Section 940.06. Second-degree reckless homicide.

 

(1)  Whoever recklessly causes the death of another human being is guilty of a Class D felony.

(2)  Whoever recklessly causes the death of an unborn child is guilty of a Class D felony.

1987 a. 399 ; 1997 a. 295 ; 2001 a. 109 . Judicial Council Note, 1988: Second-degree reckless homicide is analogous to the prior offense of homicide by reckless conduct. The revised statute clearly requires proof of a subjective mental state, i.e., criminal recklessness. See s. 939.24 and the NOTE thereto. [Bill 191-S] Second-degree reckless homicide is not a lesser included offense of homicide by intoxicated use of a motor vehicle. State v. Lechner, 217 Wis. 2d 392 , 576 N.W.2d 912 (1998), 96-2830 . The common law "year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42 , 261 Wis. 2d 249 , 661 N.W.2d 381 , 01-3063 . The second-degree reckless homicide statute requires both the creation of an objectively unreasonable and substantial risk of human death or great bodily harm and the actor's subjective awareness of that risk. The circuit court's refusal to instruct the jury about the effect of a parent's sincere belief in prayer treatment for their child on the subjective awareness element of second-degree reckless homicide, did not undermine the parents' ability to defend themselves. The second-degree reckless homicide statute does not require that the actor be subjectively aware that his or her conduct is a cause of the death of his or her child. The statute and the jury instructions require only that the actor be subjectively aware that his or her conduct created the unreasonable and substantial risk of death or great bodily harm. State v. Neumann, 2013 WI 58 , 348 Wis. 2d 455 , 832 N.W.2d 560 , 11-1044 . Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).