Title IX.

Crimes Against the Person, Public Decency and Morals

§261. Rape—Acts Constituting.

Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances:

1. Where the female is under the age of eighteen years;

2. Where she is incapable, through lunacy or other unsoundness of mind, whether temporary or permanent, of giving legal consent;

3. Where she resists, but her resistance is overcome by force or violence;

4. Where she is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution, or by any intoxicating narcotic, or anesthetic, substance, administered by or with the privity of the ascused;

5. Where she is at the time unconscious of the nature of the act, and this is known to the accused;

6. Where she submits under the belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce such belief. Leg.H. 1872, 1889 p. 223, 1897 p. 201, 1913 p. 212.

See §290 infra as to registering with sheriff or chief of police by one convicted under div. 3 and 4 of this section.

Assault with intent to rape, see ante §220.

Anno. 22 Cal.J. 357-359; 52 C.J. 1005 §2; 22 RCL. 1171: Rape A.Dig. §1; McK.D. §2-7.

New—W.S.C.L. Crimes §§44, 67.

940.01 First-degree intentional homicide.

(1)  Offenses.

(a) Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.

(b) Except as provided in sub. (2), whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class A felony.

(2) Mitigating circumstances. The following are affirmative defenses to prosecution under this section which mitigate the offense to 2nd-degree intentional homicide under s. 940.05:

(a) Adequate provocation. Death was caused under the influence of adequate provocation as defined in s. 939.44.

(b) Unnecessary defensive force. Death was caused because the actor believed he or she or another was in imminent danger of death or great bodily harm and that the force used was necessary to defend the endangered person, if either belief was unreasonable.

(c) Prevention of felony. Death was caused because the actor believed that the force used was necessary in the exercise of the privilege to prevent or terminate the commission of a felony, if that belief was unreasonable.

(d) Coercion; necessity. Death was caused in the exercise of a privilege under s. 939.45 (1).

(3) Burden of proof. When the existence of an affirmative defense under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the defense did not exist in order to sustain a finding of guilt under sub. (1).

History: 1987 a. 399; 1997 a. 295.

Judicial Council Note, 1988: First-degree intentional homicide is analogous to the prior offense of first-degree murder. Sub. (2) formerly contained a narrower definition of "intent to kill" than the general definition of criminal intent. That narrower definition has been eliminated in the interest of uniformity. Section 939.23 now defines the intent referred to.

The affirmative defenses specified in sub. (2) were formerly treated in s. 940.05. This caused confusion because they seemed to be elements of manslaughter rather than defenses to first-degree murder. Sub. (2) specifies only those affirmative defenses which mitigate an intentional homicide from first to 2nd degree. Other affirmative defenses are a defense to 2nd-degree intentional homicide also, such as self-defense, i.e., when both beliefs specified in sub. (2) (b) are reasonable. Section 939.48.

The prosecution is required to prove only that the defendant's acts were a substantial factor in the victim's death; not the sole cause. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992).

The trial court must apply an objective reasonable view of the evidence test to determine whether under sub. (3) a mitigating affirmative defense "has been placed in issue" before submitting the issue to the jury. In Interest of Shawn B. N. 173 Wis. 2d 343, 497 N.W.2d 141 (Ct. App. 1992).

Imperfect self-defense contains an initial threshold element requiring a reasonable belief that the defendant was terminating an unlawful interference with his or her person. State v. Camacho, 176 Wis. 2d 860, 501 N.W.2d 380 (1993).

Sub. (1) (a) cannot be applied against a mother for actions taken against a fetus while pregnant as the applicable definition of human being under s. 939.22 (16) is limited to one who is born alive. Sub. (1) (b) does not apply because s. 939.75 (2) (b) excludes from its application actions by a pregnant woman. State v. Deborah J.Z. 228 Wis. 2d 468, 596 N.W.2d 490 (Ct. App. 1999), 96-2797.

Barring psychiatric or psychological opinion testimony on the defendant's capacity to form an intent to kill is constitutional. Haas v. Abrahamson, 910 F. 2d 384 (1990) citing Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980).

A privilege for excusable homicide by accident or misfortune is incorporated in s. 939.45 (6). Accident is a defense that negatives intent. If a person kills another by accident, the killing could not have been intentional. Accident must be disproved beyond a reasonable doubt when a defendant raises it as a defense. When the state proves intent to kill beyond a reasonable doubt, it necessarily disproves accident. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064.

A defendant may demonstrate that he or she was acting lawfully, a necessary element of an accident defense, by showing that he or she was acting in lawful self-defense. Although intentionally pointing a firearm at another constitutes a violation of s. 941.20, under s. 939.48 (1) a person is privileged to point a gun at another person in self-defense if the person reasonably believes that the threat of force is necessary to prevent or terminate what he or she reasonably believes to be an unlawful interference. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064.

A defendant seeking a jury instruction on perfect self-defense to a charge of first-degree intentional homicide must satisfy an objective threshold showing that he or she reasonably believed that he or she was preventing or terminating an unlawful interference with his or her person and reasonably believed that the force used was necessary to prevent imminent death or great bodily harm. A defendant seeking a jury instruction on unnecessary defensive force under sub. (2) (b) to a charge of first-degree intentional homicide is not required to satisfy the objective threshold. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99-3071.

A defendant who claims self-defense to a charge of first-degree intentional homicide may use evidence of a victim's violent character and past acts of violence to show a satisfactory factual basis that he or she actually believed he or she was in imminent danger of death or great bodily harm and actually believed that the force used was necessary to defend himself or herself, even if both beliefs were unreasonable. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99-3071.

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.

An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.

Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was "wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.

Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).

State v. Camacho: The Judicial Creation of an Objective Element to Wisconsin's Law of Imperfect Self-defense Homicide. Leiser. 1995 WLR 742.

940.02 First-degree reckless homicide.

(1) Whoever recklessly causes the death of another human being under circumstances which show utter disregard for human life is guilty of a Class B felony.

(1m) Whoever recklessly causes the death of an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman who is pregnant with that unborn child or another is guilty of a Class B felony.

(2) Whoever causes the death of another human being under any of the following circumstances is guilty of a Class C felony:

(a) By manufacture, distribution or delivery, in violation of s. 961.41, of a controlled substance included in schedule I or II under ch. 961, of a controlled substance analog of a controlled substance included in schedule I or II under ch. 961 or of ketamine or flunitrazepam, if another human being uses the controlled substance or controlled substance analog and dies as a result of that use. This paragraph applies:

1. Whether the human being dies as a result of using the controlled substance or controlled substance analog by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance or controlled substance analog.

2. Whether or not the controlled substance or controlled substance analog is mixed or combined with any compound, mixture, diluent or other substance after the violation of s. 961.41 occurs.

3. To any distribution or delivery described in this paragraph, regardless of whether the distribution or delivery is made directly to the human being who dies. If possession of the controlled substance included in schedule I or II under ch. 961, of the controlled substance analog of the controlled substance included in schedule I or II under ch. 961 or of the ketamine or flunitrazepam is transferred more than once prior to the death as described in this paragraph, each person who distributes or delivers the controlled substance or controlled substance analog in violation of s. 961.41 is guilty under this paragraph.

(b) By administering or assisting in administering a controlled substance included in schedule I or II under ch. 961, a controlled substance analog of a controlled substance included in schedule I or II of ch. 961 or ketamine or flunitrazepam, without lawful authority to do so, to another human being and that human being dies as a result of the use of the substance. This paragraph applies whether the human being dies as a result of using the controlled substance or controlled substance analog by itself or with any compound, mixture, diluent or other substance mixed or combined with the controlled substance or controlled substance analog.

History: 1987 a. 339, 399; 1995 a. 448; 1997 a. 295; 1999 a. 57; 2001 a. 109.

Judicial Council Note, 1988: [As to sub. (1)] First-degree reckless homicide is analogous to the prior offense of 2nd-degree murder. The concept of "conduct evincing a depraved mind, regardless of human life" has been a difficult one for modern juries to comprehend. To avoid the mistaken connotation that a clinical mental disorder is involved, the offense has been recodified as aggravated reckless homicide. The revision clarifies that a subjective mental state, i.e., criminal recklessness, is required for liability. See s. 939.24. The aggravating element, i.e., circumstances which show utter disregard for human life, is intended to codify judicial interpretations of "conduct evincing a depraved mind, regardless of life". State v. Dolan, 44 Wis. 2d 68 (1969); State v. Weso, 60 Wis. 2d 404 (1973).

Under prior law, adequate provocation mitigated 2nd-degree murder to manslaughter. State v. Hoyt, 21 Wis. 2d 284 (1964). Under this revision, the analogs of those crimes, i.e., first-degree reckless and 2nd-degree intentional homicide, carry the same penalty; thus mitigation is impossible. Evidence of provocation will usually be admissible in prosecutions for crimes requiring criminal recklessness, however, as relevant to the reasonableness of the risk (and, in prosecutions under this section, whether the circumstances show utter disregard for human life). Since provocation is integrated into the calculus of recklessness, it is not an affirmative defense thereto and the burdens of production and persuasion stated in s. 940.01 (3) are inapplicable. [Bill 191-S]

Possession of a controlled substance is not a lesser included offense of sub. (2) (a). State v. Clemons, 164 Wis. 2d 506, 476 N.W.2d 283 (Ct. App. 1991).

Generally expert evidence of personality dysfunction is irrelevant to the issue of intent, although it might be admissible in very limited circumstances. State v. Morgan, 195 Wis. 2d 388, 536 N.W.2d 425 (Ct. App. 1995), 93-2611.

Utter disregard for human life is an objective standard of what a reasonable person in the defendant's position is presumed to have known and is proved through an examination of the acts that caused death and the totality of the circumstances surrounding the conduct. State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999), 98-2171.

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 punishments for first-degree reckless homicide by delivery of a controlled substance under s. 940.02 (2) (a) and contributing to the delinquency of a child with death as a consequence in violation of s. 948.40 (1) and (4) (a) are not multiplicitous when both convictions arise from the same death. State v. Patterson, 2010 WI 130, 329 Wis. 2d 599, 790 N.W.2d 909, 08-1968.

An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.

Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was "wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.

While swerving has been held to show regard for life, the defendant's conduct must be considered in light of the totality of the circumstances. When the defendant was driving over eighty miles per hour on a major, well-traveled city street after consuming alcohol and prescription pills and never braked or slowed down before running a red light, an ineffectual swerve failed to demonstrate a regard for human life. State v. Geske, 2012 WI App 15, 339 Wis. 2d 170, 810 N.W.2d 226, 10-2808.

Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).

940.03 Felony murder.

Whoever causes the death of another human being while committing or attempting to commit a crime specified in s. 940.19, 940.195, 940.20, 940.201, 940.203, 940.225 (1) or (2) (a), 940.30, 940.31, 943.02, 943.10 (2), 943.23 (1g), or 943.32 (2) may be imprisoned for not more than 15 years in excess of the maximum term of imprisonment provided by law for that crime or attempt.

History: 1987 a. 399; 2001 a. 109; 2005 a. 313.

Judicial Council Note, 1988: The prior felony murder statute (s. 940.02 (2)) did not allow enhanced punishment for homicides caused in the commission of a Class B felony. State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983). The revised statute eliminates the "natural and probable consequence" limitation and limits the offense to homicides caused in the commission of or attempt to commit armed robbery, armed burglary, arson, first-degree sexual assault or 2nd-degree sexual assault by use or threat of force or violence. The revised penalty clause allows imposition of up to 20 years' imprisonment more than that prescribed for the underlying felony. Prosecution and punishment for both offenses remain barred by double jeopardy. State v. Carlson, 5 Wis. 2d 595, 93 N.W.2d 355 (1958). [Bill 191-S]

To prove that the defendant caused the death, the state need only prove that the defendant's conduct was a substantial factor. The phrase "while committing or attempting to commit" encompasses the immediate flight from the felony. A defendant may be convicted if another person, including an intended felony victim, fires the fatal shot. State v. Oimen, 184 Wis. 2d 423, 516 N.W.2d 399 (Ct. App. 1994), State v. Rivera, 184 Wis. 2d 485, 516 N.W.2d 391 (1994) and State v. Chambers, 183 Wis. 2d 316, 515 N.W.2d 531 (Ct. App. 1994).

Attempted felony murder does not exist. Attempt requires intent and the crime of felony murder is complete without specific intent. State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998), 97-1558.

Oimen affirms that felony murder liability exists if a defendant is a party to one of the listed felonies and a death results. State v. Krawczyk, 2003 WI App 6, 259 Wis. 2d 843, 657 N.W.2d 77, 02-0156.

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.

For purposes of calculating initial confinement, felony murder is a stand-alone unclassified crime, not a penalty enhancer. State v. Mason, 2004 WI App 176, 276 Wis. 2d 434, 687 N.W.2d 526, 03-2693.

An actor causes death if his or her conduct is a substantial factor in bringing about that result. A substantial factor need not be the sole cause of death for one to be held legally culpable. Whether an intervening act was negligent, intentional or legally wrongful is irrelevant. The state must still prove beyond a reasonable doubt that the defendant's acts were a substantial factor in producing the death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.

Under the facts of this case, the court did not err in denying an intervening cause instruction. Even if the defendant could have established that the termination of the victim's life support was "wrongful" under Wisconsin law, that wrongful act would not break the chain of causation between the defendant's actions and victim's subsequent death. State v. Below, 2011 WI App 64, 333 Wis. 2d 690, 799 N.W.2d 95, 10-0798.

940.04 Abortion.

(1) Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.

(2) Any person, other than the mother, who does either of the following is guilty of a Class E felony:

(a) Intentionally destroys the life of an unborn quick child; or

(b) Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother's death was committed.

(5) This section does not apply to a therapeutic abortion which:

(a) Is performed by a physician; and

(b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and

(c) Unless an emergency prevents, is performed in a licensed maternity hospital.

(6) In this section "unborn child" means a human being from the time of conception until it is born alive.

History: 2001 a. 109; 2011 a. 217.

Aborting a child against a father's wishes does not constitute intentional infliction of emotional distress. Przybyla v. Przybyla, 87 Wis. 2d 441, 275 N.W.2d 112 (Ct. App. 1978).

Sub. (2) (a) proscribes feticide. It does not apply to consensual abortions. It was not impliedly repealed by the adoption of s. 940.15 in response to Roe v. Wade. State v. Black, 188 Wis. 2d 639, 526 N.W.2d 132 (1994).

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.

This section is cited as similar to a Texas statute that was held to violate the due process clause of the 14th amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Roe v. Wade, 410 U.S. 113 (1973).

The state may prohibit first trimester abortions by nonphysicians. Connecticut v. Menillo, 423 U.S. 9 (1975).

The viability of an unborn child is discussed. Colautti v. Franklin, 439 U.S. 379 (1979).

Poverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to the legitimate governmental objective of protecting potential life. Harris v. McRae, 448 U.S. 297 (1980).

Abortion issues are discussed. Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983); Planned Parenthood Assn. v. Ashcroft, 462 U.S. 476 (1983); Simopoulas v. Virginia, 462 U.S. 506 (1983).

The essential holding of Roe v. Wade allowing abortion is upheld, but various state restrictions on abortion are permissible. Planned Parenthood v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674 (1992).

Wisconsin's abortion statute, 940.04, Stats. 1969, is unconstitutional as applied to the abortion of an embryo that has not quickened. Babbitz v. McCann, 310 F. Supp. 293 (1970).

When U.S. supreme court decisions clearly made Wisconsin's antiabortion statute unenforceable, the issue in a physician's action for injunctive relief against enforcement became mooted, and it no longer presented a case or controversy over which the court could have jurisdiction. Larkin v. McCann, 368 F. Supp. 1352 (1974).

State regulation of abortion. 1970 WLR 933.

940.05 Second-degree intentional homicide.

(1) Whoever causes the death of another human being with intent to kill that person or another is guilty of a Class B felony if:

(a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or

(b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.

(2) In prosecutions under sub. (1), it is sufficient to allege and prove that the defendant caused the death of another human being with intent to kill that person or another.

(2g) Whoever causes the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another is guilty of a Class B felony if:

(a) In prosecutions under s. 940.01, the state fails to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist as required by s. 940.01 (3); or

(b) The state concedes that it is unable to prove beyond a reasonable doubt that the mitigating circumstances specified in s. 940.01 (2) did not exist. By charging under this section, the state so concedes.

(2h) In prosecutions under sub. (2g), it is sufficient to allege and prove that the defendant caused the death of an unborn child with intent to kill that unborn child, kill the woman who is pregnant with that unborn child or kill another.

(3) The mitigating circumstances specified in s. 940.01 (2) are not defenses to prosecution for this offense.

History: 1987 a. 399; 1997 a. 295.

Judicial Council Note, 1988: Second-degree intentional homicide is analogous to the prior offense of manslaughter. The penalty is increased and the elements clarified in order to encourage charging under this section in appropriate cases.

Adequate provocation, unnecessary defensive force, prevention of felony, coercion and necessity, which are affirmative defenses to first-degree intentional homicide but not this offense, mitigate that offense to this. When this offense is charged, the state's inability to disprove their existence is conceded. Their existence need not, however, be pleaded or proved by the state in order to sustain a finding of guilty.

When first-degree intentional homicide is charged, this lesser offense must be submitted upon request if the evidence, reasonably viewed, could support the jury's finding that the state has not borne its burden of persuasion under s. 940.01 (3). State v. Felton, 110 Wis. 2d 465, 508 (1983). [Bill 191-S]

The prosecution is required to prove only that the defendant's acts were a substantial factor in the victim's death; not the sole cause. State v. Block, 170 Wis. 2d 676, 489 N.W.2d 715 (Ct. App. 1992).

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.

Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).

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.

History: 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.

Importance of clarity in law of homicide: The Wisconsin revision. Dickey, Schultz & Fullin. 1989 WLR 1323 (1989).

940.07 Homicide resulting from negligent control of vicious animal.

Whoever knowing the vicious propensities of any animal intentionally allows it to go at large or keeps it without ordinary care, if such animal, while so at large or not confined, kills any human being who has taken all the precautions which the circumstances may permit to avoid such animal, is guilty of a Class G felony.

History: 1977 c. 173; 2001 a. 109.

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.

940.08 Homicide by negligent handling of dangerous weapon, explosives or fire.

(1) Except as provided in sub. (3), whoever causes the death of another human being by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class G felony.

(2) Whoever causes the death of an unborn child by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class G felony.

(3) Subsection (1) does not apply to a health care provider acting within the scope of his or her practice or employment.

History: 1977 c. 173; 1985 a. 293; 1987 a. 399; 1997 a. 295; 2001 a. 109; 2011 a. 2.

Judicial Council Note, 1988: The definition of the offense is broadened to include highly negligent handling of fire, explosives and dangerous weapons in addition to firearm, airgun, knife or bow and arrow. See s. 939.22 (10). [Bill 191-S]

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.

940.09 Homicide by intoxicated use of vehicle or firearm.

(1) Any person who does any of the following may be penalized as provided in sub. (1c):

(a) Causes the death of another by the operation or handling of a vehicle while under the influence of an intoxicant.

