948.13(1)(1) In this section, "serious child sex offense" means any of the following:
948.13(1)(a)
(a) A crime under
s. 940.22 (2) or
940.225 (2) (c) or
(cm), if the victim is under 18 years of age at the time of the offense, a crime under
s. 940.302 (2) if
s. 940.302 (2) (a) 1. b. applies, or a crime under
s. 948.02 (1) or
(2),
948.025 (1),
948.05 (1) or
(1m),
948.051,
948.06,
948.07 (1),
(2),
(3), or
(4),
948.075, or
948.085.
948.13(1)(b)
(b) A crime under federal law or the law of any other state or, prior to May 7, 1996, under the law of this state that is comparable to a crime specified in
par. (a).
948.13(2)(a)(a) Except as provided in
pars. (b) and
(c), whoever has been convicted of a serious child sex offense and subsequently engages in an occupation or participates in a volunteer position that requires him or her to work or interact primarily and directly with children under 16 years of age is guilty of a Class F felony.
948.13(2)(b)
(b) If all of the following apply, the prohibition under
par. (a) does not apply to a person who has been convicted of a serious child sex offense until 90 days after the date on which the person receives actual written notice from a law enforcement agency, as defined in
s. 165.77 (1) (b), of the prohibition under
par. (a):
948.13(2)(b)1.
1. The only serious child sex offense for which the person has been convicted is a crime under
s. 948.02 (2).
948.13(2)(b)2.
2. The person was convicted of the serious child sex offense before May 7, 2002.
948.13(2)(b)3.
3. The person is eligible to petition for an exemption from the prohibition under
sub. (2m) because he or she meets the criteria specified in
sub. (2m) (a) 1. and
1m.
948.13(2)(c)
(c) The prohibition under
par. (a) does not apply to a person who is exempt under a court order issued under
sub. (2m).
948.13(2m)(a)(a) A person who has been convicted of a crime under
s. 948.02 (2),
948.025 (1), or
948.085 may petition the court in which he or she was convicted to order that the person be exempt from
sub. (2) (a) and permitted to engage in an occupation or participate in a volunteer position that requires the person to work or interact primarily and directly with children under 16 years of age. The court may grant a petition filed under this paragraph if the court finds that all of the following apply:
948.13(2m)(a)1.
1. At the time of the commission of the crime under
s. 948.02 (2),
948.025 (1), or
948.085 the person had not attained the age of 19 years and was not more than 4 years older or not more than 4 years younger than the child with whom the person had sexual contact or sexual intercourse.
948.13(2m)(a)1m.
1m. The child with whom the person had sexual contact or sexual intercourse had attained the age of 13 but had not attained the age of 16.
948.13(2m)(a)2.
2. It is not necessary, in the interest of public protection, to require the person to comply with
sub. (2) (a).
948.13(2m)(b)
(b) A person filing a petition under
par. (a) shall send a copy of the petition to the district attorney who prosecuted the person. The district attorney shall make a reasonable attempt to contact the victim of the crime that is the subject of the person's petition to inform the victim of his or her right to make or provide a statement under
par. (d).
948.13(2m)(c)
(c) A court may hold a hearing on a petition filed under
par. (a) and the district attorney who prosecuted the person may appear at the hearing. Any hearing that a court decides to hold under this paragraph shall be held no later than 30 days after the petition is filed if the petition specifies that the person filing the petition is covered under
sub. (2) (b), that he or she has received actual written notice from a law enforcement agency of the prohibition under
sub. (2) (a), and that he or she is seeking an exemption under this subsection before the expiration of the 90-day period under
sub. (2) (b).
948.13(2m)(d)
(d) Before deciding a petition filed under
par. (a), the court shall allow the victim of the crime that is the subject of the petition to make a statement in court at any hearing held on the petition or to submit a written statement to the court. A statement under this paragraph must be relevant to the issues specified in
par. (a) 1.,
1m. and
2.
948.13(2m)(e)1.1. Before deciding a petition filed under
par. (a), the court may request the person filing the petition to be examined by a physician, psychologist or other expert approved by the court. If the person refuses to undergo an examination requested by the court under this subdivision, the court shall deny the person's petition without prejudice.
948.13(2m)(e)2.
2. If a person is examined by a physician, psychologist or other expert under
subd. 1., the physician, psychologist or other expert shall file a report of his or her examination with the court, and the court shall provide copies of the report to the person and, if he or she requests a copy, to the district attorney. The contents of the report shall be confidential until the physician, psychologist or other expert has testified at a hearing held under
par. (c). The report shall contain an opinion regarding whether it would be in the interest of public protection to require the person to comply with
sub. (2) (a) and the basis for that opinion.
948.13(2m)(e)3.
3. A person who is examined by a physician, psychologist or other expert under
subd. 1. is responsible for paying the cost of the services provided by the physician, psychologist or other expert, except that if the person is indigent the cost of the services provided by the physician, psychologist or other expert shall be paid by the county. If the person claims or appears to be indigent, the court shall refer the person to the authority for indigency determinations under
s. 977.07 (1), except that the person shall be considered indigent without another determination under
s. 977.07 (1) if the person is represented by the state public defender or by a private attorney appointed under
s. 977.08.
948.13(2m)(em)
(em) A court shall decide a petition no later than 45 days after the petition is filed if the petition specifies that the person filing the petition is covered under
sub. (2) (b), that he or she has received actual written notice from a law enforcement agency of the prohibition under
sub. (2) (a), and that he or she is seeking an exemption under this subsection before the expiration of the 90-day period under
sub. (2) (b).
948.13(2m)(f)
(f) The person who filed the petition under
par. (a) has the burden of proving by clear and convincing evidence that he or she satisfies the criteria specified in
par. (a) 1.,
1m. and
2. In deciding whether the person has satisfied the criterion specified in
par. (a) 2., the court may consider any of the following:
948.13(2m)(f)1.
1. The ages, at the time of the violation, of the person who filed the petition and the victim of the crime that is the subject of the petition.
948.13(2m)(f)2.
2. The relationship between the person who filed the petition and the victim of the crime that is the subject of the petition.
948.13(2m)(f)3.
3. Whether the crime that is the subject of the petition resulted in bodily harm to the victim.
948.13(2m)(f)4.
4. Whether the victim of the crime that is the subject of the petition suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.
948.13(2m)(f)5.
5. The probability that the person who filed the petition will commit other serious child sex offenses in the future.
948.13(2m)(f)7.
7. Any other factor that the court determines may be relevant to the particular case.
948.13(3)
(3) Evidence that a person engages in an occupation or participates in a volunteer position relating to any of the following is prima facie evidence that the occupation or position requires him or her to work or interact primarily and directly with children under 16 years of age:
948.14
948.14
Registered sex offender and photographing minors. 948.14(1)(b)
(b) "Minor" means an individual who is under 17 years of age.
948.14(1)(d)
(d) "Sex offender" means a person who is required to register under
s. 301.45.
948.14(2)(a)(a) A sex offender may not intentionally capture a representation of any minor without the written consent of the minor's parent, legal custodian, or guardian. The written consent required under this paragraph shall state that the person seeking the consent is required to register as a sex offender with the department of corrections.
948.14(2)(b)
(b) Paragraph (a) does not apply to a sex offender who is capturing a representation of a minor if the sex offender is the minor's parent, legal custodian, or guardian.
948.14(3)
(3) Penalty. Whoever violates
sub. (2) is guilty of a Class I felony.
948.14 History
History: 2005 a. 432.
948.20
948.20
Abandonment of a child. Whoever, with intent to abandon the child, leaves any child in a place where the child may suffer because of neglect is guilty of a Class G felony.
948.20 History
History: 1977 c. 173;
1987 a. 332 s.
35; Stats. 1987 s. 948.20;
2001 a. 109.
948.21
948.21
Neglecting a child. 948.21(1)(1) Any person who is responsible for a child's welfare who, through his or her actions or failure to take action, intentionally contributes to the neglect of the child is guilty of one of the following:
948.21(1)(b)
(b) A Class H felony if bodily harm is a consequence.
948.21(1)(c)
(c) A Class F felony if great bodily harm is a consequence.
948.21(1)(d)
(d) A Class D felony if death is a consequence.
948.21(2)
(2) Under
sub. (1), a person responsible for the child's welfare contributes to the neglect of the child although the child does not actually become neglected if the natural and probable consequences of the person's actions or failure to take action would be to cause the child to become neglected.
948.22
948.22
Failure to support. 948.22(1)(a)
(a) "Child support" means an amount which a person is ordered to provide for support of a child by a court of competent jurisdiction in this state or in another state, territory or possession of the United States, or, if not ordered, an amount that a person is legally obligated to provide under
s. 49.90.
948.22(1)(c)
(c) "Spousal support" means an amount which a person is ordered to provide for support of a spouse or former spouse by a court of competent jurisdiction in this state or in another state, territory or possession of the United States, or, if not ordered, an amount that a person is legally obligated to provide under
s. 49.90.
948.22(2)
(2) Any person who intentionally fails for 120 or more consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class I felony. A prosecutor may charge a person with multiple counts for a violation under this subsection if each count covers a period of at least 120 consecutive days and there is no overlap between periods.
948.22(3)
(3) Any person who intentionally fails for less than 120 consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class A misdemeanor.
948.22(4)
(4) Under this section, the following is prima facie evidence of intentional failure to provide child, grandchild or spousal support:
948.22(4)(a)
(a) For a person subject to a court order requiring child, grandchild or spousal support payments, when the person knows or reasonably should have known that he or she is required to pay support under an order, failure to pay the child, grandchild or spousal support payment required under the order.
948.22(4)(b)
(b) For a person not subject to a court order requiring child, grandchild or spousal support payments, when the person knows or reasonably should have known that he or she has a dependent, failure to provide support equal to at least the amount established by rule by the department of children and families under
s. 49.22 (9) or causing a spouse, grandchild or child to become a dependent person, or continue to be a dependent person, as defined in
s. 49.01 (2).
948.22(5)
(5) Under this section, it is not a defense that child, grandchild or spousal support is provided wholly or partially by any other person or entity.
948.22(6)
(6) Under this section, affirmative defenses include but are not limited to inability to provide child, grandchild or spousal support. A person may not demonstrate inability to provide child, grandchild or spousal support if the person is employable but, without reasonable excuse, either fails to diligently seek employment, terminates employment or reduces his or her earnings or assets. A person who raises an affirmative defense has the burden of proving the defense by a preponderance of the evidence.
948.22(7)(a)(a) Before trial, upon petition by the complainant and notice to the defendant, the court may enter a temporary order requiring payment of child, grandchild or spousal support.
948.22(7)(b)
(b) In addition to or instead of imposing a penalty authorized for a Class I felony or a Class A misdemeanor, whichever is appropriate, the court shall:
948.22(7)(b)1.
1. If a court order requiring the defendant to pay child, grandchild or spousal support exists, order the defendant to pay the amount required including any amount necessary to meet a past legal obligation for support.
948.22(7)(b)2.
2. If no court order described under
subd. 1. exists, enter such an order. For orders for child or spousal support, the court shall determine the amount of support in the manner required under
s. 767.511 or
767.89, regardless of the fact that the action is not one for a determination of paternity or an action specified in
s. 767.511 (1).
948.22(7)(bm)
(bm) Upon request, the court may modify the amount of child or spousal support payments determined under
par. (b) 2. if, after considering the factors listed in
s. 767.511 (1m), regardless of the fact that the action is not one for a determination of paternity or an action specified in
s. 767.511 (1), the court finds, by the greater weight of the credible evidence, that the use of the percentage standard is unfair to the child or to either of the child's parents.
948.22(7)(c)
(c) An order under
par. (a) or
(b), other than an order for grandchild support, constitutes an income assignment under
s. 767.75 and may be enforced under
s. 767.77. Any payment ordered under
par. (a) or
(b), other than a payment for grandchild support, shall be made in the manner provided under
s. 767.57.
948.22 Annotation
Under s. 940.27 (2) [now 948.22 (2], the state must prove that the defendant had an obligation to provide support and failed to do so for 120 days. The state need not prove that the defendant was required to pay a specific amount. Sub. (6) does not unconstitutionally shift the burden of proof. State v. Duprey,
149 Wis. 2d 655,
439 N.W.2d 837 (Ct. App. 1989).
948.22 Annotation
Multiple prosecutions for a continuous failure to pay child support are allowed. State v. Grayson,
172 Wis. 2d 156,
493 N.W.2d 23 (1992).
948.22 Annotation
Jurisdiction in a criminal nonsupport action under s. 948.22 does not require that the child to be supported be a resident of Wisconsin during the charged period. State v. Gantt,
201 Wis. 2d 206,
548 N.W.2d 134 (Ct. App. 1996),
95-2469.
948.22 Annotation
Evidence of incarceration to prove inability to pay is not excluded under sub. (6), and there was no basis to find the evidence irrelevant. State v. Stutesman,
221 Wis. 2d 178,
585 N.W.2d 181 (Ct. App. 1998),
97-2991.
948.22 Annotation
This section does not distinguish between support and arrearages. It criminalizes failure to pay arrearages even after the child for whom support is ordered attains majority. Incarceration for violation of this section is not unconstitutional imprisonment for a debt. State v. Lenz,
230 Wis. 2d 529,
602 N.W.2d 172 (Ct. App. 1999),
99-0860.
948.22 Annotation
If nonsupport is charged as a continuing offense, the statute of limitations runs from the last date the defendant intentionally fails to provide support. If charges are brought for each 120 day period that a person does not pay, the statute of limitations bars charging for those 120 periods that are more than 6 years old. The running of the statute of limitations does not prevent inclusion of all unpaid amounts in a later arrearage order. State v. Monarch,
230 Wis. 2d 542,
602 N.W.2d 179 (Ct. App. 1999),
99-1054.
948.22 Annotation
A father, who intentionally refused to pay child support could, as a condition of probation, be required to avoid having another child unless he showed that he could support that child and his current children. In light of the defendant's ongoing victimization of his children and record manifesting his disregard for the law, the condition was not overly broad and was reasonably related to the defendant's rehabilitation. State v. Oakley,
2001 WI 103,
245 Wis. 2d 447,
629 N.W.2d 200,
99-3328.
948.22 Annotation
Whether a court of competent jurisdiction ordered a defendant to pay child support is not an element of failure to pay child support. A question in that regard need not be submitted to the jury. Because the defendant father did not identify a historical fact inconsistent with an incident of the Maine court's jurisdiction, whether a court of competent jurisdiction ordered him to pay child support was a purely legal question for the court to determine. State v. Smith,
2005 WI 104,
283 Wis. 2d 57,
699 N.W.2d 508,
03-1698.
