940.32(3)(b)
(b) The actor has a previous conviction for a violent crime, as defined in
s. 939.632 (1) (e) 1., or a previous conviction under this section or
s. 947.013 (1r),
(1t),
(1v) or
(1x), the victim of that crime is the victim of the present violation of
sub. (2), and the present violation occurs within 7 years after the prior conviction.
940.32(3m)
(3m) A prosecutor need not show that a victim received or will receive treatment from a mental health professional in order to prove that the victim suffered serious emotional distress under
sub. (2) (c) or
(2e) (c).
940.32(4)(a)(a) This section does not apply to conduct that is or acts that are protected by the person's right to freedom of speech or to peaceably assemble with others under the state and U.S. constitutions, including, but not limited to, any of the following:
940.32(4)(a)1.
1. Giving publicity to and obtaining or communicating information regarding any subject, whether by advertising, speaking or patrolling any public street or any place where any person or persons may lawfully be.
940.32(4)(b)
(b) Paragraph (a) does not limit the activities that may be considered to serve a legitimate purpose under this section.
940.32(5)
(5) This section does not apply to conduct arising out of or in connection with a labor dispute.
940.32(6)
(6) The provisions of this statute are severable. If any provision of this statute is invalid or if any application thereof is invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.
940.32 Annotation
This section does not violate the right to interstate travel and is not unconstitutionally vague or overbroad. State v. Ruesch,
214 Wis. 2d 548,
571 N.W.2d 898 (Ct. App. 1997),
96-2280.
940.32 Annotation
The actor's "acts" under sub. (2) (c) are not the equivalent of the actor's "course of conduct" under sub. (2) (a). There must be proof that the actor's acts caused fear and not that the course of conduct caused fear. State v. Sveum,
220 Wis. 2d 396,
584 N.W.2d 137 (Ct. App. 1998),
97-2185.
940.32 Annotation
A "previous conviction for a violent crime" is a substantive element of the Class H felony stalking offense under sub. (2m) (a), not a penalty enhancer. It was not error to allow the introduction of evidence at trial that the defendant had stipulated to having a previous conviction for a violent crime, nor was it error to instruct the jury to make a finding on that matter. State v. Warbelton, 2009 WI 6,
315 Wis. 2d 253,
759 N.W.2d 557,
07-0105.
940.32 Annotation
The 7-year time restriction specified in sub. (2m) (b) requires that only the final act charged as part of a course of conduct occur within 7 years of the previous conviction, and does not restrict by time the other acts used to establish the underlying course of conduct element of sub. (2). State v. Conner, 2009 WI App 143,
321 Wis. 2d 449,
775 N.W.2d 105,
08-1296.
940.32 Annotation
Although the acts in this case spanned apparently fewer than 15 minutes, this section specifically provides that stalking may be a series of 2 acts over a short time if the acts show a continuity of purpose. State v. Eichorn, 2010 WI App 70,
325 Wis. 2d 241,
783 N.W.2d 902,
09-1864.
940.34
940.34
Duty to aid victim or report crime. 940.34(2)(a)(a) Any person who knows that a crime is being committed and that a victim is exposed to bodily harm shall summon law enforcement officers or other assistance or shall provide assistance to the victim.
940.34(2)(b)
(b) Any person licensed as a private detective or granted a private security permit under
s. 440.26 who has reasonable grounds to believe that a crime is being committed or has been committed shall notify promptly an appropriate law enforcement agency of the facts which form the basis for this belief.
940.34(2)(c)1.1. In this paragraph, "unlicensed private security person" means a private security person, as defined in
s. 440.26 (1m) (h), who is exempt from the permit and licensure requirements of
s. 440.26.
940.34(2)(c)2.
2. Any unlicensed private security person who has reasonable grounds to believe that a crime is being committed or has been committed shall notify promptly an appropriate law enforcement agency of the facts which form the basis for this belief.
940.34(2)(d)
(d) A person need not comply with this subsection if any of the following apply:
940.34(2)(d)2.
2. Compliance would interfere with duties the person owes to others.
940.34(2)(d)3.
3. In the circumstances described under
par. (a), assistance is being summoned or provided by others.
940.34(2)(d)4.
4. In the circumstances described under
par. (b) or
(c), the crime or alleged crime has been reported to an appropriate law enforcement agency by others.
940.34(2m)
(2m) If a person is subject to
sub. (2) (b) or
(c), the person need not comply with
sub. (2) (b) or
(c) until after he or she has summoned or provided assistance to a victim.
940.34(3)
(3) If a person renders emergency care for a victim,
s. 895.48 (1) applies. Any person who provides other reasonable assistance under this section is immune from civil liability for his or her acts or omissions in providing the assistance. This immunity does not apply if the person receives or expects to receive compensation for providing the assistance.
940.34 Annotation
This section is not unconstitutional. For a conviction, it must be proved that an accused believed a crime was being committed and that a victim was exposed to bodily harm. The reporting required does not require the defendant to incriminate himself or herself as the statute contains no mandate that an individual identify himself or herself. Whether a defendant fits within an exception under sub. (2) (d) is a matter of affirmative defense. State v. LaPlante,
186 Wis. 2d 427,
521 N.W.2d 448 (Ct. App. 1994).
940.41(1r)
(1r) "Malice" or "maliciously" means an intent to vex, annoy or injure in any way another person or to thwart or interfere in any manner with the orderly administration of justice.
940.41(2)
(2) "Victim" means any natural person against whom any crime as defined in
s. 939.12 or under the laws of the United States is being or has been perpetrated or attempted in this state.
940.41(3)
(3) "Witness" means any natural person who has been or is expected to be summoned to testify; who by reason of having relevant information is subject to call or likely to be called as a witness, whether or not any action or proceeding has as yet been commenced; whose declaration under oath is received as evidence for any purpose; who has provided information concerning any crime to any peace officer or prosecutor; who has provided information concerning a crime to any employee or agent of a law enforcement agency using a crime reporting telephone hotline or other telephone number provided by the law enforcement agency; or who has been served with a subpoena issued under
s. 885.01 or under the authority of any court of this state or of the United States.
940.41 History
History: 1981 c. 118;
1993 a. 128.
940.42
940.42
Intimidation of witnesses; misdemeanor. Except as provided in
s. 940.43, whoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade any witness from attending or giving testimony at any trial, proceeding or inquiry authorized by law, is guilty of a Class A misdemeanor.
940.42 History
History: 1981 c. 118.
940.42 Annotation
When a mother and child were to testify against the defendant and the defendant sent letters to the mother urging that she and the child not testify, regardless of whether the letters were addressed to the child or the child was aware of the letter's contents, the defendant attempted to dissuade the child through her mother. As the mother of the minor child, had the parental responsibility and practical authority to monitor communications by third parties with the child, and to influence whether the child cooperated with the court proceedings, there was sufficient evidence to convict. State v. Moore, 2006 WI App 61,
292 Wis. 2d 101,
713 N.W.2d 131,
04-3227.
940.42 Annotation
This section supports charging a person with a separate count for each letter sent, and each other act performed, for the purpose of attempting to dissuade any witness from attending or giving testimony at a court proceeding or trial. State v. Moore, 2006 WI App 61,
292 Wis. 2d 101,
713 N.W.2d 131,
04-3227.
940.43
940.43
Intimidation of witnesses; felony. Whoever violates
s. 940.42 under any of the following circumstances is guilty of a Class G felony:
940.43(1)
(1) Where the act is accompanied by force or violence or attempted force or violence, upon the witness, or the spouse, child, stepchild, foster child, treatment foster child, parent, sibling or grandchild of the witness or any person sharing a common domicile with the witness.
Effective date note
NOTE: Sub. (1) is amended by
2009 Wis. Act 28 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read:
Effective date text
(1) Where the act is accompanied by force or violence or attempted force or violence upon the witness, or the spouse, child, stepchild, foster child, parent, sibling, or grandchild of the witness, or any person sharing a common domicile with the witness.
940.43(2)
(2) Where the act is accompanied by injury or damage to the real or personal property of any person covered under
sub. (1).
940.43(3)
(3) Where the act is accompanied by any express or implied threat of force, violence, injury or damage described in
sub. (1) or
(2).
940.43(4)
(4) Where the act is in furtherance of any conspiracy.
940.43(5)
(5) Where the act is committed by any person who has suffered any prior conviction for any violation under s.
943.30, 1979 stats.,
ss. 940.42 to
940.45, or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation under
ss. 940.42 to
940.45.
940.43(6)
(6) Where the act is committed by any person for monetary gain or for any other consideration acting on the request of any other person. All parties to the transactions are guilty under this section.
940.43(7)
(7) Where the act is committed by a person who is charged with a felony in connection with a trial, proceeding, or inquiry for that felony.
940.43 AnnotationConspiracy to intimidate a witness is included under sub. (4). State v. Seibert,
141 Wis. 2d 753,
416 N.W.2d 900 (Ct. App. 1987).
940.44
940.44
Intimidation of victims; misdemeanor. Except as provided in
s. 940.45, whoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade, another person who has been the victim of any crime or who is acting on behalf of the victim from doing any of the following is guilty of a Class A misdemeanor:
940.44(1)
(1) Making any report of the victimization to any peace officer or state, local or federal law enforcement or prosecuting agency, or to any judge.
940.44(2)
(2) Causing a complaint, indictment or information to be sought and prosecuted and assisting in the prosecution thereof.
940.44(3)
(3) Arresting or causing or seeking the arrest of any person in connection with the victimization.
940.44 History
History: 1981 c. 118.
940.44 Annotation
A jury instruction for a violation of s. 940.44 should specify the underlying crime and that a defendant cannot be found guilty of intimidating a victim of a crime unless the elements of the underlying crime are proved beyond a reasonable doubt. State v. Thomas,
161 Wis. 2d 616,
468 N.W.2d 729 (Ct. App. 1991).
940.44 Annotation
Acquittal on the underlying charge does not require acquittal on a charge under s. 940.44 as the jury may have exercised its right to return a not guilty verdict irrespective of evidence on the underlying charge. State v. Thomas,
161 Wis. 2d 616,
468 N.W.2d 729 (Ct. App. 1991).
940.44 Annotation
The disorderly conduct statute, s. 947.01, does not require a victim, but when the disorderly conduct is directed at a person, that person is the victim for the purpose of prosecuting the perpetrator for intimidating a victim under this section. State v. Vinje,
201 Wis. 2d 98,
548 N.W.2d 118 (Ct. App. 1996),
95-1484.
940.44 Annotation
In the phrase "causing a complaint ... to be sought and prosecuted and assisting in the prosecution thereof" in sub. (2), "and" is read in the disjunctive. Sub. (2) includes alleged acts of intimidation that occur after a victim has caused a complaint to be sought and applies to all acts of intimidation that attempt to prevent or dissuade a crime victim from providing any one or more of the following forms of assistance to prosecutors: 1) causing a complaint, indictment or information to be sought; 2) causing a complaint to be prosecuted; or, more generally, 3) assisting in a prosecution. State v. Freer, 2010 WI App 9,
323 Wis. 2d 29,
779 N.W.2d 12,
08-2233.
940.45
940.45
Intimidation of victims; felony. Whoever violates
s. 940.44 under any of the following circumstances is guilty of a Class G felony:
940.45(1)
(1) Where the act is accompanied by force or violence or attempted force or violence, upon the victim, or the spouse, child, stepchild, foster child, treatment foster child, parent, sibling or grandchild of the victim or any person sharing a common domicile with the victim.
Effective date note
NOTE: Sub. (1) is amended by
2009 Wis. Act 28 eff. the date stated in the notice provided by the secretary of children and families and published in the Wisconsin Administrative Register under s. 48.62 (9) to read:
Effective date text
(1) Where the act is accompanied by force or violence or attempted force or violence upon the victim, or the spouse, child, stepchild, foster child, parent, sibling, or grandchild of the victim, or any person sharing a common domicile with the victim.
940.45(2)
(2) Where the act is accompanied by injury or damage to the real or personal property of any person covered under
sub. (1).
940.45(3)
(3) Where the act is accompanied by any express or implied threat of force, violence, injury or damage described in
sub. (1) or
(2).
940.45(4)
(4) Where the act is in furtherance of any conspiracy.
940.45(5)
(5) Where the act is committed by any person who has suffered any prior conviction for any violation under s.
943.30, 1979 stats.,
ss. 940.42 to
940.45, or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation under
ss. 940.42 to
940.45.
940.45(6)
(6) Where the act is committed by any person for monetary gain or for any other consideration acting on the request of any other person. All parties to the transactions are guilty under this section.
940.46
940.46
Attempt prosecuted as completed act. Whoever attempts the commission of any act prohibited under
ss. 940.42 to
940.45 is guilty of the offense attempted without regard to the success or failure of the attempt. The fact that no person was injured physically or in fact intimidated is not a defense against any prosecution under
ss. 940.42 to
940.45.
940.46 History
History: 1981 c. 118.
940.47
940.47
Court orders. Any court with jurisdiction over any criminal matter, upon substantial evidence, which may include hearsay or the declaration of the prosecutor, that knowing and malicious prevention or dissuasion of any person who is a victim or who is a witness has occurred or is reasonably likely to occur, may issue orders including but not limited to any of the following:
940.47(2)
(2) An order that a person before the court other than a defendant, including, but not limited to, a subpoenaed witness or other person entering the courtroom of the court, not violate
ss. 940.42 to
940.45.
940.47(3)
(3) An order that any person described in
sub. (1) or
(2) maintain a prescribed geographic distance from any specified witness or victim.
940.47(4)
(4) An order that any person described in
sub. (1) or
(2) have no communication with any specified witness or any victim, except through an attorney under such reasonable restrictions as the court may impose.
940.47 History
History: 1981 c. 118.
940.48
940.48
Violation of court orders. Whoever violates an order issued under
s. 940.47 may be punished as follows:
940.48(2)
(2) As a contempt of court under
ch. 785. A finding of contempt is not a bar to prosecution under
ss. 940.42 to
940.45, but:
