Amendment ASA1-AB51

LRBs0047/1

MGD:jld:cph

2003 - 2004 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2003 ASSEMBLY BILL 51

March 26, 2003 - Offered by Committee on Corrections and the Courts.

AB51-ASA1,1,6 An Act to amend 940.225 (4) (intro.); and to create 940.225 (2) (h), 940.225 (2) (i), 940.225 (5) (ab) and 940.225 (5) (ad) of the statutes; relating to: sexual activity involving a person working at a jail or prison or a community corrections staff member and an inmate or a person otherwise in the custody or under the supervision of the Department of Corrections and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law a person who has sexual contact or sexual intercourse with another person without the other person's consent commits the crime of sexual assault. In addition, current law prohibits a person from having sexual contact or sexual intercourse with another person under certain circumstances regardless of whether the other person has consented. Under those provisions a person commits the crime of sexual assault when he or she has sexual contact or sexual intercourse with any of the following: 1) a person who is under the influence of drugs or drugs and alcohol or who suffers from a mental illness, so as to preclude him or her from effectively consenting; 2) a person who is unconscious; 3) a patient or resident in an adult family home, a community-based residential facility, or a health or mental health treatment facility that employs the other person; or 4) a person under the age of 16. A person convicted of sexual assault under one of those provisions is guilty of a Class C felony, which is punishable by a fine of not more than $100,000, a term of imprisonment (consisting of a term of confinement in state prison followed by a term of extended supervision) of up to 40 years, or both.

This bill prohibits a person who works at a correctional institution (which, under the bill, means a juvenile detention facility, a juvenile correctional facility, a state prison, a county or municipal jail or house of corrections, a Huber facility, a lockup facility, or a county work camp) from having sexual contact or sexual intercourse with a person who is confined in a correctional institution. The bill also prohibits a probation, parole, or extended supervision agent from having sexual contact or sexual intercourse with an individual who is on probation, parole, or extended supervision if either: 1) the agent supervises the individual, either directly or through a subordinate; or 2) the agent has influenced or has attempted to influence another agent's supervision of the individual. A person who violates this prohibition is guilty of a Class C felony.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB51-ASA1, s. 1 Section 1. 940.225 (2) (h) of the statutes is created to read:

AB51-ASA1,2,3 940.225 (2) (h) Has sexual contact or sexual intercourse with an individual who is confined in a correctional institution if the actor is a correctional staff member.

AB51-ASA1, s. 2 Section 2. 940.225 (2) (i) of the statutes is created to read:

AB51-ASA1,2,10 940.225 (2) (i) Has sexual contact or sexual intercourse with an individual who is on probation, parole, or extended supervision if the actor is a probation, parole, or extended supervision agent who supervises the individual, either directly or through a subordinate, in his or her capacity as a probation, parole, or extended supervision agent or who has influenced or has attempted to influence another probation, parole, or extended supervision agent's supervision of the individual.

AB51-ASA1, s. 3 Section 3. 940.225 (4) (intro.) of the statutes is amended to read:

AB51-ASA1,3,4 940.225 (4) Consent. (intro.) "Consent", as used in this section, means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact. Consent is not an issue in alleged violations of sub. (2) (c), (cm), (d) and, (g), (h), and (i). The following persons are presumed incapable of consent but the presumption may be rebutted by competent evidence, subject to the provisions of s. 972.11 (2):

AB51-ASA1, s. 4 Section 4. 940.225 (5) (ab) of the statutes is created to read:

AB51-ASA1,3,8 940.225 (5) (ab) "Correctional institution" means a jail or correctional facility, as defined in s. 961.01 (12m), a secured correctional facility, as defined in s. 938.02 (15m), or a secure detention facility, as defined in s. 938.02 (16).

AB51-ASA1, s. 5 Section 5. 940.225 (5) (ad) of the statutes is created to read:

AB51-ASA1,3,11 940.225 (5) (ad) "Correctional staff member" means an individual who works at a correctional institution, including a volunteer.

AB51-ASA1,3,12 (End)