940.04(1)(1) Any person, other than the mother, who intentionally destroys the life of an unborn child may be fined not more than $5,000 or imprisoned not more than 3 years or both.
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 a child against a father's wishes does not constitute intentional infliction of emotional distress. Przybyla v. Przybyla,
87 Wis. 2d 441,
275 N.W.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 It was not impliedly repealed by the adoption of s. 940.15 in response to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 Wis. 2d 639,
526 N.W.2d 132 (1994).
940.04 Annotation
This section is cited as similar to a Texas statute that 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 U.S. 113.
940.04 Annotation
The state may prohibit first trimester abortions by nonphysicians. Connecticut v. Menillo,
423 U.S. 9.
940.04 AnnotationThe viability of an unborn child is discussed. Colautti v. Franklin,
439 U.S. 379 (1979).
940.04 Annotation
Any law requiring parental consent for a minor to obtain an abortion must ensure that the parent does not have absolute, and possibly arbitrary, veto power. Bellotti v. Baird,
443 U.S. 622 (1979).
940.04 Annotation
Poverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to the legitimate governmental objective of protecting potential life. Harris v. McRae,
448 U.S. 297 (1980).
940.04 Annotation
Abortion issues are discussed. Akron v. Akron Center for Reproductive Health,
462 U.S. 416 (1983); Planned Parenthood Assn. v. Ashcraft,
462 U.S. 476 (1983); Simopoulas v. Virginia,
462 U.S. 506 (1983).
940.04 Annotation
Wisconsin's abortion statute (940.04, Stats. 1969) is unconstitutional as applied to the abortion of an embryo that has not quickened. Babbitz v. McCann,
310 F. Supp. 293.
940.04 Annotation
Where the U.S. supreme court decisions clearly made Wisconsin antiabortion statute unenforceable, the issue in a physician's action for injunctive relief against enforcement became mooted, and it no longer presented a case or controversy over which the 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
The prosecution is required to prove only that the defendant's acts were a substantial factor in the victim's death; not the sole cause. State v. Block,
170 Wis. 2d 676,
489 N.W.2d 715 (Ct. App. 1992).
940.05 Annotation
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 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 Wis. 2d 392,
576 N.W.2d 912 (1998).
940.06 Annotation
Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 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]
940.09
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)(a)(a) If a person who committed an offense under
sub. (1) (a),
(b),
(c) or
(d) has one or more prior convictions, suspensions or revocations, counting convictions under this section and
s. 940.09 (1) in the person's lifetime plus other convictions, suspensions or revocations counted under
s. 343.307 (1), the procedure under
s. 343.301 shall be followed if the court orders the the equipping of a motor vehicle owned by the person with an ignition interlock device or the immobilization of the motor vehicle.
940.09(1d)(b)
(b) If the person who committed an offense under
sub. (1) (a),
(b),
(c) or
(d) has 2 or more prior convictions, suspensions or revocations, counting convictions under
sub. (1) and
s. 940.25 in the person's lifetime plus other convictions, suspensions or revocations counted under
s. 343.307 (1), the procedure under
s. 346.65 (6) shall be followed if the court orders the seizure and forfeiture of a motor vehicle owned by the person who committed the offense.
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 History
History: 1977 c. 173;
1981 c. 20,
184,
314,
391;
1983 a. 459;
1985 a. 331;
1987 a. 399;
1989 a. 105,
275,
359;
1991 a. 32,
277;
1993 a. 317;
1995 a. 425,
436;
1997 a. 237,
295,
338;
1999 a. 32,
109.
940.09 Annotation
Probable cause for arrest on a charge of homicide by intoxicated use of a motor vehicle justified taking a blood sample without a search warrant or arrest. State v. Bentley,
92 Wis. 2d 860,
286 N.W.2d 153 (Ct. App. 1979).
940.09 Annotation
Each death caused by an intoxicated operator's negligence is chargeable as a separate offense. State v. Rabe,
96 Wis. 2d 48,
291 N.W.2d 809 (1980).
940.09 Annotation
Because driving while intoxicated is inherently dangerous, the state need not prove a causal connection between the driver's intoxication and the victim's death. Sub. (2) does not violate the right against self-incrimination. State v. Caibaiosai,
122 Wis. 2d 587,
363 N.W.2d 574 (1985).
940.09 Annotation
The definition of vehicle in s. 939.22 (44) applies to this section and includes a tractor. State v. Sohn,
193 Wis. 2d 346,
535 N.W.2d 1 (Ct. App. 1995).
940.09 Annotation
Sub. (2) does not violate the constitutional guarantee of equal protection. State v. Lohmeier,
196 Wis. 2d 432,
538 N.W.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 Wis. 2d 183,
556 N.W.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 Wis. 2d 392,
576 N.W.2d 912 (1998).
940.09 AnnotationThis statute does not 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.
940.10 History
History: 1987 a. 399;
1997 a. 295.
