940.225 Annotation
The trial court did not err in denying the accused's motions to compel psychiatric examination of the victim and for discovery of the victim's past addresses. State v. Lederer,
99 Wis. 2d 430,
299 N.W.2d 457 (Ct. App. 1980).
940.225 Annotation
The verdict was unanimous in a rape case even though the jury was not required to specify whether the sexual assault was vaginal or oral. State v. Lomagro,
113 Wis. 2d 582,
335 N.W.2d 583 (1983).
940.225 Annotation
A jury instruction that touching the "vaginal area" constituted sexual contact was correct. State v. Morse,
126 Wis. 2d 1,
374 N.W.2d 388 (Ct. App. 1985).
940.225 Annotation
"Unconscious" as used in sub. (2) (d) is a loss of awareness that may be caused by sleep. State v. Curtis,
144 Wis. 2d 691,
424 N.W.2d 719 (Ct. App. 1988).
940.225 Annotation
The probability of exclusion and paternity are generally admissible in a sexual assault action in which the assault allegedly resulted in the birth of a child, but the probability of paternity is not generally admissible. HLA and red blood cell test results showing the paternity index and probability of exclusion were admissible statistics. State v. Hartman,
145 Wis. 2d 1,
426 N.W.2d 320 (1988).
940.225 Annotation
Attempted fourth-degree sexual assault is not an offense under Wisconsin law. State v. Cvorovic,
158 Wis. 2d 630,
462 N.W.2d 897 (Ct. App. 1990).
940.225 Annotation
The "use or threat of force or violence" under sub. (2) (a) does not require that the force be directed toward compelling the victim's submission, but includes forcible contact or the force used as the means of making contact. State v. Bonds,
165 Wis. 2d 27,
477 N.W.2d 265 (1991).
940.225 Annotation
Convictions under both subs. (1) (d) and (2) (d) did not violate double jeopardy. State v. Sauceda,
168 Wis. 2d 486,
485 N.W.2d 1 (1992).
940.225 Annotation
A defendant's lack of intent to make a victim believe that he was armed was irrelevant in finding a violation of sub. (1) (b); if the victim's belief that the defendant was armed was reasonable, that is enough. State v. Hubanks,
173 Wis. 2d 1,
496 N.W.2d 96 (Ct. App. 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 Wis. 2d 255,
496 N.W.2d 74 (1993).
940.225 Annotation
Convictions under both sub. (2) (a) and (e) did not violate double jeopardy. State v. Selmon,
175 Wis. 2d 155,
877 N.W.2d 498 (Ct. App. 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 Wis. 2d 286, N.W.2d (Ct. App. 1993).
940.225 Annotation
Intent is not an element of sub. (2) (a); lack of an intent element does not render this provision constitutionally invalid. State v. Neumann,
179 Wis. 2d 687,
508 N.W.2d 54 (Ct. App. 1993).
940.225 Annotation
A previous use of force, and the victim's resulting fear, was an appropriate basis for finding that a threat of force existed under sub. (2) (a). State v. Speese,
191 Wis. 2d 205,
528 N.W.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 Wis. 2d 509,
531 N.W.2d 429 (Ct. App. 1995).
940.225 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.
940.225 Annotation
Conviction on 2 counts of rape, for acts occurring 25 minutes apart in the same location, did not violate double jeopardy. Harrell v. Israel,
478 F. Supp. 752 (1979).
940.225 Annotation
A conviction for attempted 1st 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 D felony.
Effective date note
NOTE: Par. (a) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(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 D felony.
Effective date note
NOTE: Par. (b) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(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 F felony.
Effective date note
NOTE: Par. (a) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(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 F felony.
Effective date note
NOTE: Par. (b) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(b) Whoever recklessly causes great bodily harm to an unborn child is guilty of a Class D felony.
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 Wis. 2d 405,
518 N.W.2d 257 (Ct. App. 1994).
940.23 Annotation
Sub. (1) (a) cannot be applied against a mother for actions taken against a fetus while pregnant as the applicable definition of human being under s. 939.22 (16) is limited to one who is born alive. Sub. (1) (b) does not apply because s. 939.75 (2) (b) excludes actions by a pregnant woman from its application. State v. Deborah J.Z.
228 Wis. 2d 468,
596 N.W.2d 490 (Ct. App. 1999).
940.23 Annotation
Utter disregard for human life is not a subpart of the intent element and need not be proven subjectively. It can be proven by evidence relating to the defendant's state of mind or by evidence of heightened risk or obvious potentially lethal danger. However proven, utter disregard is measured objectively on the basis of what a reasonable person would have known. State v. Jensen, 2000 WI 84,
236 Wis. 2d 521,
613 N.W.2d 170.
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 I felony.
Effective date note
NOTE: Sub. (1) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(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 I felony.
Effective date note
NOTE: Sub. (2) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(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]
940.25
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 F felony:
Effective date note
NOTE: Sub. (1) (intro.) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(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 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.
940.25(1d)(a)1.1. Except as provided in
subd. 2., 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. 940.09 (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 enters an order regarding operating privilege restriction or enters an order regarding immobilization.
940.25(1d)(a)2.
2. Notwithstanding
par. (b), if the person who committed an offense under
sub. (1) (a),
(b),
(c), or
(d) has 2 or more convictions, suspensions, or revocations counted under
s. 343.307 (1) within any 5-year period, the procedure under
s. 343.301 shall be followed if the court enters an order regarding operating privilege restriction and the installation of an ignition interlock device or enters an order regarding immobilization.
940.25(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. 940.09 (1) 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 the motor vehicle owned by the person and used in the violation.
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) (b),
(bm),
(d) or
(e).
940.25 History
History: 1977 c. 193,
272;
1981 c. 20,
184;
1983 a. 459;
1985 a. 331;
1987 a. 399;
1989 a. 105,
275,
359;
1991 a. 277;
1993 a. 317,
428,
478;
1995 a. 425,
436;
1997 a. 237,
295;
1999 a. 32,
109,
186;
2001 a. 16,
109.
940.25 Annotation
The double jeopardy clause was not violated by a charge under sub. (1) (c) [now sub. (1m)] of violations of subs. (1) (a) and (b). State v. Bohacheff,
114 Wis. 2d 402,
338 N.W.2d 466 (1983).
940.25 Annotation
The trial court did not err in refusing to admit expert testimony indicating that the victims would not have suffered the same injury had they been wearing seat belts; the evidence not relevant to a defense under sub. (2). State v. Turk,
154 Wis. 2d 294,
453 N.W.2d 163 (1990).
940.25 Annotation
Dogs must be intended to be weapons before their handling can result in a violation of this section. That a dog bites does not render the dog a dangerous weapon. Despite evidence of positive steps to restrain the dog, when those measures are inadequate criminal negligence may be found. Physical proximity is not necessary for a defendant's activity to constitute handling. State v. Bodoh,
226 Wis. 2d 718,
595 N.W.2d 330 (1999).
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
