940.04(2)
(2) Any person, other than the mother, who does either of the following may be imprisoned not more than 15 years:
940.04(2)(a)
(a) Intentionally destroys the life of an unborn quick child; or
940.04(2)(b)
(b) Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother's death was committed.
940.04(3)
(3) Any pregnant woman who intentionally destroys the life of her unborn child or who consents to such destruction by another may be fined not more than $200 or imprisoned not more than 6 months or both.
940.04(4)
(4) Any pregnant woman who intentionally destroys the life of her unborn quick child or who consents to such destruction by another may be imprisoned not more than 2 years.
940.04(5)
(5) This section does not apply to a therapeutic abortion which:
940.04(5)(b)
(b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and
940.04(5)(c)
(c) Unless an emergency prevents, is performed in a licensed maternity hospital.
940.04(6)
(6) In this section "unborn child" means a human being from the time of conception until it is born alive.
940.04 Annotation
Aborting child against father's wishes does not constitute intentional infliction of emotional distress. Przybyla v. Przybyla, 87 W (2d) 441, 275 NW (2d) 112 (Ct. App. 1978).
940.04 Annotation
Sub. (2) (a) proscribes feticide. It does not apply to consensual abortions. It was not impliedly repealed by the adoption of s. 940.15 in response to
Roe v. Wade. State v. Black, 188 W (2d) 639, 526 NW (2d) 132 (1994).
940.04 Annotation
This section cited as similar to Texas statute which was held to violate the due process clause of the 14th amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Roe v. Wade, 410 US 113.
940.04 Annotation
State may prohibit first trimester abortions by nonphysicians. Connecticut v. Menillo, 423 US 9.
940.04 Annotation
Viability of unborn child discussed. Colautti v. Franklin, 439 US 379 (1979).
940.04 Annotation
Any law requiring parental consent for minor to obtain abortion must ensure that parent does not have absolute, and possibly arbitrary, veto. Bellotti v. Baird, 443 US 622 (1979).
940.04 Annotation
Poverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to legitimate governmental objective of protecting potential life. Harris v. McRae, 448 US 297 (1980).
940.04 Annotation
Abortion issues discussed. Akron v. Akron Center for Reproductive Health, 462 US 416 (1983).
940.04 Annotation
Abortion issues discussed. Planned Parenthood Assn. v. Ashcraft, 462 US 476 (1983).
940.04 Annotation
Abortion issues discussed. Simopoulas v. Virginia, 462 US 506 (1983).
940.04 Annotation
Wisconsin's abortion statute (940.04, Stats. 1969) is unconstitutional as applied to the abortion of an embryo which has not quickened. Babbitz v. McCann, 310 F Supp. 293.
940.04 Annotation
Where U.S. supreme court decisions clearly made Wisconsin antiabortion statute unenforceable, issue in physician's action for injunctive relief against enforcement became mooted, and it no longer presented case or controversy over which court could have jurisdiction. Larkin v. McCann, 368 F Supp. 1352.
940.04 Annotation
State regulation of abortion. 1970 WLR 933.
940.05
940.05
Second-degree intentional homicide. 940.05(1)(1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class B felony if:
940.05(1)(a)
(a) In prosecutions under
s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in
s. 940.01 (2) did not exist as required by
s. 940.01 (3); or
940.05(1)(b)
(b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in
s. 940.01 (2) did not exist. By charging under this section, the state so concedes.
940.05(2)
(2) In prosecutions under
sub. (1), it is sufficient to allege and prove that the defendant caused the death of another human being with intent to kill that person or another.
940.05(2g)
(2g) Whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class B felony if:
940.05(2g)(a)
(a) In prosecutions under
s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in
s. 940.01 (2) did not exist as required by
s. 940.01 (3); or
940.05(2g)(b)
(b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in
s. 940.01 (2) did not exist. By charging under this section, the state so concedes.
940.05(2h)
(2h) In prosecutions under
sub. (2g), it is sufficient to allege and prove that the defendant caused the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another.
940.05(3)
(3) The mitigating circumstances specified in
s. 940.01 (2) are not defenses to prosecution for this offense.
940.05 History
History: 1987 a. 399;
1997 a. 295.
940.05 Note
Judicial Council Note, 1988: Second-degree intentional homicide is analogous to the prior offense of manslaughter. The penalty is increased and the elements clarified in order to encourage charging under this section in appropriate cases.
