LRB-1721/2
CMH:cjs:jf
2007 - 2008 LEGISLATURE
March 20, 2007 - Introduced by Joint Legislative Council. Referred to
Committee on Judiciary and Corrections.
SB103,1,7
1An Act to renumber and amend 939.616 (1), 948.21 (1) and 948.53 (2) (b);
to
2amend 301.45 (1d) (b), 301.48 (1) (e) 1., 939.616 (2), 939.616 (3), 939.74 (2) (a),
3948.025 (3), 948.03 (2) (a) and 948.08;
to repeal and recreate 939.74 (2d) (c),
4948.02 (1), 948.025 (1) and 948.025 (2); and
to create 301.48 (1) (e) 1m., 301.48
5(1) (e) 2. d., 939.616 (1g), 939.74 (2d) (d), 948.21 (1) (b), (c) and (d), 948.53 (2) (b)
62., 3. and 4. and 972.15 (1m) of the statutes;
relating to: crimes against
7children and providing penalties.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the Joint Legislative Council in
the bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Joint Legislative Council prefatory note: This bill was prepared for the Joint
Legislative Council's Special Committee on Review of Crimes Against Children.
Sex offender registry:
Current law requires sex offender registration following a conviction for a sex
offense, as that term is defined in s. 301.45 (1d) (b), stats. "Sex offense" is defined to
include all of the types of child enticement offenses under s. 948.07, stats.
Under s. 948.07 (5) and (6), stats., child enticement includes causing or attempting
to cause any child under 18 years old to go into any vehicle, building, room, or secluded
place, 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.
The bill removes these offenses from the list of offenses requiring mandatory sex
offender registration.
The bill reconciles
2005 Wisconsin Acts 430,
431, and
437. The Revisor of Statutes
has determined that provisions of these acts are mutually inconsistent.
2005 Wisconsin Act 430 ("Act 430"), commonly referred to as "Jessica's Law",
modified the offense of first-degree sexual assault of a child as follows:
• Whoever has sexual intercourse with a person who has not attained the age of
12 years is guilty of a Class B felony and is subject to a mandatory minimum term of
confinement in prison of 25 years.
• Whoever has sexual intercourse with a person who has not attained the age of
16 years by the use or threat of force or violence is guilty of a Class B felony and is subject
to a mandatory minimum term of confinement in prison of 25 years.
• Whoever has sexual contact with a person who has not attained the age of 16
years by the use or threat of force or violence if the actor is at least 18 years of age when
the sexual contact occurs is guilty of a Class B felony and is subject to a mandatory
minimum term of confinement in prison of 5 years.
• Whoever has sexual contact with a person who has not attained the age of 13
years is guilty of a Class B felony.
Act 430 also created a new definition of "sexual intercourse" for purposes of the
offense of first-degree sexual assault of a child. Under the act, "sexual intercourse"
means vulvar penetration as well as cunnilingus, fellatio, or anal intercourse between
persons or any intrusion of an 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.
Under prior law, "sexual intercourse" for purposes of the offense of first-degree sexual
assault of a child was the same as the general definition for other sexual assault crimes
and also included the intrusion, however slight, of any part of a person's body into the
genital or anal opening either by the defendant or upon the defendant's instruction.
2005 Wisconsin Act 431 ("Act 431"), effective July 1, 2007, requires global
positioning system (GPS) tracking for certain sex offenders, including persons found to
have committed first-degree sexual assault of a child as follows: (a) the person had sexual
intercourse with a person under 12 years of age; (b) the person had sexual intercourse by
use or threat of force or violence with a person under 16 years of age; or (c) the person had
sexual contact by use or threat of force or violence with a person under 16 years of age
and the person was 18 years of age or older at the time of the offense.
