Chapter 940

940.225 Annotation The probability of exclusion and paternity are generally admissible in a sexual assault action in which the assault allegedly resulted in the birth of a child, but the probability of paternity is not generally admissible. HLA and red blood cell test results showing the paternity index and probability of exclusion were admissible statistics. State v. Hartman, 145 Wis. 2d 1, 426 N.W.2d 320 (1988).

940.225 Annotation Attempted fourth-degree sexual assault is not an offense under Wisconsin law. State v. Cvorovic, 158 Wis. 2d 630, 462 N.W.2d 897 (Ct. App. 1990).

940.225 Annotation The “use or threat of force or violence” under sub. (2) (a) does not require that the force be directed toward compelling the victim’s submission, but includes forcible contact or the force used as the means of making contact. State v. Bonds, 165 Wis. 2d 27, 477 N.W.2d 265 (1991).

940.225 Annotation A dog may be a dangerous weapon under sub. (1) (b). State v. Sinks, 168 Wis. 2d 245, 483 N.W.2d 286 (Ct. App. 1992).

940.225 Annotation Convictions under both former subs. (1) (d) and (2) (d), 1985 stats., did not violate double jeopardy. State v. Sauceda, 168 Wis. 2d 486, 485 N.W.2d 1 (1992).

940.225 Annotation A defendant’s lack of intent to make a victim believe that the defendant was armed was irrelevant in finding a violation of sub. (1) (b); if the victim’s belief that the defendant was armed was reasonable, that is enough. State v. Hubanks, 173 Wis. 2d 1, 496 N.W.2d 96 (Ct. App. 1992).

940.225 Annotation Sub. (2) (d) is not unconstitutionally vague. Expert evidence regarding sleep based solely on a hypothetical situation similar, but not identical, to the facts of the case was inadmissible. State v. Pittman, 174 Wis. 2d 255, 496 N.W.2d 74 (1993).

940.225 Annotation Convictions under both former sub. (2) (a) and (e), 1987 stats., did not violate double jeopardy. State v. Selmon, 175 Wis. 2d 155, 877 N.W.2d 498 (Ct. App. 1993).

940.225 Annotation “Great bodily harm” is a distinct element under sub. (1) (a) and need not be caused by the sexual act. State v. Schambow, 176 Wis. 2d 286, 500 N.W.2d 362 (Ct. App. 1993).

940.225 Annotation Intent is not an element of sub. (2) (a); lack of an intent element does not render this provision constitutionally invalid. State v. Neumann, 179 Wis. 2d 687, 508 N.W.2d 54 (Ct. App. 1993).

940.225 Annotation A previous use of force, and the victim’s resulting fear, was an appropriate basis for finding that a threat of force existed under sub. (2) (a). State v. Speese, 191 Wis. 2d 205, 528 N.W.2d 63 (Ct. App. 1995).

940.225 Annotation Violation of any of the provisions of this section does not immunize the defendant from violating the same or another provision in the course of sexual misconduct. Two acts of vaginal intercourse are sufficiently different in fact to justify separate charges under sub. (1) (b). State v. Kruzycki, 192 Wis. 2d 509, 531 N.W.2d 429 (Ct. App. 1995).

940.225 Annotation Sub. (2) (c) is not unconstitutionally vague. State v. Smith, 215 Wis. 2d 84, 572 N.W.2d 496 (Ct. App. 1997), 96-2961.

940.225 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, 98-2196.

940.225 Annotation Sub. (2) (g) was not applicable to an employee of a federal VA hospital as it is not a facility under s. 940.295 (2). The definition of inpatient care facility in s. 940.295 incorporates s. 51.35 (1), which requires that all of the specifically enumerated facilities be places licensed or approved by the Department of Health and Family Services. A VA hospital is subject to federal regulation but is not licensed or regulated by the state. State v. Powers, 2004 WI App 156, 276 Wis. 2d 107, 687 N.W.2d 50, 03-1514.

940.225 Annotation Expert testimony is not required in every case to establish the existence of a mental illness or deficiency rendering the victim unable to appraise the victim’s conduct under sub. (2) (c). State v. Perkins, 2004 WI App 213, 277 Wis. 2d 243, 689 N.W.2d 684, 03-3296.

940.225 Annotation The statutory scheme of the sexual assault law does not require proof of stimulation of the clitoris or vulva for finding cunnilingus under sub. (5) (c). The notion of stimulation of the victim offends the principles underpinning the sexual assault law. State v. Harvey, 2006 WI App 26, 289 Wis. 2d 222, 710 N.W.2d 482, 05-0103.

