyns, Ziegelbauer, Lorge, Johnsrud and Otte.
Referred to Committee on Judiciary.
SB100,1,10
1An Act to renumber 940.01 (1), 940.06, 940.08, 940.10, 940.23 (1), 940.23 (2) and
2940.24;
to amend 302.11 (1g) (a) 2., 343.31 (3) (c), 346.65 (6) (a) 1., 346.65 (6)
3(a) 2., 346.65 (6) (d), 939.22 (21) (d), 939.24 (1), 939.25 (1), 939.32 (1) (intro.),
4939.62 (2m) (a) 2., 940.01 (1) (title), 940.05 (2), 940.09 (1d), 940.09 (1m), 940.09
5(2), 940.25 (1d), 940.25 (1m), 940.25 (2), 941.38 (1) (b) 4., 969.035 (1), 969.08 (10)
6(b), 973.0135 (1) (b) 2. and 980.01 (6) (b); and
to create 939.75, 940.01 (1) (b),
7940.02 (1m), 940.05 (2g), 940.05 (2h), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e),
8940.09 (1g) (c) and (d), 940.10 (2), 940.195, 940.23 (1) (b), 940.23 (2) (b), 940.24
9(2) and 940.25 (1) (c) to (e) of the statutes;
relating to: causing harm or death
10to an unborn child and providing penalties.
Analysis by the Legislative Reference Bureau
Under current law, there are various penalties for homicides and other crimes
against life and bodily security. These crimes usually apply to offenses committed
against a human being after he or she has been born alive. This bill creates a similar
series of crimes providing penalties, based on current law, for persons who cause
death, great bodily harm or harm to an unborn child. The following chart shows the
maximum penalties for persons convicted of the crimes involved:
-
See PDF for table ![PDF](https://docs.legis.wisconsin.gov/assets/image/file_acrobat.gif)
The bill provides various exceptions to these crimes against unborn children.
The crimes do not apply to any of the following:
1. An act that causes the death of an unborn child during an induced abortion.
2. An act that follows the usual and customary standards of medical practice
during diagnostic testing or therapeutic treatment performed by, or under the
supervision of, a licensed physician.
3. An act by the pregnant woman toward her unborn child.
4. The prescription by a physician or the use by a woman of any medicine, drug
or device for birth control or pregnancy prevention.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB100, s. 1
1Section
1. 302.11 (1g) (a) 2. of the statutes is amended to read:
SB100,3,52
302.11
(1g) (a) 2. Any felony under s. 940.02, 940.03, 940.05, 940.09 (1), 940.19
3(5),
940.195 (5), 940.21, 940.225 (1) or (2), 940.305 (2), 940.31 (1) or (2) (b), 943.02,
4943.10 (2), 943.23 (1g) or (1m), 943.32 (2), 946.43, 948.02 (1) or (2), 948.025, 948.03
5(2) (a) or (c), 948.05, 948.06, 948.07, 948.08, 948.30 (2), 948.35 (1) (b) or (c) or 948.36.
SB100, s. 2
6Section
2. 343.31 (3) (c) of the statutes is amended to read:
SB100,3,97
343.31
(3) (c) Any person convicted under s. 940.09 of causing the death of
8another
or an unborn child by the operation or handling of a motor vehicle shall have
9his or her operating privilege revoked for 5 years.
SB100, s. 3
10Section
3. 346.65 (6) (a) 1. of the statutes is amended to read:
SB100,4,211
346.65
(6) (a) 1. Except as provided in this paragraph, the court may order a
12law enforcement officer to seize a motor vehicle, or, if the motor vehicle is not ordered
13seized, shall order a law enforcement officer to equip the motor vehicle with an
14ignition interlock device or immobilize any motor vehicle owned by the person whose
15operating privilege is revoked under s. 343.305 (10) or who committed a violation of
16s. 346.63 (1) (a) or (b) or (2) (a) 1. or 2., 940.09 (1) (a)
or, (b)
, (c) or (d) or 940.25 (1) (a)
17or, (b)
, (c) or (d) if the person whose operating privilege is revoked under s. 343.305
18(10) or who is convicted of the violation has 2 prior suspensions, revocations or
19convictions within a 10-year period that would be counted under s. 343.307 (1). The
20court shall not order a motor vehicle equipped with an ignition interlock device or
1immobilized if that would result in undue hardship or extreme inconvenience or
2would endanger the health and safety of a person.