940.05 Annotation
Adequate provocation, unnecessary defensive force, prevention of felony, coercion and necessity, which are affirmative defenses to first-degree intentional homicide but not this offense, mitigate that offense to this. When this offense is charged, the state's inability to disprove their existence is conceded. Their existence need not, however, be pleaded or proved by the state in order to sustain a finding of guilty.
940.05 Annotation
When first-degree intentional homicide is charged, this lesser offense must be submitted upon request if the evidence, reasonably viewed, could support the jury's finding that the state has not borne its burden of persuasion under s. 940.01 (3). State v. Felton,
110 Wis. 2d 465, 508 (1983). [Bill 191-S]
940.05 Annotation
See note to 940.01 citing State v. Block, 170 W (2d) 676, 489 NW (2d) 715 (Ct. App. 1992).
940.05 Annotation
See note to 940.01, citing 1989 WLR 1323 (1989).
940.06
940.06
Second-degree reckless homicide. 940.06(1)
(1) Whoever recklessly causes the death of another human being is guilty of a Class C felony.
940.06(2)
(2) Whoever recklessly causes the death of an unborn child is guilty of a Class C felony.
940.06 History
History: 1987 a. 399;
1997 a. 295.
940.06 Note
Judicial Council Note, 1988: Second-degree reckless homicide is analogous to the prior offense of homicide by reckless conduct. The revised statute clearly requires proof of a subjective mental state, i.e., criminal recklessness. See s. 939.24 and the NOTE thereto. [Bill 191-S]
940.06 Annotation
Second degree reckless homicide is not a lesser included offense of homicide by intoxicated use of a motor vehicle. State v. Lechner, 217 W (2d) 392, 576 NW (2d) 912 (1998).
940.06 Annotation
See note to 940.01, citing 1989 WLR 1323 (1989).
940.07
940.07
Homicide resulting from negligent control of vicious animal. Whoever knowing the vicious propensities of any animal intentionally allows it to go at large or keeps it without ordinary care, if such animal, while so at large or not confined, kills any human being who has taken all the precautions which the circumstances may permit to avoid such animal, is guilty of a Class C felony.
940.07 History
History: 1977 c. 173.
940.08
940.08
Homicide by negligent handling of dangerous weapon, explosives or fire. 940.08(1)
(1) Whoever causes the death of another human being by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class D felony.
940.08(2)
(2) Whoever causes the death of an unborn child by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class D felony.
940.08 Note
Judicial Council Note, 1988: The definition of the offense is broadened to include highly negligent handling of fire, explosives and dangerous weapons in addition to firearm, airgun, knife or bow and arrow. See s. 939.22 (10). [Bill 191-S]
940.08 Annotation
High degree of negligence is determined by objective "reasonable person" test; subjective intent is not an element of the offense. Victim's contributory negligence is no defense. Hart v. State, 75 W (2d) 371, 249 NW (2d) 810.
940.09
940.09
Homicide by intoxicated use of vehicle or firearm. 940.09(1)(1) Any person who does any of the following is guilty of a Class B felony:
940.09(1)(a)
(a) Causes the death of another by the operation or handling of a vehicle while under the influence of an intoxicant.
940.09(1)(b)
(b) Causes the death of another by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in
s. 340.01 (46m).
940.09(1)(bm)
(bm) Causes the death of another by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.1.
940.09(1)(c)
(c) Causes the death of an unborn child by the operation or handling of a vehicle while under the influence of an intoxicant.
940.09(1)(d)
(d) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in
s. 340.01 (46m).
940.09(1)(e)
(e) Causes the death of an unborn child by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.1.
940.09(1b)
(1b) If there was a minor passenger under 16 years of age or an unborn child in the motor vehicle at the time of the violation that gave rise to the conviction under
sub. (1), any applicable maximum fine or imprisonment specified for the conviction is doubled.
940.09(1d)
(1d) If the person who committed an offense under
sub. (1) (a),
(b),
(c) or
(d) has 2 or more prior convictions, suspensions or revocations, as counted under
s. 343.307 (1), the procedure under
s. 346.65 (6) may be followed regarding the immobilization or seizure and forfeiture of a motor vehicle owned by the person who committed the offense or the equipping of a motor vehicle owned by the person with an ignition interlock device.
940.09 Note
NOTE: Sub. (1d) is shown as affected by two acts of the 1997 legislature and as merged by the revisor under s. 13.93 (2) (c).
940.09(1g)
(1g) Any person who does any of the following is guilty of a Class D felony:
940.09(1g)(a)
(a) Causes the death of another by the operation or handling of a firearm or airgun while under the influence of an intoxicant.
940.09(1g)(b)
(b) Causes the death of another by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.1 or more.
940.09(1g)(c)
(c) Causes the death of an unborn child by the operation or handling of a firearm or airgun while under the influence of an intoxicant.
940.09(1g)(d)
(d) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.1 or more.
940.09(1m)
(1m) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of
sub. (1) (a) or
(b) or both,
sub. (1) (a) or
(bm) or both,
sub. (1) (c) or
(d) or both,
sub. (1) (c) or
(e) or both,
sub. (1g) (a) or
(b) or both or
sub. (1g) (c) or
(d) or both for acts arising out of the same incident or occurrence. If the person is charged with violating both
sub. (1) (a) and
(b), both
sub. (1) (a) and
(bm), both
sub. (1) (c) and
(d), both
sub. (1) (c) and
(e), both
sub. (1g) (a) and
(b) or both
sub. (1g) (c) and
(d) in the information, the crimes shall be joined under
s. 971.12. If the person is found guilty of both
sub. (1) (a) and
(b), both
sub. (1) (a) and
(bm), both
sub. (1) (c) and
(d), both
sub. (1) (c) and
(e), both
sub. (1g) (a) and
(b) or both
sub. (1g) (c) and
(d) for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under
s. 23.33 (13) (b) 2. and
3., under
s. 30.80 (6) (a) 2. and
3., under
s. 343.307 (1) or under
s. 350.11 (3) (a) 2. and
3. Subsection (1) (a),
(b),
(bm),
(c),
(d) and
(e), and
sub. (1g) (a),
(b),
(c) and
(d), each require proof of a fact for conviction which the other does not require.
940.09(2)
(2) The defendant has a defense if he or she proves by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant or did not have an alcohol concentration described under
sub. (1) (b),
(bm),
(d) or
(e) or
(1g) (b) or
(d).
940.09 Annotation
See note to art. I, sec. 11, citing State v. Jenkins, 80 W (2d) 426, 259 NW (2d) 109.
940.09 Annotation
See note to art. I, sec. 11, citing State v. Bentley, 92 W (2d) 860, 286 NW (2d) 153 (Ct. App. 1979).
940.09 Annotation
See note to art. I, sec. 8, citing State v. Rabe, 96 W (2d) 48, 291 NW (2d) 809 (1980).
940.09 Annotation
Because driving while intoxicated is inherently dangerous, state need not prove causal connection between driver's intoxication and victim's death. Sub. (2) does not violate right against self-incrimination. State v. Caibaiosai, 122 W (2d) 587, 363 NW (2d) 574 (1985).
940.09 Annotation
Where state impounded vehicle but released it to scrap dealer before defendant's expert could examine it, charge was properly dismissed for destruction of exculpatory evidence. State v. Hahn, 132 W (2d) 351, 392 NW (2d) 464 (Ct. App. 1986).
940.09 Annotation
A vehicle under this section is defined in s. 939.44 (2) and includes a tractor. State v. Sohn, 193 W (2d) 346, 535 NW (2d) 1 (Ct. App. 1995).
940.09 Annotation
Sub. (2) does not violate the constitutional guarantee of equal protection. State v. Lohmeier, 196 W (2d) 432, 538 NW (2d) 821 (Ct. App. 1995).
940.09 Annotation
The defense under sub. (2) does not require an intervening cause; a victim's conduct can be the basis of the defense. The s. 939.14 rule that contributory negligence is not a defense to a crime does not prevent considering the victim's negligence in relation to causation. State v. Lohmeier, 205 W (2d) 182, 556 NW (2d) 90 (1996).
940.09 Annotation
Second degree reckless homicide is not a lesser included offense of homicide by intoxicated use of a motor vehicle. State v. Lechner, 217 W (2d) 392, 576 NW (2d) 912 (1998).
940.09 Annotation
This statute doesn't violate due process. Caibaiosai v. Barrington, 643 F Supp. 1007 (W. D. Wis. 1986).
940.09 Annotation
Homicide By Intoxicated Use Statute. Sines. Wis. Law. April, 1995.
940.10
940.10
Homicide by negligent operation of vehicle. 940.10(1)(1) Whoever causes the death of another human being by the negligent operation or handling of a vehicle is guilty of a Class E felony.
940.10(2)
(2) Whoever causes the death of an unborn child by the negligent operation or handling of a vehicle is guilty of a Class E felony.
