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.
948.025 Annotation
The state may bring multiple prosecutions under sub. (1) when two or more episodes involving "3 or more violations under s. 948.02 (1) or (2) within a specified period of time involving the same child" are discrete as to time and venue. State v. Nommensen,
2007 WI App 224,
305 Wis. 2d 695,
741 N.W.2d 481,
06-2727.
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 C 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 E 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 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).
948.03 Annotation
To overcome the privilege of parental discipline in s. 939.45 (5), the state must prove beyond a reasonable doubt that only one of the following is not met: 1) the use of force must be reasonably necessary; 2) the amount and nature of the force used must be reasonable; and 3) the force used must not be known to cause, or create a substantial risk of, great bodily harm or death. Whether a reasonable person would have believed the amount of force used was necessary and not excessive must be determined from the standpoint of the defendant at the time of the defendant's acts. The standard is what a person of ordinary intelligence and prudence would have believed in the defendant's position under the circumstances that existed at the time of the alleged offense. State v. Kimberly B.
2005 WI App 115,
283 Wis. 2d 731,
699 N.W.2d 641,
04-1424.
948.03 Annotation
The definition of reckless in this section is distinct from the general definition found in s. 939.24 and does not contain a state of mind element. Because the defense of mistake defense applies only to criminal charges with a state of mind element the trial court properly exercised its discretion in refusing to give an instruction on the mistake defense. State v. Hemphill,
2006 WI App 185,
296 Wis. 2d 198,
722 N.W. 2d 393,
05-1350.
948.03 Annotation
Reckless child abuse requires the defendant's actions demonstrate a conscious disregard for the safety of a child, not that the defendant was subjectively aware of that risk. In contrast, criminal recklessness under s. 939.24 (1) is defined as when the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk. Thus, recklessly causing harm to a child is distinguished from criminal recklessness, because only the latter includes a subjective component. State v. Williams,
2006 WI App 212,
296 Wis. 2d 834,
723 N.W. 2d 719,
05-2282.
948.03 Annotation
Testimony supporting the defendant father's assertion that he was beaten with a belt as a child was not relevant to whether the amount of force he used in spanking his daughter was objectively reasonable. A parent may not abuse his or her child and claim that conduct is reasonable based on his or her history of being similarly abused. State v. Williams,
2006 WI App 212,
296 Wis. 2d 834,
723 N.W. 2d 719,
05-2282.
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 may be penalized under
sub. (2p):
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 may be penalized under
sub. (2p) 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) may be penalized under
sub. (2p).
948.05(2p)(b)
(b) A person who violates
sub. (1),
(1m), or
(2) is guilty of a Class F felony if the person is under 18 years of age when the offense occurs.
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,
98-0642.
948.051
948.051
Trafficking of a child. 948.051(1)
(1) Whoever knowingly recruits, entices, provides, obtains, or harbors, or knowingly attempts to recruit, entice, provide, obtain, or harbor, any child for the purpose of commercial sex acts, as defined in
s. 940.302 (1) (a), or sexually explicit performance is guilty of a Class C felony.
948.051(2)
(2) Whoever benefits in any manner from a violation of
sub. (1) is guilty of a Class C felony if the person knows that the benefits come from an act described in
sub. (1).
948.051(3)
(3) Any person who incurs an injury or death as a result of a violation of
sub. (1) or
(2) may bring a civil action against the person who committed the violation. In addition to actual damages, the court may award punitive damages to the injured party, not to exceed treble the amount of actual damages incurred, and reasonable attorney fees.
948.051 History
History: 2007 a. 116.
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, or an individual who the actor believes or has reason to believe 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 or individual.
948.055(2)(a)
(a) A Class F felony if any of the following applies:
948.055(2)(a)2.
2. The actor believes or has reason to believe that the child has not attained the age of 13 years.
948.055(2)(b)
(b) A Class H felony if any of the following applies:
948.055(2)(b)1.
1. The child has attained the age of 13 years but has not attained the age of 18 years.
948.055(2)(b)2.
2. The actor believes or has reason to believe that the child has attained the age of 13 years but has not attained the age of 18 years.
948.055 History
History: 1987 a. 334;
1989 a. 359;
1993 a. 218 ss.
6,
7; Stats. 1993 s. 948.055;
1995 a. 67;
2001 a. 109;
2011 a. 284.
948.06
948.06
Incest with a child. Whoever does any of the following is guilty of a Class C felony:
948.06(1)
(1) Marries or has sexual intercourse or sexual contact with a child he or she knows is related, either by blood or adoption, and the child is related in a degree of kinship closer than 2nd cousin.
948.06(1m)
(1m) Has sexual contact or sexual intercourse with a child if the actor is the child's stepparent.
948.06(2)
(2) Is a person responsible for the child's welfare and:
948.06(2)(a)
(a) Has knowledge that another person who is related to the child by blood or adoption in a degree of kinship closer than 2nd cousin or who is a child's stepparent has had or intends to have sexual intercourse or sexual contact with the child;
948.06(2)(b)
(b) Is physically and emotionally capable of taking action that will prevent the intercourse or contact from occurring or being repeated;
948.06(2)(d)
(d) 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.
948.07
948.07
Child enticement. Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class D felony:
948.07(2)
(2) Causing the child to engage in prostitution.
948.07(3)
(3) Exposing a sex organ to the child or causing the child to expose a sex organ in violation of
s. 948.10.