SB100, s. 4
3Section
4. 346.65 (6) (a) 2. of the statutes is amended to read:
SB100,4,104
346.65
(6) (a) 2. The court shall order a law enforcement officer to seize a motor
5vehicle owned by a person whose operating privilege is revoked under s. 343.305 (10)
6or who commits a violation of s. 346.63 (1) (a) or (b) or (2) (a) 1. or 2., 940.09 (1) (a)
7or, (b)
, (c) or (d) or 940.25 (1) (a)
or, (b)
, (c) or (d) if the person whose operating privilege
8is revoked under s. 343.305 (10) or who is convicted of the violation has 3 or more prior
9suspensions, revocations or convictions within a 10-year period that would be
10counted under s. 343.307 (1).
SB100, s. 5
11Section
5. 346.65 (6) (d) of the statutes is amended to read:
SB100,5,212
346.65
(6) (d) At the hearing set under par. (c), the state has the burden of
13proving to a reasonable certainty by the greater weight of the credible evidence that
14the motor vehicle is a motor vehicle owned by a person who committed a violation of
15s. 346.63 (1) (a) or (b) or (2) (a) 1. or 2., 940.09 (1) (a)
or, (b)
, (c) or (d) or 940.25 (1) (a)
16or, (b)
, (c) or (d) and, if the seizure is under par. (a) 1., that the person had 2 prior
17convictions, suspensions or revocations within a 10-year period as counted under s.
18343.307 (1) or, if the seizure is under par. (a) 2., 3 or more prior convictions,
19suspensions or revocations within a 10-year period as counted under s. 343.307 (1).
20If the owner of the motor vehicle proves by a preponderance of the evidence that he
21or she was not convicted of a violation of s. 346.63 (1) (a) or (b) or (2) (a) 1. or 2., 940.09
22(1) (a)
or, (b)
, (c) or (d) or 940.25 (1) (a)
or, (b)
, (c) or (d), or, if the seizure is under par.
23(a) 1., that he or she did not have 2 prior convictions, suspensions or revocations
24within a 10-year period as counted under s. 343.307 (1) or, if the seizure is under par.
25(a) 2., 3 or more prior convictions, suspensions or revocations within a 10-year period
1as counted under s. 343.307 (1), the motor vehicle shall be returned to the owner upon
2the payment of storage costs.
SB100, s. 6
3Section
6. 939.22 (21) (d) of the statutes is amended to read:
SB100,5,54
939.22
(21) (d) Battery
, substantial battery or aggravated battery, as
5prohibited in s. 940.19
or 940.195.
SB100, s. 7
6Section
7. 939.24 (1) of the statutes is amended to read:
SB100,5,137
939.24
(1) In this section, "criminal recklessness" means that the actor creates
8an unreasonable and substantial risk of death or great bodily harm to another
9human being and the actor is aware of that risk
, except that for purposes of ss. 940.02
10(1m), 940.06 (2) and 940.23 (1) (b) and (2) (b), "criminal recklessness" means that the
11actor creates an unreasonable and substantial risk of death or great bodily harm to
12an unborn child, to the woman who is pregnant with that unborn child or to another
13and the actor is aware of that risk.
SB100, s. 8
14Section
8. 939.25 (1) of the statutes is amended to read:
SB100,5,2215
939.25
(1) In this section, "criminal negligence" means ordinary negligence to
16a high degree, consisting of conduct
which that the actor should realize creates a
17substantial and unreasonable risk of death or great bodily harm to another
, except
18that for purposes of ss. 940.08 (2), 940.10 (2) and 940.24 (2), "criminal negligence"
19means ordinary negligence to a high degree, consisting of conduct that the actor
20should realize creates a substantial and unreasonable risk of death or great bodily
21harm to an unborn child, to the woman who is pregnant with that unborn child or
22to another.
