948.01(3r)
(3r) "Recording" includes the creation of a reproduction of an image or a sound or the storage of data representing an image or a sound.
948.01(4)
(4) "Sadomasochistic abuse" means the infliction of force, pain or violence upon a person for the purpose of sexual arousal or gratification.
948.01(5)
(5) "Sexual contact" means any of the following:
948.01(5)(a)
(a) Intentional touching by the complainant or defendant, either directly or through clothing by the use of any body part or object, of the complainant's or defendant's intimate parts if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant.
948.01(5)(b)
(b) Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant.
948.01(6)
(6) "Sexual intercourse" means vulvar penetration as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required.
948.01(7)
(7) "Sexually explicit conduct" means actual or simulated:
948.01(7)(a)
(a) Sexual intercourse, meaning vulvar penetration as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening either by a person or upon the person's instruction. The emission of semen is not required;
948.01(7)(d)
(d) Sexual sadism or sexual masochistic abuse including, but not limited to, flagellation, torture or bondage; or
948.01 Annotation
Instructions were proper that told the jury that "lewd" under sub. (7) (e), when applied to photographs, is not mere nudity but requires the display of the genital area and sexual suggestiveness as determined by the jury in the use of common sense. State v. Petrone,
161 Wis. 2d 530,
468 N.W.2d 676 (1991).
948.01 Annotation
When a defendant allows sexual contact initiated by a child, the defendant is guilty of intentional touching as defined in sub. (5). State v. Traylor,
170 Wis. 2d 393,
489 N.W.2d 626 (Ct. App. 1992).
948.01 Annotation
The definition of "parent" in sub. (3) is all-inclusive; a defendant whose paternity was admitted but had never been adjudged was a "parent." State v. Evans,
171 Wis. 2d 471,
492 N.W.2d 141 (1992).
948.01 Annotation
A live-in boyfriend can be a person responsible for the welfare of a child under sub. (3) if he was used by the child's legal guardian as a caretaker for the child. State v. Sostre,
198 Wis. 2d 409,
542 N.W.2d 774 (1996),
94-0778.
948.01 Annotation
The phrase "by the defendant or upon the defendant's instruction" in sub. (6) modifies the entire list of acts and establishes that for intercourse to occur the defendant either had to perform one of the actions on the victim or instruct the victim to perform one of the actions on himself or herself. State v. Olson, 2000 WI App 158,
238 Wis. 2d 74,
616 N.W.2d 144.
948.015
948.015
Other offenses against children. In addition to the offenses under this chapter, offenses against children include, but are not limited to, the following:
948.015(3)
(3) Section 125.07, relating to furnishing alcohol beverages to underage persons.
948.015(5)
(5) Section 254.12, relating to applying lead-bearing paints or selling or transferring a fixture or other object containing a lead-bearing paint.
948.015(6)
(6) Sections 961.01 (6) and
(9) and
961.49, relating to delivering and distributing controlled substances or controlled substance analogs to children.
948.02
948.02
Sexual assault of a child. 948.02(1)
(1)
First degree sexual assault. Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony.
948.02(2)
(2) Second degree sexual assault. Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony.
948.02(3)
(3) Failure to act. A person responsible for the welfare of a child who has not attained the age of 16 years is guilty of a Class F felony if that person has knowledge that another person intends to have, is having or has had sexual intercourse or sexual contact with the child, is physically and emotionally capable of taking action which will prevent the intercourse or contact from taking place or being repeated, fails to take that action and the failure to act exposes the child to an unreasonable risk that intercourse or contact may occur between the child and the other person or facilitates the intercourse or contact that does occur between the child and the other person.
948.02(4)
(4) Marriage not a bar to prosecution. A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant.
948.02(5)
(5) Death of victim. This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.
948.02 Annotation
Relevant evidence in child sexual assault cases is discussed. In Interest of Michael R.B.
175 Wis. 2d 713,
499 N.W.2d 641 (1993).
948.02 Annotation
Limits relating to expert testimony regarding child sex abuse victims is discussed. State v. Hernandez,
192 Wis. 2d 251,
531 N.W.2d 348 (Ct. App. 1995).
948.02 Annotation
The criminalization, under sub. (2), of consensual sexual relations with a child does not violate the defendant's constitutionally protected privacy rights. State v. Fisher,
211 Wis. 2d 664,
565 N.W.2d 565 (Ct. App. 1997).
948.02 Annotation
Second degree sexual assault under sub. (2) is a lesser included offense of first degree sexual assault under sub. (1). State v. Moua,
215 Wis. 2d 510,
573 N.W.2d 210 (Ct. App. 1997).
948.02 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.