948.07(4)
(4) Recording the child engaging in sexually explicit conduct.
948.07(5)
(5) Causing bodily or mental harm to the child.
948.07(6)
(6) Giving or selling to the child a controlled substance or controlled substance analog in violation of
ch. 961.
948.07 Annotation
The penalty scheme of sub. (3) is not unconstitutionally irrational. That the statute, unlike sub. (1), did not distinguish between victims 16 years old or older and other children victims is a matter for the legislature. State v. Hanson,
182 Wis. 2d 481,
513 N.W.2d 700 (Ct. App. 1994).
948.07 Annotation
This section includes the attempted crime, as well as the completed crime, and cannot be combined with the general attempt statute. State v. DeRango,
229 Wis. 2d 1,
599 N.W.2d 27 (Ct. App. 1999),
98-0642.
948.07 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,
98-0642.
948.07 Annotation
This section creates one crime with multiple modes of commission. The alternate modes of commission are not so dissimilar as to implicate fundamental fairness. As such, a defendant is not entitled to a unanimity instruction. State v. DeRango,
2000 WI 89,
236 Wis. 2d 721,
613 N.W.2d 833,
98-0642.
948.07 Annotation
One alternate mode of commission of the crime under this section is attempt to cause a child to go into a vehicle, building, room, or secluded place. The principles of attempt in s. 939.32 apply. That the intended victims were fictitious constituted an extraneous fact beyond the defendant's control that prevented successful enticement while not excusing the attempt to entice. State v. Koenck,
2001 WI App 93,
242 Wis. 2d 693,
626 N.W.2d 359,
00-2684.
948.07 Annotation
Attempted child enticement may be charged when the intervening extraneous factor that makes the offense an attempted rather than completed crime is that unbeknownst to the defendant, the "victim" is an adult government agent posing as a child. The 1st amendment is not implicated by the application of the child enticement statute to child enticements initiated over the internet as the statute regulates conduct, not speech. State v. Robins,
2002 WI 65,
253 Wis. 2d 298,
647 N.W.2d 287,
00-2841.
948.07 Annotation
Acts alleged in furtherance of the criminal objective, such as attempts to have a child get into a vehicle or go into a hotel room or a secluded place are not required to prove attempted child enticement. Going to meet the child at a planned time and place is a sufficient, unequivocal act in furtherance of the criminal objective when earlier conversations provide reasonable inferences of that criminal objective. State v. Grimm,
2002 WI App 242,
258 Wis. 2d 166,
653 N.W.2d 284,
01-0138.
948.07 Annotation
While an attempt cannot lie to an offense that does not carry the element of specific intent and the statutory definition of sexual intercourse does not formally include an intent element, the act of sexual intercourse is necessarily an intentional act. As such, the crime of attempted sexual assault of a child by means of sexual intercourse is a crime. State v. Brienzo,
2003 WI App 203,
267 Wis. 2d 349,
671 N.W.2d 700,
01-1362.
948.07 Annotation
Like the child enticement statute in Robins, the child sexual assault statute regulates conduct, not speech. An attempt to have sexual contact or sexual intercourse with a child initiated or carried out in part by means of language does not make an attempted child sexual assault charge susceptible of 1st amendment scrutiny. State v. Brienzo,
2003 WI App 203,
267 Wis. 2d 349,
671 N.W.2d 700.
948.07 Annotation
This section requires only that the defendant cause the child to go into any vehicle, building, room, or secluded place with the intent to engage in illicit conduct, but not that the child necessarily be first separated from the public. State v. Provo,
2004 WI App 97,
272 Wis. 2d 837,
681 N.W.2d 272,
03-1710.
948.07 Annotation
"Secluded" in this section is not a technical term. In the context of child enticement, a secluded place would include any place that provides the enticer an opportunity to remove the child from within the general public's view to a location where any intended sexual conduct is less likely to be detected by the public. A place need not even be screened or hidden or remote if some other aspect of the place lowers the likelihood of detection. All the statute requires is that the place provides a means by which to exclude the child and reduce the risk of detection. State v. Pask,
2010 WI App 53,
324 Wis. 2d 555,
781 N.W.2d 751,
09-0559.
948.075
948.075
Use of a computer to facilitate a child sex crime. 948.075(1r)(1r) Whoever uses a computerized communication system to communicate with an individual who the actor believes or has reason to believe has not attained the age of 16 years with intent to have sexual contact or sexual intercourse with the individual in violation of
s. 948.02 (1) or
(2) is guilty of a Class C felony.
948.075(2)
(2) This section does not apply if, at the time of the communication, the actor reasonably believed that the age of the person to whom the communication was sent was no more than 24 months less than the age of the actor.
948.075(3)
(3) Proof that the actor did an act, other than use a computerized communication system to communicate with the individual, to effect the actor's intent under
sub. (1r) shall be necessary to prove that intent.
948.075 Annotation
Defendant's admission to driving to the alleged victim's neighborhood for an innocent purpose combined with computer communications, in which the defendant told the alleged victim that he drove through her neighborhood for the specific purpose of meeting her, and his confession to the police that he went to the area so he could "get her interested in chatting with him again," showed that the non-computer-assisted act of driving through the area was to effect his intent to have sex with the alleged victim and satisfied the requirement in sub. (3). State v. Schulpius,
2006 WI App 263,
298 Wis. 2d 155,
726 N.W.2d 706,
06-0283.