940.225 Annotation Sub. (2) (h) does not extend to a sheriff’s deputy, who was assigned to work as a bailiff in the county courthouse. State v. Terrell, 2006 WI App 166, 295 Wis. 2d 619, 721 N.W.2d 527, 05-1499.

940.225 Annotation This section criminalizes sexual contact or sexual intercourse with a victim already dead at the time of the sexual activity when the accused did not cause the death of the victim. State v. Grunke, 2008 WI 82, 311 Wis. 2d 439, 752 N.W.2d 769, 06-2744.

940.225 Annotation The plain language of sub. (3) requires the state to prove beyond a reasonable doubt that the defendants attempted to have sexual intercourse with the victim without the victim’s words or overt actions indicating a freely given agreement to have sexual intercourse. The state does not have to prove that the victim withheld consent. State v. Grunke, 2008 WI 82, 311 Wis. 2d 439, 752 N.W.2d 769, 06-2744.

940.225 Annotation One who has sexual contact or intercourse with a dead person cannot be charged with first-degree or second-degree sexual assault, because the facts cannot correspond with the elements of those two charges. However, the possibility that the facts of a particular case will not come within the elements necessary to establish every crime listed in the statute does not mean the statute is absurd, but rather that the evidence necessary for all potential crimes under this section does not exist in all cases. State v. Grunke, 2008 WI 82, 311 Wis. 2d 439, 752 N.W.2d 769, 06-2744.

940.225 Annotation Sub. (7) does not limit sub. (3) to only those circumstances in which the perpetrator kills and has sexual intercourse with the victim in a series of events. State v. Grunke, 2008 WI 82, 311 Wis. 2d 439, 752 N.W.2d 769, 06-2744.

940.225 Annotation A prisoner participating in the home detention program under s. 302.425 remains at all times “confined,” that is to say imprisoned, in a jail. The fact that the prisoner is “detained” during the prisoner’s participation in the program at a location other than a jail facility does not negate the fact that the prisoner remains confined in a correctional institution for purposes of sub. (2) (h). State v. Hilgers, 2017 WI App 12, 373 Wis. 2d 756, 893 N.W.2d 261, 15-2256.

940.225 Annotation Conviction on two counts of rape, for acts occurring 25 minutes apart in the same location, did not violate double jeopardy. Harrell v. Israel, 478 F. Supp. 752 (1979).

940.225 Annotation A conviction for attempted first-degree sexual assault based on circumstantial evidence did not deny due process. Upshaw v. Powell, 478 F. Supp. 1264 (1979).

940.23 940.23 Reckless injury.

940.23(1) (1) First-degree reckless injury.

940.23(1)(a) (a) Whoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class D felony.

940.23(1)(b) (b) Whoever recklessly causes great bodily harm to an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman who is pregnant with that unborn child or another is guilty of a Class D felony.

940.23(2) (2) Second-degree reckless injury.

940.23(2)(a) (a) Whoever recklessly causes great bodily harm to another human being is guilty of a Class F felony.

940.23(2)(b) (b) Whoever recklessly causes great bodily harm to an unborn child is guilty of a Class F felony.

940.23 History History: 1987 a. 399; 1997 a. 295; 2001 a. 109.

940.23 Note Judicial Council Note, 1988: Sub. (1) is analogous to the prior offense of injury by conduct regardless of life.

940.23 Note Sub. (2) is new. It creates the crime of injury by criminal recklessness. See s. 939.24. [Bill 191-S]

940.23 Annotation First-degree reckless injury, sub. (1), is not a lesser included offense of aggravated battery. State v. Eastman, 185 Wis. 2d 405, 518 N.W.2d 257 (Ct. App. 1994).

940.23 Annotation Sub. (1) (a) cannot be applied against a mother for actions taken against a fetus while pregnant as the applicable definition of human being under s. 939.22 (16) is limited to one who is born alive. Sub. (1) (b) does not apply because s. 939.75 (2) (b) excludes actions by a pregnant woman from its application. State v. Deborah J.Z., 228 Wis. 2d 468, 596 N.W.2d 490 (Ct. App. 1999), 96-2797.

940.23 Annotation Utter disregard for human life is not a subpart of the intent element and need not be proven subjectively. It can be proven by evidence relating to the defendant’s state of mind or by evidence of heightened risk or obvious potentially lethal danger. However proven, utter disregard is measured objectively on the basis of what a reasonable person would have known. State v. Jensen, 2000 WI 84, 236 Wis. 2d 521, 613 N.W.2d 170, 98-3175.

940.23 Annotation Utter disregard requires more than a high degree of negligence or recklessness. To evince utter disregard, the mind must not only disregard the safety of another but be devoid of regard for the life of another. A person acting with utter disregard must possess a state of mind that has no regard for the moral or social duties of a human being. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.

940.23 Annotation In evaluating whether there is sufficient proof of utter disregard for human life, factors to be considered include the type of act, its nature, why the perpetrator acted as he/she did, the extent of the victim’s injuries, and the degree of force that was required to cause those injuries. Also considered are the type of victim and the victim’s age, vulnerability, fragility, and relationship to the perpetrator, as well as whether the totality of the circumstances showed any regard for the victim’s life. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.

940.23 Annotation Pointing a loaded gun at another is not conduct evincing utter disregard if it is otherwise defensible, even if it is not privileged. When conduct was to protect the defendant and the defendant’s friends, although not found to be self defense, the conduct is inconsistent with conduct evincing utter disregard. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.

940.23 Annotation Jensen, 2000 WI 84, does not create a rule assigning less weight to a defendant’s after-the-fact conduct. When evaluating whether a defendant’s conduct reflects utter disregard for human life, the fact-finder should examine the totality of the circumstances surrounding the crime, considering all relevant conduct before, during, and after a crime, giving each the weight it deems appropriate under the circumstances. State v. Burris, 2011 WI 32, 333 Wis. 2d 87, 797 N.W.2d 430, 09-0956.

940.235 940.235 Strangulation and suffocation.

940.235(1) (1) Whoever intentionally impedes the normal breathing or circulation of blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person is guilty of a Class H felony.

940.235(2) (2) Whoever violates sub. (1) is guilty of a Class G felony if the actor has a previous conviction under this section or a previous conviction for a violent crime, as defined in s. 939.632 (1) (e) 1.

940.235 History History: 2007 a. 127.

940.24 940.24 Injury by negligent handling of dangerous weapon, explosives or fire.

940.24(1) (1) Except as provided in sub. (3), whoever causes bodily harm to another by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class I felony.

940.24(2) (2) Whoever causes bodily harm to an unborn child by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class I felony.

940.24(3) (3) Subsection (1) does not apply to a health care provider acting within the scope of his or her practice or employment.

940.24 History History: 1977 c. 173; 1987 a. 399; 1997 a. 295; 2001 a. 109; 2011 a. 2.

940.24 Note Judicial Council Note, 1988: The definition of the offense is broadened to include highly negligent handling of fire, explosives and dangerous weapons other than a firearm, airgun, knife or bow and arrow. See s. 939.22 (10). The culpable mental state is criminal negligence. See s. 939.25 and the NOTE thereto. [Bill 191-S]

940.24 Annotation Dogs must be intended to be weapons before their handling can result in a violation of this section. That a dog bites does not render the dog a dangerous weapon. Despite evidence of positive steps to restrain the dog, when those measures are inadequate criminal negligence may be found. Physical proximity is not necessary for a defendant’s activity to constitute handling. State v. Bodoh, 226 Wis. 2d 718, 595 N.W.2d 330 (1999), 97-0495.

940.25 940.25 Injury by intoxicated use of a vehicle.

940.25(1) (1) Any person who does any of the following is guilty of a Class F felony:

940.25(1)(a) (a) Causes great bodily harm to another human being by the operation of a vehicle while under the influence of an intoxicant.

940.25(1)(am) (am) Causes great bodily harm to another human being by the operation of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.

940.25(1)(b) (b) Causes great bodily harm to another human being by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).

940.25(1)(bm) (bm) Causes great bodily harm to another human being by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.

940.25(1)(c) (c) Causes great bodily harm to an unborn child by the operation of a vehicle while under the influence of an intoxicant.

940.25(1)(cm) (cm) Causes great bodily harm to an unborn child by the operation of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.

940.25(1)(d) (d) Causes great bodily harm to an unborn child by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).

940.25(1)(e) (e) Causes great bodily harm to an unborn child by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.

940.25(1d) (1d) A person who violates sub. (1) is subject to the requirements and procedures for installation of an ignition interlock device under s. 343.301.

940.25(1m) (1m) 

940.25(1m)(a) (a) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of sub. (1) (a), (am), or (b); any combination of sub. (1) (a), (am), or (bm); any combination of sub. (1) (c), (cm), or (d); or any combination of sub. (1) (c), (cm), or (e) for acts arising out of the same incident or occurrence.

940.25(1m)(b) (b) If a person is charged in an information with any of the combinations of crimes referred to in par. (a), the crimes shall be joined under s. 971.12. If the person is found guilty of more than one of the crimes so charged for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 23.33 (13) (b) 2. and 3., under s. 23.335 (23) (c) 2. and 3., under s. 30.80 (6) (a) 2. or 3., under ss. 343.30 (1q) and 343.305 or under s. 350.11 (3) (a) 2. and 3. Subsection (1) (a), (am), (b), (bm), (c), (cm), (d), and (e) each require proof of a fact for conviction which the others do not require.

940.25(2) (2) 

940.25(2)(a) (a) The defendant has a defense if he or she proves by a preponderance of the evidence that the great bodily harm would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have an alcohol concentration described under sub. (1) (b), (bm), (d) or (e).

940.25(2)(b) (b) In any action under this section that is based on the defendant allegedly having a detectable amount of methamphetamine, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

940.25(3) (3) An officer who makes an arrest for a violation of this section shall make a report as required under s. 23.33 (4t), 23.335 (12) (j), 30.686, 346.635 or 350.106.

940.25 History History: 1977 c. 193, 272; 1981 c. 20, 184; 1983 a. 459; 1985 a. 331; 1987 a. 399; 1989 a. 105, 275, 359; 1991 a. 277; 1993 a. 317, 428, 478; 1995 a. 425, 436; 1997 a. 237, 295; 1999 a. 32, 109, 186; 2001 a. 16, 109; 2003 a. 30, 97; 2005 a. 253; 2009 a. 100; 2015 a. 170.

940.25 Note NOTE: For legislative intent see chapter 20, laws of 1981, section 2051 (13).

940.25 Annotation The double jeopardy clause was not violated by a charge under sub. (1) (c) [now sub. (1m)] of violations of sub. (1) (a) and (b). State v. Bohacheff, 114 Wis. 2d 402, 338 N.W.2d 466 (1983).

940.25 Annotation The trial court did not err in refusing to admit expert testimony indicating that the victims would not have suffered the same injury had they been wearing seat belts; the evidence was not relevant to a defense under sub. (2). State v. Turk, 154 Wis. 2d 294, 453 N.W.2d 163 (Ct. App. 1990).

940.25 Annotation The offense under sub. (1) (am) has two elements that must be proved beyond a reasonable doubt: 1) the defendant operated a vehicle with a detectable amount of a restricted controlled substance in the defendant’s blood; and 2) the defendant’s operation of the vehicle caused great bodily harm to the victim. The elements of the crime do not provide the state with any presumptions that relieve the state of its burden to establish the two elements beyond a reasonable doubt nor did the legislature’s enactment, without requiring a causal link between drug use and the injury as an element of the crime, in some way exceeds its authority. State v. Gardner, 2006 WI App 92, 292 Wis. 2d 682, 715 N.W.2d 720, 05-1372.

940.25 Annotation The affirmative defense under sub. (2) (a) does not shift to the defendant the burden to prove that the defendant is innocent. It requires the defendant to prove that despite the fact that the state has satisfied the elements of the offense, the defendant cannot be held legally responsible under the statute. State v. Gardner, 2006 WI App 92, 292 Wis. 2d 682, 715 N.W.2d 720, 05-1372.

940.25 Annotation “Materially impaired” as used in the definition of “under the influence of an intoxicant” in s. 939.22 (42) does not have a technical or peculiar meaning in the law beyond the time-tested explanations in standard jury instructions. Therefore, the circuit court’s response to the jury question to give all words not otherwise defined their ordinary meaning was not error, comported with s. 990.01, and did not constitute an erroneous exercise of discretion. State v. Hubbard, 2008 WI 92, 313 Wis. 2d 1, 752 N.W.2d 839, 06-2753.

940.285 940.285 Abuse of individuals at risk.

940.285(1) (1) Definitions. In this section:

940.285(1)(ag) (ag) “Abuse” means any of the following:

940.285(1)(ag)1. 1. Physical abuse, as defined in s. 46.90 (1) (fg).

940.285(1)(ag)2. 2. Emotional abuse, as defined in s. 46.90 (1) (cm).

940.285(1)(ag)3. 3. Sexual abuse, as defined in s. 46.90 (1) (gd).

940.285(1)(ag)4. 4. Treatment without consent, as defined in s. 46.90 (1) (h).

940.285(1)(ag)5. 5. Unreasonable confinement or restraint, as defined in s. 46.90 (1) (i).

940.285(1)(ag)6. 6. Deprivation of a basic need for food, shelter, clothing, or personal or health care, including deprivation resulting from the failure to provide or arrange for a basic need by a person who has assumed responsibility for meeting the need voluntarily or by contract, agreement, or court order.

940.285(1)(am) (am) “Adult at risk” has the meaning given in s. 55.01 (1e).

940.285(1)(dc) (dc) “Elder adult at risk” has the meaning given in s. 46.90 (1) (br).