(am) Causes the death of another by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.

(b) Causes the death of another by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).

(bm) Causes the death of another by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.

(c) Causes the death of an unborn child by the operation or handling of a vehicle while under the influence of an intoxicant.

(cm) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.

(d) Causes the death of an unborn child by the operation or handling of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).

(e) Causes the death of an unborn child by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.

(1c) 

(a) Except as provided in par. (b), a person who violates sub. (1) is guilty of a Class D felony.

(b) A person who violates sub. (1) is guilty of a Class C felony if the person has one or more prior convictions, suspensions, or revocations, as counted under s. 343.307 (2).

(1d) A person who violates sub. (1) is subject to the requirements and procedures for installation of an ignition interlock device under s. 343.301.

(1g) Any person who does any of the following is guilty of a Class D felony:

(a) Causes the death of another by the operation or handling of a firearm or airgun while under the influence of an intoxicant.

(am) Causes the death of another by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.

(b) Causes the death of another by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.08 or more.

(c) Causes the death of an unborn child by the operation or handling of a firearm or airgun while under the influence of an intoxicant.

(cm) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has a detectable amount of a restricted controlled substance in his or her blood.

(d) Causes the death of an unborn child by the operation or handling of a firearm or airgun while the person has an alcohol concentration of 0.08 or more.

(1m) 

(a) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of sub. (1) (a), (am), or (b); any combination of sub. (1) (a), (am), or (bm); any combination of sub. (1) (c), (cm), or (d); any combination of sub. (1) (c), (cm), or (e); any combination of sub. (1g) (a), (am), or (b) or; any combination of sub. (1g) (c), (cm), or (d) for acts arising out of the same incident or occurrence.

(b) If a person is charged in an information with any of the combinations of crimes referred to in par. (a), the crimes shall be joined under s. 971.12. If the person is found guilty of more than one of the crimes so charged for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 23.33 (13) (b) 2. and 3., under s. 30.80 (6) (a) 2. and 3., under s. 343.307 (1) or under s. 350.11 (3) (a) 2. and 3. Subsection (1) (a), (am), (b), (bm), (c), (cm), (d), and (e) each require proof of a fact for conviction which the others do not require, and sub. (1g) (a), (am), (b), (c), (cm), and (d) each require proof of a fact for conviction which the others do not require.

(2) 

(a) In any action under this section, the defendant has a defense if he or she proves by a preponderance of the evidence that the death would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have an alcohol concentration described under sub. (1) (b), (bm), (d) or (e) or (1g) (b) or (d).

(b) In any action under sub. (1) (am) or (cm) or (1g) (am) or (cm) that is based on the defendant allegedly having a detectable amount of methamphetamine or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors or gamma-hydroxybutyric acid or delta-9-tetrahydrocannabinol.

(3) An officer who makes an arrest for a violation of this section shall make a report as required under s. 23.33 (4t), 30.686, 346.635 or 350.106.

History: 1977 c. 173; 1981 c. 20, 184, 314, 391; 1983 a. 459; 1985 a. 331; 1987 a. 399; 1989 a. 105, 275, 359; 1991 a. 32, 277; 1993 a. 317; 1995 a. 425, 436; 1997 a. 237, 295, 338; 1999 a. 32, 109; 2001 a. 16, 109; 2003 a. 30, 97; 2009 a. 100.

NOTE: For legislative intent see chapter 20, laws of 1981, section 2051 (13).

Probable cause for arrest on a charge of homicide by intoxicated use of a motor vehicle justified taking a blood sample without a search warrant or arrest. State v. Bentley, 92 Wis. 2d 860, 286 N.W.2d 153 (Ct. App. 1979).

Each death caused by an intoxicated operator's negligence is chargeable as a separate offense. State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980).

Because driving while intoxicated is inherently dangerous, the state need not prove a causal connection between the driver's intoxication and the victim's death. Sub. (2) does not violate the right against self-incrimination. State v. Caibaiosai, 122 Wis. 2d 587, 363 N.W.2d 574 (1985). Affirmed. State v. Fonte, 2005 WI 77, 281 Wis. 2d 654, 698 N.W.2d 594, 03-2097.

The definition of vehicle in s. 939.22 (44) applies to this section and includes a tractor. State v. Sohn, 193 Wis. 2d 346, 535 N.W.2d 1 (Ct. App. 1995).

Sub. (2) does not violate the constitutional guarantee of equal protection. State v. Lohmeier, 196 Wis. 2d 432, 538 N.W.2d 821 (Ct. App. 1995), 94-2187.

The defense under sub. (2) does not require an intervening cause; a victim's conduct can be the basis of the defense. The s. 939.14 rule that contributory negligence is not a defense to a crime does not prevent considering the victim's negligence in relation to causation. State v. Lohmeier, 205 Wis. 2d 183, 556 N.W.2d 90 (1996), 94-2187.

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 prospectively abrogated. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.

Defendant's conviction under sub. (1) (c) for causing the death of an unborn child was not unconstitutional. The court rejected the assertion that s. 939.75 (2) (b) 3. denies equal protection of the law because a pregnant woman can perform acts that cause the death of her unborn child without criminal liability while others are not similarly exempt for acts causing the death of the same unborn child. Because neither the defendant in this case nor anyone else is similarly situated to a pregnant woman who engages in conduct that causes the death of or harm to the unborn child within the pregnant woman, there is no equal protection violation. State v. Benson, 2012 WI App 101, ___ Wis. 2d ___, ___ N.W.2d ___, 11-1399.

This statute does not violate due process. Caibaiosai v. Barrington, 643 F. Supp. 1007 (W. D. Wis. 1986).

Homicide By Intoxicated Use Statute. Sines. Wis. Law. April, 1995.

940.10 Homicide by negligent operation of vehicle.

(1) Whoever causes the death of another human being by the negligent operation or handling of a vehicle is guilty of a Class G felony.

(2) Whoever causes the death of an unborn child by the negligent operation or handling of a vehicle is guilty of a Class G felony.

History: 1987 a. 399; 1997 a. 295; 2001 a. 109.

Judicial Council Note, 1988 Homicide by negligent operation of vehicle is analogous to prior s. 940.08. The mental element is criminal negligence as defined in s. 939.25. [Bill 191-S]

A motorist was properly convicted under this section for running a red light at 50 m.p.h., even though the speed limit was 55 m.p.h. State v. Cooper, 117 Wis. 2d 30, 344 N.W.2d 194 (Ct. App. 1983).

The definition of criminal negligence as applied to homicide by negligent operation of a vehicle is not unconstitutionally vague. State v. Barman, 183 Wis. 2d 180, 515 N.W.2d 493 (Ct. App. 1994).

A corporation may be subject to criminal liability under this section. State v. Knutson, Inc. 196 Wis. 2d 86, 537 N.W.2d 420 (Ct. App. 1995), 93-1898. See also State v. Steenberg Homes, Inc. 223 Wis. 2d 511, 589 N.W.2d 668 (Ct. App. 1998), 98-0104.

It is not a requirement for finding criminal negligence that the actor be specifically warned that his or her conduct may result in harm. State v. Johannes, 229 Wis. 2d 215, 598 N.W.2d 299 (Ct. App. 1999), 98-2239.

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.

940.11 Mutilating or hiding a corpse.

(1) Whoever mutilates, disfigures or dismembers a corpse, with intent to conceal a crime or avoid apprehension, prosecution or conviction for a crime, is guilty of a Class F felony.

(2) Whoever hides or buries a corpse, with intent to conceal a crime or avoid apprehension, prosecution or conviction for a crime or notwithstanding s. 49.141 (7), 49.49 (1), or 49.795 with intent to collect benefits under one of those sections, is guilty of a Class G felony.

(3) A person may not be subject to prosecution under both this section and s. 946.47 or under both this section and s. 948.23 (2) for his or her acts regarding the same corpse.

History: 1991 a. 205; 2001 a. 109; 2011 a. 268.

Evidence that the defendant dragged a corpse behind a locked gate into a restricted, secluded wildlife area, then rolled the corpse into water at the bottom of a ditch was sufficient for a jury to conclude that the defendant hid a corpse in violation of this section. State v. Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142, 99-2943.

940.12 Assisting suicide.

Whoever with intent that another take his or her own life assists such person to commit suicide is guilty of a Class H felony.

History: 1977 c. 173; 2001 a. 109.

940.13 Abortion exception.

No fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus, and s. 939.05, 939.30 or 939.31 does not apply to a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus.

History: 1985 a. 56.

940.15 Abortion.

(1) In this section, "viability" means that stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case before him or her, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support.

(2) Whoever intentionally performs an abortion after the fetus or unborn child reaches viability, as determined by reasonable medical judgment of the woman's attending physician, is guilty of a Class I felony.

(3) Subsection (2) does not apply if the abortion is necessary to preserve the life or health of the woman, as determined by reasonable medical judgment of the woman's attending physician.

(4) Any abortion performed under sub. (3) after viability of the fetus or unborn child, as determined by reasonable medical judgment of the woman's attending physician, shall be performed in a hospital on an inpatient basis.

(5) Whoever intentionally performs an abortion and who is not a physician is guilty of a Class I felony.

(6) Any physician who intentionally performs an abortion under sub. (3) shall use that method of abortion which, of those he or she knows to be available, is in his or her medical judgment most likely to preserve the life and health of the fetus or unborn child. Nothing in this subsection requires a physician performing an abortion to employ a method of abortion which, in his or her medical judgment based on the particular facts of the case before him or her, would increase the risk to the woman. Any physician violating this subsection is guilty of a Class I felony.

(7) Subsections (2) to (6) and s. 939.05, 939.30 or 939.31 do not apply to a woman who obtains an abortion that is in violation of this section or otherwise violates this section with respect to her unborn child or fetus.

History: 1985 a. 56; 2001 a. 109.

The essential holding of Roe v. Wade allowing abortion is upheld, but various state restrictions on abortion are permissible. Planned Parenthood v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674 (1992).

940.16 Partial-birth abortion.

(1) In this section:

(a) "Child" means a human being from the time of fertilization until it is completely delivered from a pregnant woman.

(b) "Partial-birth abortion" means an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes the delivery of the child.

(2) Except as provided in sub. (3), whoever intentionally performs a partial-birth abortion is guilty of a Class A felony.

(3) Subsection (2) does not apply if the partial-birth abortion is necessary to save the life of a woman whose life is endangered by a physical disorder, physical illness or physical injury, including a life-endangering physical disorder, physical illness or physical injury caused by or arising from the pregnancy itself, and if no other medical procedure would suffice for that purpose.

History: 1997 a. 219.

A Nebraska statute that provided that no partial birth abortion can be performed unless it is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury is unconstitutional. Stenberg v. Carhart, 530 U.S. 949, 147 L. Ed. 2d 743 (2000).

Enforcement of this section is enjoined under Carhart. Hope Clinic v. Ryan, 249 F.3d 603 (2001).

SUBCHAPTER II

BODILY SECURITY

940.19 Battery; substantial battery; aggravated battery.

(1) Whoever causes bodily harm to another by an act done with intent to cause bodily harm to that person or another without the consent of the person so harmed is guilty of a Class A misdemeanor.

(2) Whoever causes substantial bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class I felony.

(4) Whoever causes great bodily harm to another by an act done with intent to cause bodily harm to that person or another is guilty of a Class H felony.

(5) Whoever causes great bodily harm to another by an act done with intent to cause great bodily harm to that person or another is guilty of a Class E felony.

(6) Whoever intentionally causes bodily harm to another by conduct that creates a substantial risk of great bodily harm is guilty of a Class H felony. A rebuttable presumption of conduct creating a substantial risk of great bodily harm arises:

(a) If the person harmed is 62 years of age or older; or

(b) If the person harmed has a physical disability, whether congenital or acquired by accident, injury or disease, that is discernible by an ordinary person viewing the physically disabled person, or that is actually known by the actor.

History: 1977 c. 173; 1979 c. 111, 113; 1987 a. 399; 1993 a. 441, 483; 2001 a. 109.

Under the "elements only" test, offenses under subsections that require proof of nonconsent are not lesser included offenses of offenses under subsections for which proof of nonconsent is not required. State v. Richards, 123 Wis. 2d 1, 365 N.W.2d 7 (1985).

"Physical disability" is discussed. State v. Crowley, 143 Wis. 2d 324, 422 N.W.2d 847 (1988).

First-degree reckless injury, s. 940.23 (1), is not a lesser included offense of aggravated battery. State v. Eastman, 185 Wis. 2d 405, 518 N.W.2d 257 (Ct. App. 1994).

The act of throwing urine that strikes another and causes pain constitutes a battery. State v. Higgs, 230 Wis. 2d 1, 601 N.W.2d 653 (Ct. App. 1999), 98-1811.

Section 941.20 (1), 1st-degree recklessly endangering safety, is not a lesser included offense of sub. (5), aggravated battery. State v. Dibble, 2002 WI App 219, 257 Wis. 2d. 274, 650 N.W.2d 908, 02-0538.

940.195 Battery to an unborn child; substantial battery to an unborn child; aggravated battery to an unborn child.

(1) Whoever causes bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class A misdemeanor.

(2) Whoever causes substantial bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class I felony.

(4) Whoever causes great bodily harm to an unborn child by an act done with intent to cause bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class H felony.

(5) Whoever causes great bodily harm to an unborn child by an act done with intent to cause great bodily harm to that unborn child, to the woman who is pregnant with that unborn child or another is guilty of a Class E felony.

(6) Whoever intentionally causes bodily harm to an unborn child by conduct that creates a substantial risk of great bodily harm is guilty of a Class H felony.

History: 1997 a. 295; 2001 a. 109.

940.20 Battery: special circumstances.

(1)  Battery by prisoners. Any prisoner confined to a state prison or other state, county, or municipal detention facility who intentionally causes bodily harm or a soft tissue injury, as defined in s. 946.41 (2) (c), to an officer, employee, visitor, or another inmate of such prison or institution, without his or her consent, is guilty of a Class H felony.

(1g) Battery by certain committed persons. Any person placed in a facility under s. 980.065 and who intentionally causes bodily harm to an officer, employee, agent, visitor, or other resident of the facility, without his or her consent, is guilty of a Class H felony.

(1m) Battery by persons subject to certain injunctions.

(a) Any person who is subject to an injunction under s. 813.12 or a tribal injunction filed under s. 806.247 (3) and who intentionally causes bodily harm to the petitioner who sought the injunction by an act done without the consent of the petitioner is guilty of a Class I felony.

(b) Any person who is subject to an injunction under s. 813.125 and who intentionally causes bodily harm to the petitioner who sought the injunction by an act done without the consent of the petitioner is guilty of a Class I felony.

(2) Battery to law enforcement officers, fire fighters, and commission wardens. Whoever intentionally causes bodily harm to a law enforcement officer or fire fighter, as those terms are defined in s. 102.475 (8) (b) and (c), or to a commission warden, acting in an official capacity and the person knows or has reason to know that the victim is a law enforcement officer, fire fighter, or commission warden, by an act done without the consent of the person so injured, is guilty of a Class H felony.

(2m) Battery to probation, extended supervision and parole agents and aftercare agents.

(a) In this subsection:

1. "Aftercare agent" means any person authorized by the department of corrections to exercise control over a juvenile on aftercare.

2. "Probation, extended supervision and parole agent" means any person authorized by the department of corrections to exercise control over a probationer, parolee or person on extended supervision.

(b) Whoever intentionally causes bodily harm to a probation, extended supervision and parole agent or an aftercare agent, acting in an official capacity and the person knows or has reason to know that the victim is a probation, extended supervision and parole agent or an aftercare agent, by an act done without the consent of the person so injured, is guilty of a Class H felony.

(3) Battery to jurors. Whoever intentionally causes bodily harm to a person who he or she knows or has reason to know is or was a grand or petit juror, and by reason of any verdict or indictment assented to by the person, without the consent of the person injured, is guilty of a Class H felony.

(4) Battery to public officers. Whoever intentionally causes bodily harm to a public officer in order to influence the action of such officer or as a result of any action taken within an official capacity, without the consent of the person injured, is guilty of a Class I felony.

(5) Battery to technical college district or school district officers and employees.

(a) In this subsection:

1. "School district" has the meaning given in s. 115.01 (3).

2. "Technical college district" means a district established under ch. 38.

(b) Whoever intentionally causes bodily harm to a technical college district or school district officer or employee acting in that capacity, and the person knows or has reason to know that the victim is a technical college district or school district officer or employee, without the consent of the person so injured, is guilty of a Class I felony.

(6) Battery to public transit vehicle operator, driver or passenger.

(a) In this subsection, "public transit vehicle" means any vehicle used for providing transportation service to the general public.

(b) Whoever intentionally causes bodily harm to another under any of the following circumstances is guilty of a Class I felony:

1. The harm occurs while the victim is an operator, a driver or a passenger of, in or on a public transit vehicle.

2. The harm occurs after the offender forces or directs the victim to leave a public transit vehicle.

3. The harm occurs as the offender prevents, or attempts to prevent, the victim from gaining lawful access to a public transit vehicle.

(7) Battery to emergency medical care providers.

(a) In this subsection:

1e. "Ambulance" has the meaning given in s. 256.01 (1).

1g. "Emergency department" means a room or area in a hospital, as defined in s. 50.33 (2), that is primarily used to provide emergency care, diagnosis or radiological treatment.

2. "Emergency department worker" means any of the following:

a. An employee of a hospital who works in an emergency department.

b. A health care provider, whether or not employed by a hospital, who works in an emergency department.

2g. "Emergency medical technician" has the meaning given in s. 256.01 (5).

2m. "First responder" has the meaning given in s. 256.01 (9).

3. "Health care provider" means any person who is licensed, registered, permitted or certified by the department of health services or the department of safety and professional services to provide health care services in this state.

(b) Whoever intentionally causes bodily harm to an emergency department worker, an emergency medical technician, a first responder or an ambulance driver who is acting in an official capacity and who the person knows or has reason to know is an emergency department worker, an emergency medical technician, a first responder or an ambulance driver, by an act done without the consent of the person so injured, is guilty of a Class H felony.

History: 1977 c. 173; 1979 c. 30, 113, 221; 1981 c. 118 s. 9; 1983 a. 189 s. 329 (4); 1989 a. 336; 1993 a. 54, 164, 491; 1995 a. 27 s. 9126 (19); 1995 a. 77, 145, 225, 343; 1997 a. 35, 143, 283; 1999 a. 85; 2001 a. 109; 2005 a. 434; 2007 a. 20 s. 9121 (6) (a); 2007 a. 27, 130; 2011 a. 32, 74.

Resisting or obstructing an officer, s. 946.41, is not a lesser-included offense of battery to a peace officer. State v. Zdiarstek, 53 Wis. 2d 776, 193 N.W.2d 833 (1972).

A county deputy sheriff was not acting in an official capacity under s. 940.205 [now s. 940.20 (2)] when making an arrest outside of his county of employment. State v. Barrett, 96 Wis. 2d 174, 291 N.W.2d 498 (1980).

