Sex Crimes: Definitions and Penalties
Wisconsin

Whoever:

• Has sexual contact or sexual intercourse with another person without consent of that person and causes pregnancy or great bodily harm to that person, or
• 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, or
• 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, or
• Commits second degree sexual assault against an individual who is 60 years of age or older regardless of whether the defendant had actual knowledge of the victim’s age. A mistake regarding the victim's age is not a defense.

Class B felony:

• Imprisonment not to exceed 60 years.

Other mandatory sentencing may apply:

• W.S.A. 939.618, “Mandatory minimum sentence for repeat serious sex crimes”

The following definitions are relevant to this crime:

• Sexual contact: 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 sexually humiliating the complainant or sexually arousing or gratifying the defendant or if the touching contains the elements of actual or attempted battery (i.e., is done with intent to cause bodily harm to the victim or another without the consent of the harmed person):
• 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 victim’s intimate parts; or
• Intentional touching by the victim, 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; or
• Touching by the victim of the ejaculate, urine, or feces of any person upon the intentional instructions of the defendant, upon the use or threat of force or violence by the defendant, or upon an intentional act of the defendant; or
• 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 victim, if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the victim or for the purpose of sexually arousing or gratifying the defendant; or
• For the purpose of sexually degrading or humiliating the victim 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.
• Sexual intercourse: Vulvar penetration (with or without emission) 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 defendants instruction. The emission of semen is not required.
• Consent: 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.  A person suffering from a mental illness or defect which impairs capacity to appraise personal conduct and a person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act are presumed incapable of consent, but the presumption may be rebutted.
• Marriage is not a bar to prosecution.
• This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.

• Wis. Stat. §§ 940.225(1); 939.618; 939.50

Whoever:

• (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 persons 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 an adult family home, community-based residential facility, inpatient health care facility, or state treatment facility 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 agents 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 non-client resident of a child welfare agency, a hospital, a home health agency, a temporary employment agency that provides caregivers to another entity, or the board on aging and long-term care, and has sexual contact or sexual intercourse with a client of the entity.
• (k) Is a law enforcement officer and has sexual contact or sexual intercourse with any person who is detained by any law enforcement officer, or is in the custody of any law enforcement officer. This applies whether the custody is lawful or unlawful and whether the detainment or custody is actual or constructive. Consent is not an issue in an action here.

Class C felony:

• Imprisonment not to exceed 40 years;
• Fine not to exceed $100,000;
• Or both.

Other mandatory sentencing may apply:

• W.S.A. 939.618, “Mandatory minimum sentence for repeat serious sex crimes”

• See definitions under Sexual Assault in the First Degree, above.
• Consent is not an issue in alleged violations of subsections (2)I, (cm), (d), (g), (h), and (i) above. 
• Law enforcement officer: Any person employed by the state or any political subdivision of the state, for the purpose of detecting and preventing crime and enforcing laws or ordinances and who is authorized to make arrests for violations of the laws or ordinances that the person is employed and sworn to enforce. “Law enforcement officer” includes a university police officer. Wis. Stat. § 175.42(1)(b).

• Wis. Stat. § 940.225(2)

• Sexual intercourse with a person without the consent of that person.
• Sexual contact in the manner described below with a person without the consent of that person:
• 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.
• 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.

Class G felony:

• Imprisonment not to exceed 10 years;
• Fine not to exceed $25,000;
• Or both.

• See definitions under Sexual Assault in the First Degree, above.

• Wis. Stat. §§ 940.225(3); 939.51

• Except as provided in Sexual Assault in the Third Degree, having sexual contact with a person without the consent of that person.

Class A misdemeanor:

• Imprisonment not to exceed 9 months;

• Fine not to exceed $10,000;

• Or both.

• See definitions under Sexual Assault in the First Degree, above.

• Wis. Stat. §§ 940.225(3m); 939.51

• First degree:
• Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years and causes great bodily harm to the person is guilty of a Class A felony and subject to a 25 year mandatory minimum;
• Whoever has sexual intercourse with a person who has not attained the age of 12 years is guilty of a Class B felony and subject to a 25 year mandatory minimum;
• Whoever has sexual intercourse with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony and subject to a 25 year mandatory minimum;
• Whoever has sexual contact with a person who has not attained the age of 16 years by use or threat of force or violence is guilty of a Class B felony if the actor is at least 18 years of age when the sexual contact occurs and is subject to a 5 year mandatory minimum; or
• Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years is guilty of a Class B felony.
• Second degree:
• Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class C felony.
• Whoever has sexual contact with a child who has attained the age of 15 years but has not attained the age of 16 years, or whoever has sexual intercourse with a child who has attained the age of 15 years, is guilty of a Class A misdemeanor if the actor has not attained the age of 19 years when the violation occurs. This section does not apply if the actor is the child’s spouse.
• Failure to act:
• A person responsible for the welfare of a child under 16 is guilty of a Class F felony if that person has knowledge that another person intends to have, is having or has had sexual intercourse or sexual contact with the child, is physically and emotionally capable of taking action which will prevent the intercourse or contact from taking place or being repeated, fails to take that action and 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.
• Underage sexual activity:
  • Whoever has sexual contact with a child who has attained the age of 15 years but has not attained the age of 16 years, or whoever has sexual intercourse with a child who has attained the age of 15 years, is guilty of a Class A misdemeanor if the actor has not attained the age of 19 years when the violation occurs. This section does not apply if the actor is the child's spouse.

• Class A felony:
• Life imprisonment.
• Class B felony:
• Imprisonment not to exceed 60 years.
• Class C felony:
• Imprisonment not to exceed 40 years;
• Fine not to exceed $100,000;
• Or both.
• Class F felony:
• Imprisonment not to exceed 12 years 6 months;
• Fine not to exceed $25,000;
• Or both.
• Class A misdemeanor:
• Imprisonment not to exceed 9 months;
• Fine not to exceed $10,000;
• Or both.
• Subject to mandatory minimum sentences for child sex offenses (see above).
• Additional penalties for engaging in repeated acts of sexual assault of the same child under Wis. Stat. § 948.025.

The following definitions are relevant to this crime:

• Sexual contact: Any of the following types of intentional touching, whether direct or through clothing, if that intentional touching is either for the purpose of sexual degrading or sexually humiliating the victim or sexually arousing or gratifying the defendant:
• 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 victim’s intimate parts.
• Intentional touching by the victim, by the use of any body part or object, of the defendants intimate parts or, if done upon the defendant’s instructions, the intimate parts of another person.

• Or, touching by the victim of the ejaculate, urine, or feces of any person upon the intentional instructions of the defendant, upon the use or threat of force or violence by the defendant, or upon an intentional act of the defendant.
• Or, 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 victim, if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the victim or for the purpose of sexually arousing or gratifying the defendant.
• Or, For the purpose of sexually degrading or humiliating the victim or sexually arousing or gratifying the defendant, intentionally causing the victim to ejaculate or emit urine or feces on any part of the defendant’s body, whether clothed or unclothed.
• Sexual intercourse: Vulvar penetration 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 defendants instruction. The emission of semen is not required.
• Marriage is not a bar to prosecution.
• This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.

• Wis. Stat. §§ 948.02; 948.093; 939.616

(1) Whoever does any of the following with knowledge of the character and content of the sexually explicit conduct involving the child:

• (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; or
• (b) Records or displays in any way a child engaged in sexually explicit conduct.

(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 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.

(2) A person responsible for a child’s welfare who knowingly permits, allows or encourages the child to engage in sexually explicit conduct.

              (2p)(a) Except as provided in par. (b), a person who violates sub. (1), (1m), or (2) is guilty of a Class C felony.

              (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.

(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.

• Class C felony:
  • Imprisonment not to exceed 40 years
  • Fine not to exceed $100,000
  • Or both.
• Class F Felony in certain circumstances if the person is under 18 years of age when the offense occurs:
  • Imprisonment not to exceed 12 years and 6 months
  • Fine not to exceed $25,000
  • Or both.
• If the defendant has reasonable cause to believe that the child has attained 18 years of age, it is an affirmative defense. Defendant has the burden of proof.

The following definitions are relevant to this crime:

• See definitions under Sexual Assault in the First Degree, above. 

• Wis. Stat. § 948.05

• Any person who is or who holds himself or herself out to be a therapist and who intentionally has sexual contact with a patient or client during any ongoing therapist-patient or therapist-client relationship, regardless of whether it occurs during any treatment, consultation, interview or examination, is guilty of a Class F felony.
  • Consent is not relevant under this subsection.

• Class F felony:
• Imprisonment not to exceed 12 years and 6 months
• Fine not to exceed $25,000
• Or both.

