Consent Laws
Wisconsin

“Consent” 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.

A person is presumed (but the presumption may be rebutted by competent evidence) incapable of consent to sexual contact or sexual intercourse in circumstances where:

• (a) the person suffers from a mental illness or defect which impairs capacity to appraise personal conduct; or
• (b) the person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. Wis. Stat. Ann. § 940.225(4).

Yes, consent must be “freely given.” Wis. Stat. Ann. § 940.225(4).

18 years old. Wis. Stat. Ann. § 948.01(1). Wis. Stat. Ann. § 948.09.

Depending on the age difference between the victim and actor, may affect whether the actor is guilty of a misdemeanor instead of a felony.

An actor who has sexual contact with a child who is 15 but less than 16, or an actor who has sexual intercourse with a child who has attained age 15, is guilty of a Class A misdemeanor if the actor is less than 19 years old at the time of the sexual contact or sexual intercourse. Wis. Stat. Ann. § 948.093.

An actor who 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. Wis. Stat. Ann. § 948.09.

No, but can impact whether the actor is guilty of First Degree Sexual Assault or Second Degree Sexual Assault. Wis. Stat. Ann. § 940.225(1)(d).  A person who commits a violation that would otherwise classify as second degree sexual assault is guilty of first degree sexual assault if the victim is 60 years of age or older. Id. This applies irrespective of whether the defendant had actual knowledge of the victim's age; a mistake regarding the victim's age is not a defense to a prosecution under this paragraph. Id.

Yes, a person suffering from a “mental illness or defect” is presumed incapable of consent. Wis. Stat. Ann. § 940.225(4).

“Mental illness or defect” is not defined in the statute, but has a “meaning within the common understanding of the jury” under Wisconsin case law.  State v. Perkins, 689 N.W.2d 684, 277 Wis.2d 243 (Wis. Ct. App. 2004).

Yes, a person who is physically unable to communicate unwillingness to an act is presumed incapable of consent. Wis. Stat. Ann. § 940.225(4).

Yes, a person who is unconscious is presumed incapable of consent. Wis. Stat. Ann. § 940.225(4).

Yes, if the victim 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. Wis. Stat. Ann. § 940.225(2).

Yes, there are several special relationships between the victim and actor that would impact the victim’s ability to consent and therefore make it a crime to engage in sexual contact with a person.

Special relationships include:

• (a) a therapist-patient relationship;
• (b) an employee of an adult family home, community-based residential facility, an in-patient health care facility, or a state treatment facility who has sexual contact or sexual intercourse with a patient or resident of the facility;
• (c) an employee of certain “entities” as defined in 48.685(1)(b) and 50.065(1)(c) who has sexual contact or sexual intercourse with a client at the entity.  Entity is defined under section 48.685(1)(b) to include a child welfare agency; foster home; interim caretaker; successor guardian; group home; shelter care facility; temporary employment agency; organization that facilitates delegations of the care and custody of children.   Entity is defined under section 50.065(1)(c) to include a facility, organization or service that provides direct care or treatment services to clients or an agency that employs or contracts with an individual to provide personal care services, including a hospital, home health agency, temporary employment agency that provides caregivers to another entity, and the board on aging and long-term care;
• (d) a correctional staff member who has sexual contact or sexual intercourse with an individual who is confined in a correctional institution (unless the person was sexually assaulted by the inmate); 
• (e) a probation, parole, or extended supervision agent who has sexual intercourse or sexual contact with the individual on parole, probation, or extended supervision who is supervised by him or her or a subordinate; and
• (f) 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. Wis. Stat. Ann. §§ 940.22; 940.225; 940.295.

Yes, provided that the person is of age to consent, and did so through words or overt actions agreeing to the sexual activity. However, consent is not a defense to sex crimes if a defendant:    

• 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;
• 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;
• Has sexual contact or sexual intercourse with a person who the defendant knows is unconscious;
• Is an employee of an adult family home, a community-based residential facility, an inpatient healthcare facility, or a state treatment facility or program, and has sexual contact or sexual intercourse with a person who is a patient or resident of the facility or program;
• Has sexual contact or sexual intercourse with an individual who is confined in a correctional institution if the actor is a correctional staff member; 
• 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; or
• Is a law enforcement officer and has sexual contact or sexual intercourse wtih any person who is detained by any law enforcement officer or is in the custody of any law enforcement officer (which applies whether the custody is lawful or unlawful and whether the detainment or custody is actual or constructive).  Wis. Stat. Ann. §§ 940.225(2) & (4).

An intoxicated or a drugged condition of the actor is a defense only if such condition is involuntarily produced and does one of the following: (1) Renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed; (2) Negatives the existence of a state of mind essential to the crime. Wis. Stat. Ann. §939.42.

Yes, for sex crimes in which specific intent is an element of the crime, voluntary intoxication can serve to negate specific intent if the defendant’s mental faculties are so overcome by intoxicants that the defendant is incapable of forming the intent requisite to satisfy the specific intent element of the crime or that the intoxication was so extreme as to suspend entirely the power of reason. U.S. v. Boyles, 57 F.3d 535 (7^th Cir. 1995).