948.02 Annotation
Expert evidence of sexual immaturity is relevant to a preadolescent's affirmative defense that he or she is not capable of having sexual contact with the purpose of becoming sexually aroused or gratified. State v. Stephen T. 2002 WI App 3,
250 Wis. 2d 26,
643 N.W.2d 151.
948.02 Annotation
That the intended victim was actually an adult was not a bar to bringing the charge of attempted 2nd degree sexual assault of a child. The fictitiousness of the victim is an extraneous factor beyond the defendant's control within the meaning of the attempt statute. State v. Grimm, 2002 WI App 242,
258 Wis. 2d 166,
653 N.W.2d 284,
01-0138.
948.02 Annotation
Section 939.22 (19) includes female and male breasts as each is "the breast of a human being." The touching of a boy's breast constitutes "sexual contact" under sub. (2). State v. Forster, 2003 WI App 29,
260 Wis. 2d 149,
659 N.W.2d 144,
02-0602.
948.02 Annotation
Sub. (2), in conjunction with ss. 939.23 and 939.43 (2), precludes a defense predicated on a child's intentional age misrepresentation. The statutes do not violate an accused's rights under the 14th amendment to the U. S. Constitution. State v. Jadowski 2004 WI 68, ___ Wis. 2d ___, ___ N.W.2d ___,
03-1493.
948.02 AnnotationThe constitutionality of this statute is upheld. Sweeney v. Smith,
9 F. Supp. 2d 1026 (1998).
948.025
948.025
Engaging in repeated acts of sexual assault of the same child. 948.025(1)(1) Whoever commits 3 or more violations under
s. 948.02 (1) or
(2) within a specified period of time involving the same child is guilty of:
948.025(2)(a)(a) If an action under
sub. (1) (a) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations of
s. 948.02 (1) occurred within the specified period of time but need not agree on which acts constitute the requisite number.
948.025(2)(b)
(b) If an action under
sub. (1) (b) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations of
s. 948.02 (1) or
(2) occurred within the specified period of time but need not agree on which acts constitute the requisite number and need not agree on whether a particular violation was a violation of
s. 948.02 (1) or
(2).
948.025(3)
(3) The state may not charge in the same action a defendant with a violation of this section and with a felony violation involving the same child under
ch. 944 or a violation involving the same child under
s. 948.02,
948.05,
948.06,
948.07,
948.075,
948.08,
948.10,
948.11, or
948.12, unless the other violation occurred outside of the time period applicable under
sub. (1). This subsection does not prohibit a conviction for an included crime under
s. 939.66 when the defendant is charged with a violation of this section.
948.025 Annotation
This section does not violate the right to a unanimous verdict or to due process. State v. Johnson, 2001 WI 52,
243 Wis. 2d 365,
627 N.W.2d 455.
948.025 Annotation
Convicting the defendant on 3 counts of first-degree sexual assault of a child and one count of repeated acts of sexual assault of a child when all 4 charges involved the same child and the same time period violated sub. (3) . A court may reverse the conviction on the repeated acts charge under sub. (1) rather than the convictions for specific acts of sexual assault under s. 948.02 (1) when the proscription against multiple charges in sub. (3) is violated even if the repeated acts charge was filed prior to the charges for the specific actions. State v. Cooper, 2003 WI App 227,
267 Wis. 2d 886,
672 N.W.2d 118,
02-2247.
948.03
948.03
Physical abuse of a child. 948.03(1)
(1)
Definitions. In this section, "recklessly" means conduct which creates a situation of unreasonable risk of harm to and demonstrates a conscious disregard for the safety of the child.
948.03(2)
(2) Intentional causation of bodily harm. 948.03(2)(a)(a) Whoever intentionally causes great bodily harm to a child is guilty of a Class E felony.
948.03(2)(b)
(b) Whoever intentionally causes bodily harm to a child is guilty of a Class H felony.
948.03(2)(c)
(c) Whoever intentionally causes bodily harm to a child by conduct which creates a high probability of great bodily harm is guilty of a Class F felony.
948.03(3)
(3) Reckless causation of bodily harm. 948.03(3)(a)(a) Whoever recklessly causes great bodily harm to a child is guilty of a Class G felony.
948.03(3)(b)
(b) Whoever recklessly causes bodily harm to a child is guilty of a Class I felony.
948.03(3)(c)
(c) Whoever recklessly causes bodily harm to a child by conduct which creates a high probability of great bodily harm is guilty of a Class H felony.