The following definitions are relevant to this crime:

• See definitions under Sexual Assault in the First Degree, above.
• Therapist: A physician, psychologist, social worker, marriage and family therapist, professional counselor, nurse, chemical dependency counselor, member of the clergy, or other person, whether or not licensed or certified by the state, who performs or purports to perform psychotherapy.

• Wis. Stat. § 940.22

• Whoever does any of the following is guilty of a Class C felony
  • Has sexual contact or sexual intercourse with a child for whom the actor is a foster parent; or
  • Has sexual contact or sexual intercourse with a child who is placed in any of the following facilities if the actor works or volunteers at the facility or is directly or indirectly responsible for managing it:
    • A shelter care facility;
    • A group home; or
    • A residential care center for children and youth operated by a child welfare agency.

Class C felony:

• Imprisonment not to exceed 40 years;

• Fine not to exceed $ 100,000;

• Or both.

The following definitions are relevant to this crime:

• See definitions under Sexual Assault of a Child, above.
• Child: A person who has not attained the age of 18 years, except that for purposes of prosecuting a person who is alleged to have violated a state or federal criminal law, “child” does not include a person who has attained the age of 17.

• Wis. Stat. § 948.085

• Whoever has sexual contact or sexual intercourse with a child who has attained the age of 16 years and who is not the defendants spouse is guilty of a Class H felony if all of the following apply:
• The child is enrolled as a student in a school or a school district, and
• The defendant is a member of the school staff of the school or school district in which the child is enrolled.
• A person who has attained the age of 21 years and engages in an occupation or participates in a volunteer position that requires him to work or interact directly with children (including, teaching, child care, coaching, counselor, youth organization, parks or playground recreation, or school bus driving) may not have sexual contact or sexual intercourse with a child who has attained the age of 16 years, who is not the person’s spouse and with whom the person works or interacts through that occupation or volunteer position.

Class H felony:

• Imprisonment not to exceed 6 years;
• Fine not to exceed $ 10,000;
• Or both.

• School: A public or private elementary or secondary school, or a tribal school.
• School staff: Any person who provides services to a school or a school board, including an employee of a school or a school board and a person who provides services to a school or a school board under a contract.
• See definitions under Sexual Assault in the First Degree, above.

• Wis. Stat. § 948.095

Whoever has sexual contact with a child who has attained the age of 15 years but has not attained the age of 16 years, or whoever has sexual intercourse with a child who has attained the age of 15 years, is guilt of a Class A misdemeanor if the actor has not attained the age of 19 years when the violation occurs.

• Class A misdemeanor:
  • Imprisonment not to exceed 9 months;
  • Fine not to exceed $10,000;
  • Or both.

• See definitions under Sexual Assault of a Child, above.
• This section does not apply if the actor is the child's spouse.

• Wis. Stat. § 948.093

• Wis. Stat. § 948.093

• “Statutory rape” is commonly used to refer to sexual penetration that is illegal because it involves a youth.
• Wisconsin has no specific statutory rape statute, but this concept is captured under “Sexual Intercourse with a Child Age 16 or Older”: 
• Whoever has sexual intercourse with a child who is not the defendant’s spouse and who has attained the age of 16 years is guilty of a Class A misdemeanor if the defendant has attained the age of 19 years when the violation occurs.
• Child:
• A person who has not attained the age of 18 years, except that for purposes of prosecuting a person who is alleged to have violated a state or federal criminal law, “child” does not include a person who has attained the age of 17.
• Also, see “Sexual Assault of a Child”:
• Whoever has sexual intercourse with a person who has not attained the age of 12 years is guilty of a Class B felony.
• Also, see “Underage sexual activity”:
  • Whoever has sexual contact with a child who has attained the age of 15 years but has not attained the age of 16 years, or whoever has sexual intercourse with a child who has attained the age of 15 years, is guilty of a Class A misdemeanor if the actor has not attained the age of 19 years when the violation occurs. This section does not apply if the actor is the child's spouse.

• Class A misdemeanor:
• Imprisonment not to exceed 9 months;
• Fine not to exceed $10,000;
• Or both.
• Class B felony:
  • Imprisonment not to exceed 60 years.

• See definitions under Sexual Assault of a Child, above.

• Wis. Stat. § 948.09

• Wisconsin does not have an anti-sodomy law on the books.
• Any state laws that outright prohibit sodomy are unconstitutional under Lawrence v. Texas, 539 U.S. 588 (2003).

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