SB100, s. 9
23Section
9. 939.32 (1) (intro.) of the statutes is amended to read:
SB100,6,224
939.32
(1) (intro.) Whoever attempts to commit a felony or a
battery as defined
25by crime specified in s. 940.19
or theft as defined by s., 940.195 or 943.20 may be fined
1or imprisoned or both not to exceed one-half the maximum penalty for the completed
2crime; except:
SB100, s. 10
3Section
10. 939.62 (2m) (a) 2. of the statutes is amended to read:
SB100,6,84
939.62
(2m) (a) 2. Any felony under s. 940.01, 940.02, 940.03, 940.05, 940.09
5(1), 940.19 (5),
940.195 (5), 940.21, 940.225 (1) or (2), 940.305, 940.31, 941.327 (2) (b)
64., 943.02, 943.10 (2), 943.23 (1g), (1m) or (1r), 943.32 (2), 946.43, 948.02 (1) or (2),
7948.025, 948.03 (2) (a) or (c), 948.05, 948.06, 948.07, 948.08, 948.30 (2), 948.35 (1) (b)
8or (c) or 948.36.
SB100, s. 11
9Section
11. 939.75 of the statutes is created to read:
SB100,6,14
10939.75 Death or harm to an unborn child. (1) In this section and ss. 939.24
11(1), 939.25 (1), 940.01 (1) (b), 940.02 (1m), 940.05 (2g) and (2h), 940.06 (2), 940.08 (2),
12940.09 (1) (c) to (e) and (1g) (c) and (d), 940.10 (2), 940.195, 940.23 (1) (b) and (2) (b),
13940.24 (2) and 940.25 (1) (c) to (e), "unborn child" means any individual of the human
14species from fertilization until birth.
SB100,6,19
15(2) (a) In this subsection, "induced abortion" means the use of any instrument,
16medicine, drug or other substance or device in a medical procedure with the intent
17to terminate the pregnancy of a woman and with an intent other than to increase the
18probability of a live birth, to preserve the life or health of the infant after live birth
19or to remove a dead fetus.
SB100,6,2220
(b) Sections 940.01 (1) (b), 940.02 (1m), 940.05 (2g) and (2h), 940.06 (2), 940.08
21(2), 940.09 (1) (c) to (e) and (1g) (c) and (d), 940.10 (2), 940.195, 940.23 (1) (b) and (2)
22(b), 940.24 (2) and 940.25 (1) (c) to (e) do not apply to any of the following:
SB100,6,2423
1. An act that causes the death of an unborn child if the act was committed
24during any induced abortion, whether lawful or unlawful.
SB100,7,3
12. An act that is committed in accordance with the usual and customary
2standards of medical practice during diagnostic testing or therapeutic treatment
3performed by, or under the supervision of, a physician licensed under ch. 448.
SB100,7,54
3. An act by a woman who is pregnant with an unborn child that results in the
5death of or great bodily harm or bodily harm to that unborn child.
SB100,7,76
4. The prescription by a physician or the use by a woman of any medicine, drug
7or device that is used as a method of birth control or is intended to prevent pregnancy.
SB100,7,13
8(3) When the existence of an exception under sub. (2) has been placed in issue
9by the trial evidence, the state must prove beyond a reasonable doubt that the facts
10constituting the exception do not exist in order to sustain a finding of guilt under s.
11940.01 (1) (b), 940.02 (1m), 940.05 (2g), 940.06 (2), 940.08 (2), 940.09 (1) (c) to (e) or
12(1g) (c) or (d), 940.10 (2), 940.195, 940.23 (1) (b) or (2) (b), 940.24 (2) or 940.25 (1) (c)
13to (e).
SB100, s. 12
14Section
12. 940.01 (1) (title) of the statutes is amended to read:
SB100,7,1515
940.01
(1) (title)
Offense Offenses.
SB100, s. 13
16Section
13. 940.01 (1) of the statutes is renumbered 940.01 (1) (a).
SB100, s. 14
17Section
14. 940.01 (1) (b) of the statutes is created to read:
SB100,7,2018
940.01
(1) (b) Except as provided in sub. (2), whoever causes the death of an
19unborn child with intent to kill that unborn child, kill the woman who is pregnant
20with that unborn child or kill another is guilty of a Class A felony.
SB100, s. 15
21Section
15. 940.02 (1m) of the statutes is created to read:
SB100,7,2422
940.02
(1m) Whoever recklessly causes the death of an unborn child under
23circumstances that show utter disregard for the life of that unborn child, the woman
24who is pregnant with that unborn child or another is guilty of a Class B felony.