948.03(4)
(4) Failing to act to prevent bodily harm. 948.03(4)(a)(a) A person responsible for the child's welfare is guilty of a Class F felony if that person has knowledge that another person intends to cause, is causing or has intentionally or recklessly caused great bodily harm to the child and is physically and emotionally capable of taking action which will prevent the bodily harm from occurring or being repeated, fails to take that action and the failure to act exposes the child to an unreasonable risk of great bodily harm by the other person or facilitates the great bodily harm to the child that is caused by the other person.
948.03(4)(b)
(b) A person responsible for the child's welfare is guilty of a Class H felony if that person has knowledge that another person intends to cause, is causing or has intentionally or recklessly caused bodily harm to the child and is physically and emotionally capable of taking action which will prevent the bodily harm from occurring or being repeated, fails to take that action and the failure to act exposes the child to an unreasonable risk of bodily harm by the other person or facilitates the bodily harm to the child that is caused by the other person.
948.03(6)
(6) Treatment through prayer. A person is not guilty of an offense under this section solely because he or she provides a child with treatment by spiritual means through prayer alone for healing in accordance with the religious method of healing permitted under
s. 48.981 (3) (c) 4. or
448.03 (6) in lieu of medical or surgical treatment.
948.03 History
History: 1987 a. 332;
2001 a. 109.
948.03 Annotation
To obtain a conviction for aiding and abetting a violation of sub. (2) or (3), the state must prove conduct that as a matter of objective fact aids another in executing the crime. State v. Rundle,
176 Wis. 2d 985,
500 N.W.2d 916 (Ct. App. 1993).
948.03 Annotation
A live-in boyfriend can be a person responsible for the welfare of a child under sub. (5) if he was used by the child's legal guardian as a caretaker for the child. State v. Sostre,
198 Wis. 2d 409,
542 N.W.2d 774 (1996).
948.04
948.04
Causing mental harm to a child. 948.04(1)
(1) Whoever is exercising temporary or permanent control of a child and causes mental harm to that child by conduct which demonstrates substantial disregard for the mental well-being of the child is guilty of a Class F felony.
948.04(2)
(2) A person responsible for the child's welfare is guilty of a Class F felony if that person has knowledge that another person has caused, is causing or will cause mental harm to that child, is physically and emotionally capable of taking action which will prevent the harm, fails to take that action and the failure to act exposes the child to an unreasonable risk of mental harm by the other person or facilitates the mental harm to the child that is caused by the other person.
948.04 History
History: 1987 a. 332;
2001 a. 109.
948.05
948.05
Sexual exploitation of a child. 948.05(1)
(1) Whoever does any of the following with knowledge of the character and content of the sexually explicit conduct involving the child is guilty of a Class F felony:
948.05(1)(a)
(a) Employs, uses, persuades, induces, entices, or coerces any child to engage in sexually explicit conduct for the purpose of recording or displaying in any way the conduct.
948.05(1)(b)
(b) Records or displays in any way a child engaged in sexually explicit conduct.
948.05(1m)
(1m) Whoever produces, performs in, profits from, promotes, imports into the state, reproduces, advertises, sells, distributes, or possesses with intent to sell or distribute, any recording of a child engaging in sexually explicit conduct is guilty of a Class F felony if the person knows the character and content of the sexually explicit conduct involving the child and if the person knows or reasonably should know that the child engaging in the sexually explicit conduct has not attained the age of 18 years.
948.05(2)
(2) A person responsible for a child's welfare who knowingly permits, allows or encourages the child to engage in sexually explicit conduct for a purpose proscribed in
sub. (1) (a) or
(b) or
(1m) is guilty of a Class F felony.
948.05(3)
(3) It is an affirmative defense to prosecution for violation of
sub. (1) (a) or
(b) or
(2) if the defendant had reasonable cause to believe that the child had attained the age of 18 years. A defendant who raises this affirmative defense has the burden of proving this defense by a preponderance of the evidence.
948.05 Annotation
"Import" under sub. (1) (c) means bringing in from an external source and does not require a commercial element or exempt personal use. State v. Bruckner,
151 Wis. 2d 833,
447 N.W.2d 376 (Ct. App. 1989).
948.05 Annotation
The purposes of ss. 948.05, child exploitation, and 948.07, child enticement, are distinct, and two distinct crimes are envisioned by the statutes. Charging both for the same act was not multiplicitous. State v. DeRango, 2000 WI 89,
236 Wis. 2d 721,
613 N.W.2d 833.
948.055
948.055
Causing a child to view or listen to sexual activity. 948.055(1)(1) Whoever intentionally causes a child who has not attained 18 years of age to view or listen to sexually explicit conduct may be penalized as provided in
sub. (2) if the viewing or listening is for the purpose of sexually arousing or gratifying the actor or humiliating or degrading the child.