A prisoner is "confined to a state prison" under sub. (1) when kept under guard at a hospital for treatment. State v. Cummings, 153 Wis. 2d 603, 451 N.W.2d 463 (Ct. App. 1989).

A defendant's commitment to a mental institution upon a finding of not guilty by reason of mental disease or defect rendered him a "prisoner" under sub. (1). State v. Skamfer, 176 Wis. 2d 304, N.W.2d (Ct. App. 1993).

There is no requirement under sub. (2) that the officer/victim be acting lawfully when he or she is hit by a defendant. When an officer was assaulted when doing something within the scope of what the officer was employed to do, the lawfulness of the officer's presence in the house where the defendant hit him was not material to a violation of sub. (2). State v. Haywood, 2009 WI App 178, 322 Wis. 2d 691, 777 N.W.2d 921, 09-0030.

940.201 Battery or threat to witnesses.

(1) In this section:

(a) "Family member" means a spouse, child, stepchild, foster child, parent, sibling, or grandchild.

(b) "Witness" has the meaning given in s. 940.41 (3).

(2) Whoever does any of the following is guilty of a Class H felony:

(a) Intentionally causes bodily harm or threatens to cause bodily harm to a person who he or she knows or has reason to know is or was a witness by reason of the person having attended or testified as a witness and without the consent of the person harmed or threatened.

(b) Intentionally causes bodily harm or threatens to cause bodily harm to a person who he or she knows or has reason to know is a family member of a witness or a person sharing a common domicile with a witness by reason of the witness having attended or testified as a witness and without the consent of the person harmed or threatened.

History: 1997 a. 143; 2001 a. 109; 2009 a. 28.

Battery to a prospective witness is prohibited by s. 940.206 [now s. 940.201]. McLeod v. State, 85 Wis. 2d 787, 271 N.W.2d 157 (Ct. App. 1978).

940.203 Battery or threat to judge.

(1) In this section:

(a) "Family member" means a parent, spouse, sibling, child, stepchild, or foster child.

(b) "Judge" means a supreme court justice, court of appeals judge, circuit court judge, municipal judge, temporary or permanent reserve, judge or circuit, supplemental, or municipal court commissioner.

(2) Whoever intentionally causes bodily harm or threatens to cause bodily harm to the person or family member of any judge under all of the following circumstances is guilty of a Class H felony:

(a) At the time of the act or threat, the actor knows or should have known that the victim is a judge or a member of his or her family.

(b) The judge is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity.

(c) There is no consent by the person harmed or threatened.

History: 1993 a. 50, 446; 2001 a. 61, 109; 2009 a. 28.

Only a "true threat" is punishable under this section. A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. Jury instructions must contain a clear definition of a true threat. State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, 99-1924.

940.205 Battery or threat to department of revenue employee.

(1) In this section, "family member" means a parent, spouse, sibling, child, stepchild, or foster child.

(2) Whoever intentionally causes bodily harm or threatens to cause bodily harm to the person or family member of any department of revenue official, employee or agent under all of the following circumstances is guilty of a Class H felony:

(a) At the time of the act or threat, the actor knows or should have known that the victim is a department of revenue official, employee or agent or a member of his or her family.

(b) The official, employee or agent is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity.

(c) There is no consent by the person harmed or threatened.

History: 1985 a. 29; 1993 a. 446; 2001 a. 109; 2009 a. 28.

940.207 Battery or threat to department of safety and professional services or department of workforce development employee.

(1) In this section, "family member" means a parent, spouse, sibling, child, stepchild, or foster child.

(2) Whoever intentionally causes bodily harm or threatens to cause bodily harm to the person or family member of any department of safety and professional services or department of workforce development official, employee or agent under all of the following circumstances is guilty of a Class H felony:

(a) At the time of the act or threat, the actor knows or should have known that the victim is a department of safety and professional services or department of workforce development official, employee or agent or a member of his or her family.

(b) The official, employee or agent is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity.

(c) There is no consent by the person harmed or threatened.

History: 1993 a. 86, 446; 1995 a. 27 ss. 7227 to 7229, 9116 (5), 9130 (4); 1997 a. 3; 2001 a. 109; 2009 a. 28; 2011 a. 32.

940.208 Battery to certain employees of counties, cities, villages, or towns.

Whoever intentionally causes bodily harm to an employee of a county, city, village, or town under all of the following circumstances is guilty of a Class I felony:

(1) At the time of the act, the actor knows or should know that the victim is an employee of a county, city, village, or town.

(2) The victim is enforcing, or conducting an inspection for the purpose of enforcing, a state, county, city, village, or town zoning ordinance, building code, or other construction law, rule, standard, or plan at the time of the act or the act is in response to any such enforcement or inspection activity.

(2p) The enforcement or inspection complies with any law, ordinance, or rule, including any applicable notice requirement.

(3) There is no consent by the victim.

History: 2007 a. 193.

940.21 Mayhem.

Whoever, with intent to disable or disfigure another, cuts or mutilates the tongue, eye, ear, nose, lip, limb or other bodily member of another is guilty of a Class C felony.

History: 1977 c. 173; 2001 a. 109.

The forehead qualifies as an "other bodily member" under s. 940.21 because "other bodily member" encompasses all bodily parts. State v. Quintana, 2008 WI 33, 308 Wis. 2d 615, 748 N.W.2d 447, 06-0499.

Failure to instruct a jury that great bodily harm is an essential element of mayhem was reversible error. Cole v. Young, 817 F. 2d 412 (1987).

940.22 Sexual exploitation by therapist; duty to report.

(1)  Definitions. In this section:

(a) "Department" means the department of safety and professional services.

(b) "Physician" has the meaning designated in s. 448.01 (5).

(c) "Psychologist" means a person who practices psychology, as described in s. 455.01 (5).

(d) "Psychotherapy" has the meaning designated in s. 455.01 (6).

(e) "Record" means any document relating to the investigation, assessment and disposition of a report under this section.

(f) "Reporter" means a therapist who reports suspected sexual contact between his or her patient or client and another therapist.

(g) "Sexual contact" has the meaning designated in s. 940.225 (5) (b).

(h) "Subject" means the therapist named in a report or record as being suspected of having sexual contact with a patient or client or who has been determined to have engaged in sexual contact with a patient or client.

(i) "Therapist" means 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.

(2) Sexual contact prohibited. 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 an issue in an action under this subsection.

(3) Reports of sexual contact.

(a) If a therapist has reasonable cause to suspect that a patient or client he or she has seen in the course of professional duties is a victim of sexual contact by another therapist or a person who holds himself or herself out to be a therapist in violation of sub. (2), as soon thereafter as practicable the therapist shall ask the patient or client if he or she wants the therapist to make a report under this subsection. The therapist shall explain that the report need not identify the patient or client as the victim. If the patient or client wants the therapist to make the report, the patient or client shall provide the therapist with a written consent to the report and shall specify whether the patient's or client's identity will be included in the report.

(b) Within 30 days after a patient or client consents under par. (a) to a report, the therapist shall report the suspicion to:

1. The department, if the reporter believes the subject of the report is licensed by the state. The department shall promptly communicate the information to the appropriate examining board or affiliated credentialing board.

2. The district attorney for the county in which the sexual contact is likely, in the opinion of the reporter, to have occurred, if subd. 1. is not applicable.

(c) A report under this subsection shall contain only information that is necessary to identify the reporter and subject and to express the suspicion that sexual contact has occurred in violation of sub. (2). The report shall not contain information as to the identity of the alleged victim of sexual contact unless the patient or client requests under par. (a) that this information be included.

(d) Whoever intentionally violates this subsection by failing to report as required under pars. (a) to (c) is guilty of a Class A misdemeanor.

(4) Confidentiality of reports and records.

(a) All reports and records made from reports under sub. (3) and maintained by the department, examining boards, affiliated credentialing boards, district attorneys and other persons, officials and institutions shall be confidential and are exempt from disclosure under s. 19.35 (1). Information regarding the identity of a victim or alleged victim of sexual contact by a therapist shall not be disclosed by a reporter or by persons who have received or have access to a report or record unless disclosure is consented to in writing by the victim or alleged victim. The report of information under sub. (3) and the disclosure of a report or record under this subsection does not violate any person's responsibility for maintaining the confidentiality of patient health care records, as defined in s. 146.81 (4) and as required under s. 146.82. Reports and records may be disclosed only to appropriate staff of a district attorney or a law enforcement agency within this state for purposes of investigation or prosecution.

(b)

1. The department, a district attorney, an examining board or an affiliated credentialing board within this state may exchange information from a report or record on the same subject.

2. If the department receives 2 or more reports under sub. (3) regarding the same subject, the department shall communicate information from the reports to the appropriate district attorneys and may inform the applicable reporters that another report has been received regarding the same subject.

3. If a district attorney receives 2 or more reports under sub. (3) regarding the same subject, the district attorney may inform the applicable reporters that another report has been received regarding the same subject.

4. After reporters receive the information under subd. 2. or 3., they may inform the applicable patients or clients that another report was received regarding the same subject.

(c) A person to whom a report or record is disclosed under this subsection may not further disclose it, except to the persons and for the purposes specified in this section.

(d) Whoever intentionally violates this subsection, or permits or encourages the unauthorized dissemination or use of information contained in reports and records made under this section, is guilty of a Class A misdemeanor.

(5) Immunity from liability. Any person or institution participating in good faith in the making of a report or record under this section is immune from any civil or criminal liability that results by reason of the action. For the purpose of any civil or criminal action or proceeding, any person reporting under this section is presumed to be acting in good faith. The immunity provided under this subsection does not apply to liability resulting from sexual contact by a therapist with a patient or client.

History: 1983 a. 434; 1985 a. 275; 1987 a. 352, 380; 1991 a. 160; 1993 a. 107; 1995 a. 300; 2001 a. 109; 2011 a. 32.

This section applies to persons engaged in professional therapist-patient relationships. A teacher who conducts informal counseling is not engaged as a professional therapist. State v. Ambrose, 196 Wis. 2d 768, 540 N.W.2d 208 (Ct. App. 1995), 94-3391.

Even though the alleged victim feigned her role as a patient at the last counseling session she attended, attending as a police agent for the purpose of recording the session to obtain evidence, any acts that occurred during the session were during an ongoing therapist-patient relationship as those terms are used in this section. State v. DeLain, 2005 WI 52, 280 Wis. 2d 51, 695 N.W.2d 484, 03-1253.

The totality of the circumstances determine the existence of an ongoing therapist-patient relationship under sub. (2). A defendant's state of mind, a secret unilateral action of a patient, and explicit remarks of one party to the other regarding the relationship may be factors, but are not necessarily dispositive. Other factors may be: 1) how much time has gone by since the last therapy session; 2) how close together the therapy sessions had been to each other; 3) the age of the patient; 4) the particular vulnerabilities experienced by the patient as a result of mental health issues; and 5) the ethical obligations of the therapist's profession. State v. DeLain, 2005 WI 52, 280 Wis. 2d 51, 695 N.W.2d 484, 03-1253.

It was constitutional error to give a pattern jury instruction that never directed the jury to make an independent, beyond-a-reasonable-doubt decision as to whether the defendant clergy member performed or purported to perform psychotherapy. State v. Draughon, 2005 WI App 162, 285 Wis. 2d 633, 702 N.W.2d 412, 04-1637.

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, 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.

History: 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.

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, ___ Wis. 2d ___, 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) 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) 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) (d). 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).

940.23 Reckless injury.

(1)  First-degree reckless injury.

(a) Whoever recklessly causes great bodily harm to another human being under circumstances which show utter disregard for human life is guilty of a Class D felony.

(b) Whoever recklessly causes great bodily harm to an unborn child under circumstances that show utter disregard for the life of that unborn child, the woman who is pregnant with that unborn child or another is guilty of a Class D felony.

(2) Second-degree reckless injury.

(a) Whoever recklessly causes great bodily harm to another human being is guilty of a Class F felony.

(b) Whoever recklessly causes great bodily harm to an unborn child is guilty of a Class F felony.

History: 1987 a. 399; 1997 a. 295; 2001 a. 109.

Judicial Council Note, 1988: Sub. (1) is analogous to the prior offense of injury by conduct regardless of life.

Sub. (2) is new. It creates the crime of injury by criminal recklessness. See s. 939.24. [Bill 191-S]

First-degree reckless injury, s. 940.23 (1), is not a lesser included offense of aggravated battery. State v. Eastman, 185 Wis. 2d 405, 518 N.W.2d 257 (Ct. App. 1994).

Sub. (1) (a) cannot be applied against a mother for actions taken against a fetus while pregnant as the applicable definition of human being under s. 939.22 (16) is limited to one who is born alive. Sub. (1) (b) does not apply because s. 939.75 (2) (b) excludes actions by a pregnant woman from its application. State v. Deborah J.Z. 228 Wis. 2d 468, 596 N.W.2d 490 (Ct. App. 1999), 96-2797.

Utter disregard for human life is not a subpart of the intent element and need not be proven subjectively. It can be proven by evidence relating to the defendant's state of mind or by evidence of heightened risk or obvious potentially lethal danger. However proven, utter disregard is measured objectively on the basis of what a reasonable person would have known. State v. Jensen, 2000 WI 84, 236 Wis. 2d 521, 613 N.W.2d 170, 98-3175.

Utter disregard requires more than a high degree of negligence or recklessness. To evince utter disregard, the mind must not only disregard the safety of another but be devoid of regard for the life of another. A person acting with utter disregard must possess a state of mind that has no regard for the moral or social duties of a human being. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.

In evaluating whether there is sufficient proof of utter disregard for human life, factors to be considered include the type of act, its nature, why the perpetrator acted as he/she did, the extent of the victim's injuries, and the degree of force that was required to cause those injuries. Also considered are the type of victim and the victim's age, vulnerability, fragility, and relationship to the perpetrator, as well as whether the totality of the circumstances showed any regard for the victim's life. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.

Pointing a loaded gun at another is not conduct evincing utter disregard if it is otherwise defensible, even if it is not privileged. When conduct was to protect the defendant and his friends, although not found to be self defense, the conduct is inconsistent with conduct evincing utter disregard. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.

Jensen does not create a rule assigning less weight to a defendant's after-the-fact conduct. When evaluating whether a defendant's conduct reflects utter disregard for human life, the fact-finder should examine the totality of the circumstances surrounding the crime, considering all relevant conduct before, during, and after a crime, giving each the weight it deems appropriate under the circumstances. State v. Burris, 2011 WI 32, 333 Wis. 2d 87, 797 N.W.2d 430, 09-0956.

940.235 Strangulation and suffocation.

(1) Whoever intentionally impedes the normal breathing or circulation of blood by applying pressure on the throat or neck or by blocking the nose or mouth of another person is guilty of a Class H felony.

(2) Whoever violates sub. (1) is guilty of a Class G felony if the actor has a previous conviction under this section or a previous conviction for a violent crime, as defined in s. 939.632 (1) (e) 1.

History: 2007 a. 127.

940.24 Injury by negligent handling of dangerous weapon, explosives or fire.

(1) Except as provided in sub. (3), whoever causes bodily harm to another by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class I felony.

(2) Whoever causes bodily harm to an unborn child by the negligent operation or handling of a dangerous weapon, explosives or fire is guilty of a Class I felony.

(3) Subsection (1) does not apply to a health care provider acting within the scope of his or her practice or employment.

History: 1977 c. 173; 1987 a. 399; 1997 a. 295; 2001 a. 109; 2011 a. 2.

Judicial Council Note, 1988: The definition of the offense is broadened to include highly negligent handling of fire, explosives and dangerous weapons other than a firearm, airgun, knife or bow and arrow. See s. 939.22 (10). The culpable mental state is criminal negligence. See s. 939.25 and the NOTE thereto. [Bill 191-S]

Dogs must be intended to be weapons before their handling can result in a violation of this section. That a dog bites does not render the dog a dangerous weapon. Despite evidence of positive steps to restrain the dog, when those measures are inadequate criminal negligence may be found. Physical proximity is not necessary for a defendant's activity to constitute handling. State v. Bodoh, 226 Wis. 2d 718, 595 N.W.2d 330 (1999), 97-0495.

940.25 Injury by intoxicated use of a vehicle.

(1) Any person who does any of the following is guilty of a Class F felony:

(a) Causes great bodily harm to another human being by the operation of a vehicle while under the influence of an intoxicant.

(am) Causes great bodily harm to another human being by the operation of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.

(b) Causes great bodily harm to another human being by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).

(bm) Causes great bodily harm to another human being by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.

(c) Causes great bodily harm to an unborn child by the operation of a vehicle while under the influence of an intoxicant.

(cm) Causes great bodily harm to an unborn child by the operation of a vehicle while the person has a detectable amount of a restricted controlled substance in his or her blood.

(d) Causes great bodily harm to an unborn child by the operation of a vehicle while the person has a prohibited alcohol concentration, as defined in s. 340.01 (46m).

(e) Causes great bodily harm to an unborn child by the operation of a commercial motor vehicle while the person has an alcohol concentration of 0.04 or more but less than 0.08.

(1d) A person who violates sub. (1) is subject to the requirements and procedures for installation of an ignition interlock device under s. 343.301.

(1m) 

(a) A person may be charged with and a prosecutor may proceed upon an information based upon a violation of any combination of sub. (1) (a), (am), or (b); any combination of sub. (1) (a), (am), or (bm); any combination of sub. (1) (c), (cm), or (d); or any combination of sub. (1) (c), (cm), or (e) for acts arising out of the same incident or occurrence.

(b) If a person is charged in an information with any of the combinations of crimes referred to in par. (a), the crimes shall be joined under s. 971.12. If the person is found guilty of more than one of the crimes so charged for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions under s. 23.33 (13) (b) 2. and 3., under s. 30.80 (6) (a) 2. or 3., under ss. 343.30 (1q) and 343.305 or under s. 350.11 (3) (a) 2. and 3. Subsection (1) (a), (am), (b), (bm), (c), (cm), (d), and (e) each require proof of a fact for conviction which the others do not require.

(2) 

(a) The defendant has a defense if he or she proves by a preponderance of the evidence that the great bodily harm would have occurred even if he or she had been exercising due care and he or she had not been under the influence of an intoxicant, did not have a detectable amount of a restricted controlled substance in his or her blood, or did not have an alcohol concentration described under sub. (1) (b), (bm), (d) or (e).

(b) In any action under this section that is based on the defendant allegedly having a detectable amount of methamphetamine, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol in his or her blood, the defendant has a defense if he or she proves by a preponderance of the evidence that at the time of the incident or occurrence he or she had a valid prescription for methamphetamine or one of its metabolic precursors, gamma-hydroxybutyric acid, or delta-9-tetrahydrocannabinol.

(3) An officer who makes an arrest for a violation of this section shall make a report as required under s. 23.33 (4t), 30.686, 346.635 or 350.106.

History: 1977 c. 193, 272; 1981 c. 20, 184; 1983 a. 459; 1985 a. 331; 1987 a. 399; 1989 a. 105, 275, 359; 1991 a. 277; 1993 a. 317, 428, 478; 1995 a. 425, 436; 1997 a. 237, 295; 1999 a. 32, 109, 186; 2001 a. 16, 109; 2003 a. 30, 97; 2005 a. 253; 2009 a. 100.

NOTE: For legislative intent see chapter 20, laws of 1981, section 2051 (13).

The double jeopardy clause was not violated by a charge under sub. (1) (c) [now sub. (1m)] of violations of subs. (1) (a) and (b). State v. Bohacheff, 114 Wis. 2d 402, 338 N.W.2d 466 (1983).

The trial court did not err in refusing to admit expert testimony indicating that the victims would not have suffered the same injury had they been wearing seat belts; the evidence not relevant to a defense under sub. (2). State v. Turk, 154 Wis. 2d 294, 453 N.W.2d 163 (1990).

The offense under sub. (1) (am) has 2 elements that must be proved beyond a reasonable doubt: 1) the defendant operated a vehicle with a detectable amount of a restricted controlled substance in his or her blood; and 2) the defendant's operation of the vehicle caused great bodily harm to the victim. The elements of the crime do not provide the state with any presumptions that relieves the state of its burden to establish the two elements beyond a reasonable doubt nor did the legislature's enactment, without requiring a causal link between drug use and the injury as an element of the crime, in some way exceeds its authority. State v. Gardner, 2006 WI App 92, 292 Wis. 2d 682, 715 N.W.2d 720, 05-1372.

The affirmative defense under sub. (2) (a) does not shift to the defendant the burden to prove that he or she is innocent. It requires the defendant to prove that despite the fact that the state has satisfied the elements of the offense, the defendant cannot be held legally responsible under the statute. State v. Gardner, 2006 WI App 92, 292 Wis. 2d 682, 715 N.W.2d 720, 05-1372.

"Materially impaired" as used in the definition of "under the influence of an intoxicant" in s. 939.22 (42) does not have a technical or peculiar meaning in the law beyond the time-tested explanations in standard jury instructions. Therefore, the circuit court's response to the jury question to give all words not otherwise defined their ordinary meaning was not error, comported with s. 990.01, and did not constitute an erroneous exercise of discretion. State v. Hubbard, 2008 WI 92, 313 Wis. 2d 1, 752 N.W.2d 839, 06-2753.

940.285 Abuse of individuals at risk.

(1)  Definitions. In this section:

(ag) "Abuse" means any of the following:

1. Physical abuse, as defined in s. 46.90 (1) (fg).

2. Emotional abuse, as defined in s. 46.90 (1) (cm).

3. Sexual abuse, as defined in s. 46.90 (1) (gd).

4. Treatment without consent, as defined in s. 46.90 (1) (h).

5. Unreasonable confinement or restraint, as defined in s. 46.90 (1) (i).

6. Deprivation of a basic need for food, shelter, clothing, or personal or health care, including deprivation resulting from the failure to provide or arrange for a basic need by a person who has assumed responsibility for meeting the need voluntarily or by contract, agreement, or court order.

(am) "Adult at risk" has the meaning given in s. 55.01 (1e).

(dc) "Elder adult at risk" has the meaning given in s. 46.90 (1) (br).

(dg) "Individual at risk" means an elder adult at risk or an adult at risk.

(dm) "Recklessly" means conduct that creates a situation of unreasonable risk of harm and demonstrates a conscious disregard for the safety of the vulnerable adult.

(1m) Exception. Nothing in this section may be construed to mean that an individual at risk is abused solely because he or she consistently relies upon treatment by spiritual means through prayer for healing, in lieu of medical care, in accordance with his or her religious tradition.

(2) Abuse; penalties.

(a) Any person, other than a person in charge of or employed in a facility under s. 940.29 or in a facility or program under s. 940.295 (2), who does any of the following may be penalized under par. (b):

1. Intentionally subjects an individual at risk to abuse.

2. Recklessly subjects an individual at risk to abuse.

3. Negligently subjects an individual at risk to abuse.

(b)

1g. Any person violating par. (a) 1. or 2. under circumstances that cause death is guilty of a Class C felony. Any person violating par. (a) 3. under circumstances that cause death is guilty of a Class D felony.

1m. Any person violating par. (a) under circumstances that cause great bodily harm is guilty of a Class F felony.

1r. Any person violating par. (a) 1. under circumstances that are likely to cause great bodily harm is guilty of a Class G felony. Any person violating par. (a) 2. or 3. under circumstances that are likely to cause great bodily harm is guilty of a Class I felony.

2. Any person violating par. (a) 1. under circumstances that cause bodily harm is guilty of a Class H felony. Any person violating par. (a) 1. under circumstances that are likely to cause bodily harm is guilty of a Class I felony.

4. Any person violating par. (a) 2. or 3. under circumstances that cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.

5. Any person violating par. (a) 1., 2. or 3. under circumstances not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.

History: 1985 a. 306; 1993 a. 445; 1997 a. 180; 2001 a. 109; 2005 a. 264, 388; 2007 a. 45.

940.29 Abuse of residents of penal facilities.

Any person in charge of or employed in a penal or correctional institution or other place of confinement who abuses, neglects or ill-treats any person confined in or a resident of any such institution or place or who knowingly permits another person to do so is guilty of a Class I felony.

History: 1975 c. 119; 1975 c. 413 s. 18; 1977 c. 173; 1979 c. 124; 1981 c. 20; 1987 a. 161 ss. 12, 13m; 1987 a. 332; 1993 a. 445; 2001 a. 109.

940.291 Law enforcement officer; failure to render aid.

(1) Any peace officer, while acting in the course of employment or under the authority of employment, who intentionally fails to render or make arrangements for any necessary first aid for any person in his or her actual custody is guilty of a Class A misdemeanor if bodily harm results from the failure. This subsection applies whether the custody is lawful or unlawful and whether the custody is actual or constructive. A violation for intentionally failing to render first aid under this subsection applies only to first aid which the officer has the knowledge and ability to render.

(2) Any peace officer who knowingly permits another person to violate sub. (1), while acting in the course of employment or under the authority of employment, is guilty of a Class A misdemeanor.

History: 1983 a. 27.

940.295 Abuse and neglect of patients and residents.

(1)  Definitions. In this section:

(ad) "Abuse" has the meaning given in s. 46.90 (1) (a).

(ag) "Adult at risk" has the meaning given in s. 55.01 (1e).

(am) "Adult family home" has the meaning given in s. 50.01 (1).

(b) "Bodily harm" has the meaning given in s. 46.90 (1) (aj).

(c) "Community-based residential facility" has the meaning given in s. 50.01 (1g).

(cr) "Elder adult at risk" has the meaning given in s. 46.90 (1) (br).

(d) "Foster home" has the meaning given in s. 48.02 (6).

(e) "Great bodily harm" has the meaning given in s. 939.22 (14).

(f) "Group home" has the meaning given in s. 48.02 (7).

(g) "Home health agency" has the meaning given in s. 50.49 (1) (a).

(h) "Hospice" has the meaning given in s. 50.90 (1).

(hr) "Individual at risk" means an elder adult at risk or an adult at risk.

(i) "Inpatient health care facility" has the meaning given in s. 50.135 (1).

(k) "Neglect" has the meaning given in s. 46.90 (1) (f).

(km) "Negligence" means an act, omission, or course of conduct that the actor should realize creates a substantial and unreasonable risk of death, great bodily harm, or bodily harm to another person.

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

1. Receives care or treatment from a facility or program under sub. (2), 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 sub. (2) for the purpose of receiving care or treatment from a facility or program under sub. (2), from an employee of a facility or program under sub. (2), or from a person providing services under contract with a facility or program under sub. (2).

(o) "Recklessly" means conduct that creates a situation of unreasonable risk of death or harm to and demonstrates a conscious disregard for the safety of the patient or resident.

(p) "Resident" means any person who resides in a facility under sub. (2).

(r) "State treatment facility" has the meaning given in s. 51.01 (15).

(s) "Treatment facility" has the meaning given in s. 51.01 (19).

(2) Applicability. This section applies to any of the following types of facilities or programs:

(a) An adult day care center.

(b) An adult family home.

(c) A community-based residential facility.

(d) A foster home.

(e) A group home.

(f) A home health agency.

(g) A hospice.

(h) An inpatient health care facility.

(i) A program under s. 51.42 (2).

(j) The Wisconsin Educational Services Program for the Deaf and Hard of Hearing under s. 115.52 and the Wisconsin Center for the Blind and Visually Impaired under s. 115.525.

(k) A state treatment facility.

(L) A treatment facility.

(m) A residential care center for children and youth operated by a child welfare agency licensed under s. 48.60 or an institution operated by a public agency for the care of neglected, dependent, or delinquent children.

(n) Any other health facility or care-related facility or home, whether publicly or privately owned.

(3) Abuse and neglect; penalties.

(a) Any person in charge of or employed in any facility or program under sub. (2) who does any of the following, or who knowingly permits another person to do so, may be penalized under par. (b):

1. Intentionally abuses or intentionally neglects a patient or resident.

2. Recklessly abuses or recklessly neglects a patient or resident.

3. Except as provided in par. (am), abuses, with negligence, or neglects a patient or a resident.

(am) Paragraph (a) 3. does not apply to a health care provider acting in the scope of his or her practice or employment who commits an act or omission of mere inefficiency, unsatisfactory conduct, or failure in good performance as the result of inability, incapacity, inadvertency, ordinary negligence, or good faith error in judgment or discretion.

(b)

1g. Any person violating par. (a) 1. or 2. under circumstances that cause death to an individual at risk is guilty of a Class C felony. Any person violating par. (a) 3. under circumstances that cause death to an individual at risk is guilty of a Class D felony.

1m. Any person violating par. (a) under circumstances that cause great bodily harm to an individual at risk is guilty of a Class E felony.

1r. Except as provided in subd. 1m., any person violating par. (a) 1. under circumstances that cause great bodily harm is guilty of a Class F felony. Any person violating par. (a) 1. under circumstances that are likely to cause great bodily harm is guilty of a Class G felony.

2. Any person violating par. (a) 1. under circumstances that cause bodily harm is guilty of a Class H felony. Any person violating par. (a) 1. under circumstances that are likely to cause bodily harm is guilty of a Class I felony.

3. Except as provided in subd. 1m., any person violating par. (a) 2. or 3. under circumstances that cause great bodily harm is guilty of a Class H felony. Any person violating par. (a) 2. or 3. under circumstances that are likely to cause great bodily harm is guilty of a Class I felony.

4. Any person violating par. (a) 2. or 3. under circumstances that cause or are likely to cause bodily harm is guilty of a Class A misdemeanor.

5. Any person violating par. (a) 1., 2. or 3. under circumstances not causing and not likely to cause bodily harm is guilty of a Class B misdemeanor.

History: 1993 a. 445; 1995 a. 225; 1997 a. 180; 1999 a. 9; 2001 a. 57, 59, 109; 2005 a. 264, 388; 2007 a. 45; 2011 a. 2.

Evidence that residents suffered weight loss and bedsores was sufficient to support the conviction of a nursing home administrator for abuse of residents. State v. Serebin, 119 Wis. 2d 837, 350 N.W.2d 65 (1984).

Section 50.135 (1), as incorporated in sub. (1) (i), requires that all of the specifically enumerated facilities must be places licensed or approved by DHFS. A VA hospital is subject to federal regulation but is not licensed or regulated by the state and thus not within the definition of inpatient health care facility. State v. Powers, 2004 WI App 156, 276 Wis. 2d 107, 687 N.W.2d 50, 03-1514.

Seeking Justice in Death's Waiting Room: Barriers to Effectively Prosecuting Crime in Long-term Care Facilities. Hanrahan. Wis. Law. Aug. 2004.

A Response: Issues Affecting Long-term Care. Purtell. Wis. Law. Oct. 2004.

940.30 False imprisonment.

Whoever intentionally confines or restrains another without the person's consent and with knowledge that he or she has no lawful authority to do so is guilty of a Class H felony.

History: 1977 c. 173; 2001 a. 109.

False imprisonment is not a lesser included offense of the crime of kidnapping. Geitner v. State, 59 Wis. 2d 128, 207 N.W.2d 837.

A victim need only take advantage of reasonable means of escape; a victim need not expose himself or herself or others to danger in attempt to escape. State v. C.V.C. 153 Wis. 2d 145, 450 N.W.2d 463 (Ct. App. 1989).

False imprisonment, or confinement, is the intentional, unlawful, and uncontested restraint by one person of the physical liberty of another. State v. Burroughs, 2002 WI App 18, 250 Wis. 2d 180, 640 N.W.2d 190, 01-0738.

In the context of false imprisonment, consent means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to be confined or restrained. Under the circumstances of the case, even if the jury did not believe that the victim said no, a reasonable jury could have determined beyond a reasonable doubt that she did not consent to the restraint. State v. Long, 2009 WI 36, 317 Wis. 2d 92, 765 N.W.2d 557, 07-2307.

940.302 Human trafficking.

(1) In this section:

(a) "Commercial sex act" means sexual contact for which anything of value is given to, promised, or received, directly or indirectly, by any person.

(b) "Debt bondage" means the condition of a debtor arising from the debtor's pledge of services as a security for debt if the reasonable value of those services is not applied toward repaying the debt or if the length and nature of the services are not defined.

(c) "Services" means activities performed by one individual at the request, under the supervision, or for the benefit of another person.

(d) "Trafficking" means recruiting, enticing, harboring, transporting, providing, or obtaining, or attempting to recruit, entice, harbor, transport, provide, or obtain, an individual without consent of the individual.

(2) 

(a) Except as provided in s. 948.051, whoever knowingly engages in trafficking is guilty of a Class D felony if all of the following apply:

1. One of the following applies:

a. The trafficking is for the purposes of labor or services.

b. The trafficking is for the purposes of a commercial sex act.

2. The trafficking is done by any of the following:

a. Causing or threatening to cause bodily harm to any individual.

b. Causing or threatening to cause financial harm to any individual.

c. Restraining or threatening to restrain any individual.

d. Violating or threatening to violate a law.

e. Destroying, concealing, removing, confiscating, or possessing, or threatening to destroy, conceal, remove, confiscate, or possess, any actual or purported passport or any other actual or purported official identification document of any individual.

f. Extortion.

g. Fraud or deception.

h. Debt bondage.

i. Controlling any individual's access to an addictive controlled substance.

j. Using any scheme or pattern to cause an individual to believe that any individual would suffer bodily harm, financial harm, restraint, or other harm.

(b) Whoever benefits in any manner from a violation of par. (a) is guilty of a Class D felony if the person knows that the benefits come from an act described in par. (a).

(3) Any person who incurs an injury or death as a result of a violation of sub. (2) may bring a civil action against the person who committed the violation. In addition to actual damages, the court may award punitive damages to the injured party, not to exceed treble the amount of actual damages incurred, and reasonable attorney fees.

History: 2007 a. 116.

Halting Modern Slavery in the Midwest: The Potential of Wisconsin Act 116 to Improve the State and Federal Response to Human Trafficking. Ozalp. 2009 WLR 1391.

940.305 Taking hostages.

(1) Except as provided in sub. (2), whoever by force or threat of imminent force seizes, confines or restrains a person without the person's consent and with the intent to use the person as a hostage in order to influence a person to perform or not to perform some action demanded by the actor is guilty of a Class B felony.

(2) Whoever commits a violation specified under sub. (1) is guilty of a Class C felony if, before the time of the actor's arrest, each person who is held as a hostage is released without bodily harm.

History: 1979 c. 118; 1993 a. 194; 2001 a. 109.

The constitutionality of s. 940.305 is upheld. State v. Bertrand, 162 Wis. 2d 411, 469 N.W.2d 873 (Ct. App. 1991).

940.31 Kidnapping.

(1) Whoever does any of the following is guilty of a Class C felony:

(a) By force or threat of imminent force carries another from one place to another without his or her consent and with intent to cause him or her to be secretly confined or imprisoned or to be carried out of this state or to be held to service against his or her will; or

(b) By force or threat of imminent force seizes or confines another without his or her consent and with intent to cause him or her to be secretly confined or imprisoned or to be carried out of this state or to be held to service against his or her will; or

(c) By deceit induces another to go from one place to another with intent to cause him or her to be secretly confined or imprisoned or to be carried out of this state or to be held to service against his or her will.

(2) 

(a) Except as provided in par. (b), whoever violates sub. (1) with intent to cause another to transfer property in order to obtain the release of the victim is guilty of a Class B felony.

(b) Whoever violates sub. (1) with intent to cause another to transfer property in order to obtain the release of the victim is guilty of a Class C felony if the victim is released without permanent physical injury prior to the time the first witness is sworn at the trial.

History: 1977 c. 173; 1993 a. 194, 486; 2001 a. 109.

A conviction under sub. (1) (c) does not require proof of express or implied misrepresentations. State v. Dalton, 98 Wis. 2d 725, 298 N.W.2d 398 (Ct. App. 1980).

"Service," as used in this section includes acts done at the command of another and clearly embraces sexual acts performed at the command of another. State v. Clement, 153 Wis. 2d 287, 450 N.W.2d 789 (Ct. App. 1989).

Parental immunity does not extend to an agent acting for the parent. State v. Simplot, 180 Wis. 2d 383, 509 N.W.2d 338 (Ct. App. 1993).

Forced movement of a person from one part of a building to another satisfies the "carries another from one place to another" element of sub. (1) (a). State v. Wagner, 191 Wis. 2d 322, 528 N.W.2d 85 (Ct. App. 1995).

Confinement is the intentional, unlawful, and uncontested restraint by one person of the physical liberty of another. State v. Burroughs, 2002 WI App 18, 250 Wis. 2d 180, 640 N.W.2d 190, 01-0738.

Sub. (2) (b) allows for a lesser degree of kidnapping if two additional elements are present: 1) the victim is released prior to the first witness testimony, and 2) there is no permanent physical injury to the victim. Once there is some evidence of the mitigating factor of no permanent injury, the burden is on the state to prove the absence of that factor and a court accepting a guilty plea to a charged kidnapping offense under sub. (2) (a) should ascertain a factual basis for excluding the lesser-related offense under sub. (2) (b). State v. Ravesteijn, 2006 WI App 250, 297 Wis. 2d 663, 727 N.W.2d 53, 05-1955.

940.32 Stalking.

(1) In this section:

(a) "Course of conduct" means a series of 2 or more acts carried out over time, however short or long, that show a continuity of purpose, including any of the following:

1. Maintaining a visual or physical proximity to the victim.

2. Approaching or confronting the victim.

3. Appearing at the victim's workplace or contacting the victim's employer or coworkers.

4. Appearing at the victim's home or contacting the victim's neighbors.

5. Entering property owned, leased, or occupied by the victim.

6. Contacting the victim by telephone or causing the victim's telephone or any other person's telephone to ring repeatedly or continuously, regardless of whether a conversation ensues.

6m. