Section 940.225. Sexual assault.

 

(1)   First degree sexual assault. Whoever does any of the following is guilty of a Class B felony:

(a) Has sexual contact or sexual intercourse with another person without consent of that person and causes pregnancy or great bodily harm to that person.

(b) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of use of a dangerous weapon or any article used or fashioned in a manner to lead the victim reasonably to believe it to be a dangerous weapon.

(c) Is aided or abetted by one or more other persons and has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.

(2)   Second degree sexual assault. Whoever does any of the following is guilty of a Class C felony:

(a) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.

(b) Has sexual contact or sexual intercourse with another person without consent of that person and causes injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care for the victim.

(c) Has sexual contact or sexual intercourse with a person who suffers from a mental illness or deficiency which renders that person temporarily or permanently incapable of appraising the person's conduct, and the defendant knows of such condition.

(cm) Has sexual contact or sexual intercourse with a person who is under the influence of an intoxicant to a degree which renders that person incapable of giving consent if the defendant has actual knowledge that the person is incapable of giving consent and the defendant has the purpose to have sexual contact or sexual intercourse with the person while the person is incapable of giving consent.

(d) Has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.

(f) Is aided or abetted by one or more other persons and has sexual contact or sexual intercourse with another person without the consent of that person.

(g) Is an employee of a facility or program under s. 940.295 (2) (b) , (c) , (h) or (k) and has sexual contact or sexual intercourse with a person who is a patient or resident of the facility or program.

(h) Has sexual contact or sexual intercourse with an individual who is confined in a correctional institution if the actor is a correctional staff member. This paragraph does not apply if the individual with whom the actor has sexual contact or sexual intercourse is subject to prosecution for the sexual contact or sexual intercourse under this section.

(i) Has sexual contact or sexual intercourse with an individual who is on probation, parole, or extended supervision if the actor is a probation, parole, or extended supervision agent who supervises the individual, either directly or through a subordinate, in his or her capacity as a probation, parole, or extended supervision agent or who has influenced or has attempted to influence another probation, parole, or extended supervision agent's supervision of the individual. This paragraph does not apply if the individual with whom the actor has sexual contact or sexual intercourse is subject to prosecution for the sexual contact or sexual intercourse under this section.

(j) Is a licensee, employee, or nonclient resident of an entity, as defined in s. 48.685 (1) (b) or 50.065 (1) (c) , and has sexual contact or sexual intercourse with a client of the entity.

(3)   Third degree sexual assault. Whoever has sexual intercourse with a person without the consent of that person is guilty of a Class G felony. Whoever has sexual contact in the manner described in sub. (5) (b) 2. or 3. with a person without the consent of that person is guilty of a Class G felony.

(3m)   Fourth degree sexual assault. Except as provided in sub. (3) , whoever has sexual contact with a person without the consent of that person is guilty of a Class A misdemeanor.

(4)   Consent. “Consent", as used in this section, means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact. Consent is not an issue in alleged violations of sub. (2) (c) , (cm) , (d) , (g) , (h) , and (i) . The following persons are presumed incapable of consent but the presumption may be rebutted by competent evidence, subject to the provisions of s. 972.11 (2) :

(b) A person suffering from a mental illness or defect which impairs capacity to appraise personal conduct.

(c) A person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

(5)   Definitions. In this section:

(abm) “Client" means an individual who receives direct care or treatment services from an entity.

(acm) “Correctional institution" means a jail or correctional facility, as defined in s. 961.01 (12m) , a juvenile correctional facility, as defined in s. 938.02 (10p) , or a juvenile detention facility, as defined in s. 938.02 (10r) .

(ad) “Correctional staff member" means an individual who works at a correctional institution, including a volunteer.

(ag) “Inpatient facility" has the meaning designated in s. 51.01 (10) .

(ai) “Intoxicant" means any alcohol beverage, hazardous inhalant, controlled substance, controlled substance analog, or other drug, or any combination thereof.

(ak) “Nonclient resident" means an individual who resides, or is expected to reside, at an entity, who is not a client of the entity, and who has, or is expected to have, regular, direct contact with the clients of the entity.

(am) “Patient" means any person who does any of the following:

1. Receives care or treatment from a facility or program under s. 940.295 (2) (b) , (c) , (h) or (k) , from an employee of a facility or program or from a person providing services under contract with a facility or program.

2. Arrives at a facility or program under s. 940.295 (2) (b) , (c) , (h) or (k) for the purpose of receiving care or treatment from a facility or program under s. 940.295 (2) (b) , (c) , (h) or (k) , from an employee of a facility or program under s. 940.295 (2) (b) , (c) , (h) or (k) , or from a person providing services under contract with a facility or program under s. 940.295 (2) (b) , (c) , (h) or (k) .

