948.01 Annotation
Instructions were proper that told the jury that “lewd" under sub. (7) (e), when applied to photographs, is not mere nudity but requires the display of the genital area and sexual suggestiveness as determined by the jury in the use of common sense. State v. Petrone,
161 Wis. 2d 530,
468 N.W.2d 676 (1991).
948.01 Annotation
When a defendant allows sexual contact initiated by a child, the defendant is guilty of intentional touching as defined in sub. (5). State v. Traylor,
170 Wis. 2d 393,
489 N.W.2d 626 (Ct. App. 1992).
948.01 Annotation
The definition of “parent" in sub. (3) is all-inclusive; a defendant whose paternity was admitted but had never been adjudged was a “parent." State v. Evans,
171 Wis. 2d 471,
492 N.W.2d 141 (1992).
948.01 Annotation
A live-in boyfriend can be a person responsible for the welfare of a child if he was used by the child's legal guardian as a caretaker for the child. State v. Sostre,
198 Wis. 2d 409,
542 N.W.2d 774 (1996),
94-0778.
948.01 Annotation
The phrase “by the defendant or upon the defendant's instruction" in sub. (6) modifies the entire list of acts and establishes that for intercourse to occur the defendant either had to perform one of the actions on the victim or instruct the victim to perform one of the actions on himself or herself. State v. Olson,
2000 WI App 158,
238 Wis. 2d 74,
616 N.W.2d 144,
99-2851.
948.01 Annotation
A person under 18 years of age employed by his or her parent to care for a child for whom the parent was legally responsible can be a person responsible for the welfare of the child under sub. (3). State v. Hughes,
2005 WI App 155,
285 Wis. 2d 388,
702 N.W.2d 87,
04-2122.
948.01 Annotation
Petrone established guidelines for defining “lewd" and “sexually explicit." It did not require that a child be “unclothed" in order for a picture to be lewd. Instead, the visible display of the child's pubic area and posing the child as a sex object with an unnatural or unusual focus on the child's genitalia should inform the common sense determination by the trier of fact regarding the pornographic nature of the image. It follows that when a child's pubic area is visibly displayed, the lack of a full opaque covering is a proper consideration that should inform the common sense determination by the trier of fact. State v. Lala,
2009 WI App 137,
321 Wis. 2d 292,
773 N.W.2d 218,
08-2893.
948.015
948.015
Other offenses against children. In addition to the offenses under this chapter, offenses against children include, but are not limited to, the following:
948.015(3)
(3) Section
125.07, relating to furnishing alcohol beverages to underage persons.
948.015(5)
(5) Section
254.12, relating to applying lead-bearing paints or selling or transferring a fixture or other object containing a lead-bearing paint.
948.015(6)
(6) Sections
961.01 (6) and
(9) and
961.49, relating to delivering and distributing controlled substances or controlled substance analogs to children.
948.015(8)
(8) Section
961.573 (3) (b) 2., relating to the use or possession of methamphetamine-related drug paraphernalia in the presence of a child who is 14 years of age or younger.
948.02
948.02
Sexual assault of a child. 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 Annotation
Relevant evidence in child sexual assault cases is discussed. In Interest of Michael R.B.
175 Wis. 2d 713,
499 N.W.2d 641 (1993).
948.02 Annotation
Limits relating to expert testimony regarding child sex abuse victims is discussed. 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 the 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 510,
573 N.W.2d 210 (Ct. App. 1997).
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 2nd 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 418,
03-1493.
948.02 Annotation
The consent of the child in a sub. (2) violation is not relevant. Yet if the defendant asserts that she did not consent to the intercourse and that she was raped by the child, the issue of her consent becomes paramount. If the defendant was raped, the act of having sexual intercourse with a 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
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 2 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 AnnotationThe 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 (2005).
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(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 Annotation
Convicting the defendant on 3 counts of first-degree sexual assault of a child and one count of repeated acts of sexual assault of a child when all 4 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)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)(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.
