Code Sections

Wisconsin Statutes Sections 940.225 - Sexual Assault and 948.02 - Sexual Assault of a Child

What is Prohibited?

Sexual assault in Wisconsin is divided into four levels with the first being the most serious:

• First-Degree Sexual Assault - Sexual contact or intercourse (vaginal, oral, or anal sex and the intrusion of any part of a person's body into the genital or anal openings) with a person without his or her consent (words or actions by a competent person indicating freely agreeing to sexual activity) that causes pregnancy or serious physical injury, by use of a dangerous weapon (gun, knife, dog), or is helped by another person and the sexual activity was accomplished by use or threat of violence
• Second-Degree Sexual Assault - Sexual contact or sex under any of the following circumstances:
  • Use or threat of force or violence
  • Causing injury, disease, reproductive impairment, or mental anguish
  • Sexual contact or sex with a mentally-ill, intoxicated, or unconscious person (to point can't consent)
  • Being aided by one or more person(s)
  • 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 conduct with a patient or resident of the facility
  • An employee of a child welfare agency, foster home, or shelter or a direct care or treatment services hospital or home health agency who has sexual conduct with a client at the facility
  • A correctional officer;or prison volunteer who has sexual contact or sex with an inmate (unless the person was sexually assaulted by the inmate)
  • A probation or parole officer who has intercourse or sexual contact with the individual on parole or probation who’s supervised by him or her or a subordinate
• Third-Degree Sexual Assault - Sexual intercourse or contact involving intentional ejaculation, urine, or feces of either the defendant or victim on any part of either's body (with or without clothes) for purposes of sexual humiliation or gratification
• Fourth-Degree Sexual Assault - Non-consensual sexual contact with a person involving intentional touching directly or through clothing if for sexual humiliation of the victim or sexual gratification of the defendant, includes touching of the victim's, defendant's, or another's intimate parts

Note: This law applies whether the victim is alive or dead when the assault occurs. Also, if separate sexual assaults occur, even on the same day in the same location, they're considered separate offenses and a person can be charged with both.

If the victim is a child, the Sexual Assault of a Child statute applies. This law is also divided into degrees, but only two.

• First-Degree Sexual Assault - Different felonies apply depending on the age of the victim and any bodily harm sustained by the victim:
  • Sexual contact or intercourse with a child under 13, if the incident causes physical injury to the child it's increased to a Class A felony
  • Sexual intercourse with a child under 12 or 12-16 by use or threat of force or violence
  • Sexual contact with a person under 16 by use or threat of force or violence if the defendant is at least 18 when the contact occurs
• Second-Degree Sexual Assault - sexual contact or intercourse with a person under 16 years old
• Failure to Act - Knowing that another person intends, is having, or has had sexual intercourse or contact with a child, is physically and emotionally able to prevent it, but fails to act and that failure exposes the child to the risk of sexual activity with the person OR facilitating intercourse or contact between the child and another person

Note: If the defendant believes an adult is a child, for example in a police sting operation, the state can still prosecute him or her for attempted child sexual assault.

Penalty

The penalties for the above listed sexual assault crimes are:

• Class A Felony - Life imprisonment (1st degree sexual assault of a child under 13 that causes injury)
• Class B Felony - Imprisonment for up to 60 years (1st degree sexual assault of an adult or child)
• Class C Felony - Imprisonment for up to 40 years and a fine up to $100,000 (2nd degree sexual assault of an adult or child)
• Class F Felony - Imprisonment for up to 12.5 years and a fine up to $25,000 (failure to act)
• Class G Felony - Imprisonment up to 10 years and a fine up to $25,000 (3rd degree sexual assault)
• Class A Misdemeanor - Imprisonment up to 9 months and a fine up to $10,000 (4th degree sexual assault)

Additionally, a sexual assault conviction will almost certainly get you on the national sex offender registry. This affects where you can live and work, as well as your reputation when friends find out you're on the registry. You'll need to confirm your address with the local police department for several years to the rest of your life.

Defenses

Many typical defenses, such as innocence or insanity, may apply to rape. Also, consent can be a defense to sexual assault, if the victim is of age to consent, was conscious, and did through words or overt actions agree to the activity. However, for sexual assault of a child (includes statutory rape), the consent of the child isn't relevant and isn't a defense. Unless the defendant asserts that he or she didn't consent to the sexual contact or sex, i.e. that the child raped him or her, then the issue of lack of consent is relevant and is a defense.

Also, Wisconsin law specifically says being married isn’t an automatic defense for sexual assault of adults or children, as you can still rape your wife or husband.