(ar) “Resident" means any person who resides in a facility under s. 940.295 (2) (b) , (c) , (h) or (k) .

(b) “Sexual contact" means any of the following:

1. Any of the following types of intentional touching, whether direct or through clothing, if that intentional touching is either for the purpose of sexually degrading; or for the purpose of sexually humiliating the complainant or sexually arousing or gratifying the defendant or if the touching contains the elements of actual or attempted battery under s. 940.19 (1) :

a. Intentional touching by the defendant or, upon the defendant's instruction, by another person, by the use of any body part or object, of the complainant's intimate parts.

b. Intentional touching by the complainant, by the use of any body part or object, of the defendant's intimate parts or, if done upon the defendant's instructions, the intimate parts of another person.

2. Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant or, upon the defendant's instruction, by another person upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant.

3. For the purpose of sexually degrading or humiliating the complainant or sexually arousing or gratifying the defendant, intentionally causing the complainant to ejaculate or emit urine or feces on any part of the defendant's body, whether clothed or unclothed.

(c) “Sexual intercourse" includes the meaning assigned under s. 939.22 (36) as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required.

(d) “State treatment facility" has the meaning designated in s. 51.01 (15) .

(6)   Marriage not a bar to prosecution. A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant.

(7)   Death of victim. This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.

1975 c. 184 , 421 ; 1977 c. 173 ; 1979 c. 24 , 25 , 175 , 221 ; 1981 c. 89 , 308 , 309 , 310 , 311 ; 1985 a. 134 ; 1987 a. 245 , 332 , 352 ; 1987 a. 403 ss. 235 , 236 , 256 ; 1993 a. 445 ; 1995 a. 69 ; 1997 a. 220 ; 2001 a. 109 ; 2003 a. 51 ; 2005 a. 273 , 344 , 388 , 435 , 436 ; 2013 a. 83 . Legislative Council Note, 1981: Presently, [in sub. (5) (a)] the definition of “sexual intercourse" in the sexual assault statute includes any intrusion of any part of a person's body or of any object into the genital or anal opening of another person. This proposal clarifies that the intrusion of the body part or object may be caused by the direct act of the offender (defendant) or may occur as a result of an act by the victim which is done in compliance with instructions of the offender (defendant). [Bill 630-S] Failure to resist is not consent under sub. (4). State v. Clark, 87 Wis. 2d 804 , 275 N.W.2d 715 (1979). Injury by conduct regardless of life is not a lesser-included crime of first-degree sexual assault. Hagenkord v. State, 94 Wis. 2d 250 , 287 N.W.2d 834 (Ct. App. 1979). Separate acts of sexual intercourse, each different in kind from the others and differently defined in the statutes, constitute separate chargeable offenses. State v. Eisch, 96 Wis. 2d 25 , 291 N.W.2d 800 (1980). See also State v. Ziegler, 2012 WI 73 , 342 Wis. 2d 256 , 816 N.W.2d 238 , 10-2514 . The trial court did not err in denying the accused's motions to compel psychiatric examination of the victim and for discovery of the victim's past addresses. State v. Lederer, 99 Wis. 2d 430 , 299 N.W.2d 457 (Ct. App. 1980). The verdict was unanimous in a rape case even though the jury was not required to specify whether the sexual assault was vaginal or oral. State v. Lomagro, 113 Wis. 2d 582 , 335 N.W.2d 583 (1983). A jury instruction that touching the “vaginal area" constituted sexual contact was correct. State v. Morse, 126 Wis. 2d 1 , 374 N.W.2d 388 (Ct. App. 1985). “Unconscious" as used in sub. (2) (d) is a loss of awareness that may be caused by sleep. State v. Curtis, 144 Wis. 2d 691 , 424 N.W.2d 719 (Ct. App. 1988). 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). 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). 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). 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). Convictions under both 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). A defendant's lack of intent to make a victim believe that he 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). 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). Convictions under both 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). “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 , N.W.2d (Ct. App. 1993). 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). 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). 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). Sub. (2) (c) is not unconstitutionally vague. State v. Smith, 215 Wis. 2d 84 , 572 N.W.2d 496 (Ct. App. 1997), 96-2961 . 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 . 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 DHFS. 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 . Expert testimony is not required in every case to establish the existence of a mental illness or deficiency rendering the victim unable to appraise his or her conduct under sub. (2) (c). State v. Perkins, 2004 WI App 213 , 277 Wis. 2d 243 , 689 N.W.2d 684 , 03-3296 . 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 . 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 . 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 . 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 . One who has sexual contact or intercourse with a dead person cannot be charged with 1st- or 2nd-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 . 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 . Conviction on 2 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). A conviction for attempted 1st-degree sexual assault based on circumstantial evidence did not deny due process. Upshaw v. Powell, 478 F. Supp. 1264 (1979).