940.225 Annotation
Failure to resist is not consent under (4). State v. Clark, 87 W (2d) 804, 275 NW (2d) 715 (1979).
940.225 Annotation
Injury by conduct regardless of life is not a lesser-included crime of first-degree sexual assault. Hagenkord v. State, 94 W (2d) 250, 287 NW (2d) 834 (Ct. App. 1979).
940.225 Annotation
Multiplicitous sexual assault charges discussed. State v. Eisch, 96 W (2d) 25, 291 NW (2d) 800 (1980).
940.225 Annotation
Trial court did not err in denying accused's motions to compel psychiatric examination of victim and to discover victim's past addresses. State v. Lederer, 99 W (2d) 430, 299 NW (2d) 457 (Ct. App. 1980).
940.225 Annotation
See note to Art. I, sec. 5, citing State v. Baldwin, 101 W (2d) 441, 304 NW (2d) 742 (1981).
940.225 Annotation
Age classifications under this section may be open to question. State v. Cuyler, 110 W (2d) 133, 327 NW (2d) 662 (1983).
940.225 Annotation
See note to Art. I, sec. 5, citing State v. Lomagro, 113 W (2d) 582, 335 NW (2d) 583 (1983).
940.225 Annotation
Jury instruction that touching "vaginal area" constituted sexual contact was correct. State v. Morse, 126 W (2d) 1, 374 NW (2d) 388 (Ct. App. 1985).
940.225 Annotation
"Unconscious" as used in (2) (d) is a loss of awareness which may be caused by sleep. State v. Curtis, 144 W (2d) 691, 424 NW (2d) 719 (Ct. App. 1988).
940.225 Annotation
See note to 904.01, citing State v. Hartman, 145 W (2d) 1, 426 NW (2d) 320 (1988).
940.225 Annotation
A defendant's lack of intent to make a victim believe the defendant is armed is irrelevant in finding a violation of sub. (1) (b); if the victim's belief that the defendant was armed is reasonable, that is enough. State v. Hubanks, 173 W (2d) 1, 496 NW (2d) 96 (Ct. App. 1992).
940.225 Annotation
Attempted fourth-degree sexual assault is not offense under Wisconsin law. State v. Cvorovic, 158 W (2d) 630, 462 NW (2d) 897 (Ct. App. 1990).
940.225 Annotation
Discussion of "use or threat of force or violence" under (2) (a). State v. Bonds, 165 W (2d) 27, 477 NW (2d) 265 (1991).
940.225 Annotation
Dog may be dangerous weapon under (1) (b). State v. Sinks, 168 W (2d) 245, 483 NW (2d) 286 (Ct. App. 1992).
940.225 Annotation
Convictions under both (1) (d) and (2) (d) did not violate double jeopardy. State v. Sauceda, 168 W (2d) 486, 485 NW (2d) 1 (1992).
940.225 Annotation
Sub. (2) (d) is not unconstitutionally vague. Expert evidence regarding sleep based solely on a hypothetical situation similar but not identical to the facts of the case was inadmissible. State v. Pittman, 174 W (2d) 255, 496 NW (2d) 74 (1993), 445.
940.225 Annotation
Convictions under both subs. (2) (a) and (2) (e) did not violate double jeopardy. State v. Selmon, 175 W (2d) 155, 877 NW (2d) 498 (Ct. App. 1993).
940.225 Annotation
Discussion of relevant evidence in child sexual assault case. In Interest of Michael R.B. 175 W (2d) 713, 499 NW (2d) 641 (1993).
940.225 Annotation
"Great bodily harm" is a distinct element under sub. (1) (a) and need not be caused by the sexual act. State v. Schambow, 176 W (2d) 286, NW (2d) (Ct. App. 1993).
940.225 Annotation
Intent is not an element of sub. (2) (a); lack of intent element does not render this provision constitutionally invalid. State v. Neumann, 179 W (2d) 687, 508 NW (2d) 54 (Ct. App. 1993).
940.225 Annotation
Previous use of force, and victim's resulting fear, was an appropriate basis for finding that a threat of force existed under sub. (2) (a). State v. Speese, 191 W (2d) 205, 528 NW (2d) 63 (Ct. App. 1995).
940.225 Annotation
Violation of any of the provisions of this section does not immunize the defendant from violating the same or another provision in the course of sexual misconduct. Two acts of vaginal intercourse are sufficiently different in fact to justify separate charges under sub. (1) (d). State v. Kruzycki, 192 W (2d) 509, 531 NW (2d) 429 (Ct. App. 1995).
940.225 Annotation
A defendant need not be informed of the potential of a ch. 980 commitment for a guilty plea to a sexual assault charge to be knowingly made as the commitment is a collateral and not direct consequence of the plea. State v. Myers, 199 W (2d) 391, 544 NW (2d) 609 (Ct. App. 1996).
940.225 Annotation
Sub. (2) (c) is not unconstitutionally vague. State v. Smith, 215 W (2d) 84, 572 NW (2d) 496 (Ct. App. 1997).
940.225 Annotation
Conviction on 2 counts of rape, where offenses occurred 25 minutes apart in same location, did not violate double jeopardy provisions of U.S. Constitution. Harrell v. Israel, 478 F Supp. 752 (1979).
940.225 Annotation
Conviction for attempted first degree sexual assault based on circumstantial evidence did not deny due process. Upshaw v. Powell, 478 F Supp. 1264 (1979).
940.23
940.23
Reckless injury. 940.23(1)(a)(a) Whoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class C felony.
940.23(1)(b)
(b) Whoever recklessly causes great bodily harm to an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman who is pregnant with that unborn child or another is guilty of a Class C felony.
940.23(2)(a)(a) Whoever recklessly causes great bodily harm to another human being is guilty of a Class D felony.
940.23(2)(b)
(b) Whoever recklessly causes great bodily harm to an unborn child is guilty of a Class D felony.
940.23 History
History: 1987 a. 399;
1997 a. 295.
940.23 Note
Judicial Council Note, 1988: Sub. (1) is analogous to the prior offense of injury by conduct regardless of life.
940.23 Annotation
Sub. (2) is new. It creates the crime of injury by criminal recklessness. See s. 939.24. [Bill 191-S]
940.23 Annotation
First-degree reckless injury, s. 940.23 (1), is not a lesser included offense of aggravated battery. State v. Eastman, 185 W (2d) 405, 518 NW (2d) 257 (Ct. App. 1994).
940.24
940.24
Injury by negligent handling of dangerous weapon, explosives or fire. 940.24(1)
(1) Whoever causes bodily harm to another by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class E felony.
940.24(2)
(2) Whoever causes bodily harm to an unborn child by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class E felony.
940.24 Note
Judicial Council Note, 1988: The definition of the offense is broadened to include highly negligent handling of fire, explosives and dangerous weapons other than a firearm, airgun, knife or bow and arrow. See s. 939.22 (10). The culpable mental state is criminal negligence. See s. 939.25 and the NOTE thereto. [Bill 191-S]
940.24 Annotation
Dogs must be intended to be weapons before their handling can result in a violation of this section. Because a dog bites it does not render the dog a dangerous weapon. Despite evidence of positive steps to restrain the dog, where those measures are wholly inadequate criminal negligence may be found. Physical proximity is not necessary for a defendant's activity to constitute handling. State v. Bodoh, 220 W (2d) 102, 582 NW (2d) 440 (Ct. App. 1998).
940.25
940.25
Injury by intoxicated use of a vehicle. 940.25(1)
(1) Any person who does any of the following is guilty of a Class D felony:
940.25(1)(a)
(a) Causes great bodily harm to another human being by the operation of a vehicle while under the influence of an intoxicant.
940.25(1)(b)
(b) Causes great bodily harm to another human being by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in
s. 340.01 (46m).
940.25(1)(bm)
(bm) Causes great bodily harm to another human being 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.
940.25(1)(c)
(c) Causes great bodily harm to an unborn child by the operation of a vehicle while under the influence of an intoxicant.
940.25(1)(d)
(d) Causes great bodily harm to an unborn child by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in
s. 340.01 (46m).
940.25(1)(e)
(e) Causes great bodily harm to 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.
940.25(1b)
(1b) If there was a minor passenger under 16 years of age 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.
940.25(1d)
(1d) If the person who committed the 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.
940.25 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).
940.25(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 or
sub. (1) (c) or
(e) 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) or both
sub. (1) (c) and
(e) 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) or both
sub. (1) (c) and
(e) 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. or
3., under
ss. 343.30 (1q) and
343.305 or under
s. 350.11 (3) (a) 2. and
3. Subsection (1) (a),
(b),
(bm),
(c),
(d) and
(e) each require proof of a fact for conviction which the other does not require.
940.25(2)
(2) The defendant has a defense if he or she proves by a preponderance of the evidence that the great bodily harm 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), or
(bm),
(d) or
(e).
940.25 Annotation
Double jeopardy clause was not violated by charge under sub. (1) (c), 1987 stats. [now sub. (1m)] of violations of subs. (1) (a) and (b). State v. Bohacheff, 114 W (2d) 402, 338 NW (2d) 466 (1983).
940.25 Annotation
Trial court did not err in refusing to admit expert testimony indicating that victims would not have suffered same injury had they been wearing seat belts; evidence not relevant to defense under (2). State v. Turk, 154 W (2d) 294, 453 NW (2d) 163 (1990).
940.285
940.285
Abuse of vulnerable adults. 940.285(1)(bm)
(bm) "Maltreatment" includes any of the following conduct:
940.285(1)(bm)1.
1. Conduct that causes or could reasonably be expected to cause bodily harm or great bodily harm.
940.285(1)(bm)2.
2. Restraint, isolation or confinement that causes or could reasonably be expected to cause bodily harm or great bodily harm or mental or emotional damage, including harm to the vulnerable adult's psychological or intellectual functioning that is exhibited by severe anxiety, depression, withdrawal, regression or outward aggressive behavior or a combination of these behaviors. This subdivision does not apply to restraint, isolation or confinement by order of a court or other lawful authority.
940.285(1)(bm)3.
3. Deprivation of a basic need for food, shelter, clothing or personal or health care, including deprivation resulting from the failure to provide or arrange for a basic need by a person who has assumed responsibility for meeting the need voluntarily or by contract, agreement or court order.
940.285(1)(dm)
(dm) "Recklessly" means conduct that creates a situation of unreasonable risk of harm and demonstrates a conscious disregard for the safety of the vulnerable adult.
940.285(1)(e)
(e) "Vulnerable adult" means any person 18 years of age or older who either is a developmentally disabled person or has infirmities of aging, mental illness or other like incapacities and who is:
940.285(1)(e)1.
1. Substantially mentally incapable of providing for his or her needs for food, shelter, clothing or personal or health care; or
940.285(2)(a)(a) Any person, other than a person in charge of or employed in a facility under
s. 940.29 or in a facility or program under
s. 940.295 (2), who does any of the following may be penalized under
par. (b):
940.285(2)(a)1.
1. Intentionally subjects a vulnerable adult to maltreatment.
940.285(2)(a)3.
3. Negligently subjects a vulnerable adult to maltreatment.
940.285(2)(b)1g.1g. Any person violating
par. (a) under circumstances that cause death is guilty of a Class B felony.
940.285(2)(b)1m.
1m. Any person violating
par. (a) under circumstances that cause great bodily harm is guilty of a Class C felony.
940.285(2)(b)1r.
1r. Any person violating
par. (a) 1. under circumstances that are likely to cause great bodily harm is guilty of a Class D felony.
940.285(2)(b)2.
2. Any person violating
par. (a) 1. under circumstances that cause or are likely to cause bodily harm is guilty of a Class E felony.
940.285(2)(b)3.
3. Any person violating
par. (a) 2. or
3. under circumstances that are likely to cause great bodily harm is guilty of a Class E felony.
940.285(2)(b)4.
4. Any person violating
par. (a) 2. or
3. under circumstances that cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.
940.285(2)(b)5.
5. Any person violating
par. (a) 1.,
2. or
3. under circumstances not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.