2005 Wisconsin Act 437 ("Act 437") modified the offense of first-degree sexual
assault of a child so that it is a Class B felony to have sexual contact or sexual intercourse
with a person who is under 13 years of age and it is a Class A felony to have sexual contact
or sexual intercourse with a person who is under 13 years of age if the sexual contact or
sexual intercourse results in great bodily harm.
The bill also includes the following substantive changes to these provisions, which
are described in the notes following the Sections:
• Under the bill, mandatory minimum terms of confinement in prison for
first-degree sexual assault of a child do not apply if the offender was under 18 years of
age at the time of the violation.
• The bill modifies the offense created by
2005 Wisconsin Act 437 to clarify that the
great bodily harm need not result from the sexual intercourse or contact.
• The bill eliminates the definition of "sexual intercourse" that applies only to the
offense of first-degree sexual assault of a child but maintains the definition for purposes
of GPS tracking requirements.
• The bill makes certain changes for purposes of consistency (e.g., requiring GPS
tracking for persons convicted of first-degree sexual assault of a child if the person caused
great bodily harm).
Statute of limitations for prosecution of sexual assault of a child:
Current law imposes time limits for commencing prosecution for most crimes. The
2003 Wisconsin statutes required that prosecution for a sexual assault of a child be
commenced before the victim reaches the age of 45. However, also under the 2003
statutes, if the state collected deoxyribonucleic acid (DNA) evidence in connection with
a sexual assault of a child before the time period for commencing prosecution of the sexual
assault expired (e.g., before the victim reached the age of 45) and did not match the DNA
evidence with an identified person until after the time period expired, the state was
permitted to commence prosecution of the person who was the source of the DNA for the
sexual assault within one year after making the match.
The statutes were affected by two Wisconsin acts in the 2005-06 legislative
session.
2005 Act 60 provides that if the state collects DNA evidence in connection with a
sexual assault of a child and does not match the DNA evidence with an identified person,
as described above, the one-year extension to the time period for commencing
prosecution for the sexual assault applies also to prosecution for a crime that is related
to the sexual assault.
2005 Act 276 eliminates all time limits for commencing prosecution for a
first-degree sexual assault of a child.
This bill eliminates the time limits for commencing a prosecution of first-degree
sexual assault of a child and the various offenses of engaging in repeated acts of
first-degree sexual assault of a child.
The bill 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.
Finally, the bill 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.
Offenses that may not be charged with repeated acts of sexual assault of the same
child:
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, sexual assault of a child, sexual exploitation
of a child, incest with a child, child enticement, use of a computer to facilitate a child sex
crime, soliciting a child for prostitution, exposing genital or pubic area, exposing a child
to harmful material or harmful descriptions or narrations, or possession of child
pornography.
The bill 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.
Physical abuse of a child:
Under current law, it is a Class E felony to intentionally cause great bodily harm
to a child. This bill changes this offense to a Class C felony.
Soliciting a child for prostitution:
Under current law, whoever intentionally solicits or causes any child to practice
prostitution is guilty of a Class D felony. The bill modifies the offense so that it prohibits
soliciting or causing any child to engage in an act of prostitution. As under current law,
it is also a violation to establish a child in a place of prostitution under the bill.
Criminal neglect of a child:
Under current law, 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 Class A misdemeanor or, if death is a consequence, a Class D felony.
The bill creates offenses for cases in which bodily harm is a consequence of neglect
and in which great bodily harm is a consequence of neglect. Under the bill, the offense
involving bodily harm is a Class H felony and the offense involving great bodily harm is
a Class F felony.
Also under current law, a person responsible for a child's welfare while the child
is being transported in a child care vehicle may not leave the child unattended at any time
from the time the child is placed in the care of that person to the time the child is placed
in the care of another person responsible for the child's welfare. A person who violates
this provision is guilty of a Class A misdemeanor or, if death is a consequence, a Class G
felony.
The bill 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.
Under the bill, the offense involving bodily harm is a Class I felony and the offense
involving great bodily harm is a Class H felony.
Presentence investigation:
