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:
940.48(2)(a)
(a) Any person who commits a contempt of court is entitled to credit for any punishment imposed therefor against any sentence imposed on conviction under
ss. 940.42 to
940.45; and
940.48(2)(b)
(b) Any conviction or acquittal for any substantive offense under
ss. 940.42 to
940.45 is a bar to subsequent punishment for contempt arising out of the same act.
940.48(3)
(3) By the revocation of any form of pretrial release or forfeiture of bail and the issuance of a bench warrant for the defendant's arrest or remanding the defendant to custody. After hearing and on substantial evidence, the revocation may be made whether the violation of order complained of has been committed by the defendant personally or was caused or encouraged to have been committed by the defendant.
940.48 History
History: 1981 c. 118.
940.49
940.49
Pretrial release. Any pretrial release of any defendant whether on bail or under any other form of recognizance shall be deemed to include a condition that the defendant neither do, nor cause to be done, nor permit to be done on his or her behalf, any act proscribed by
ss. 940.42 to
940.45 and any willful violation of the condition is subject to punishment as prescribed in
s. 940.48 (3) whether or not the defendant was the subject of an order under
s. 940.47.
940.49 History
History: 1981 c. 118.
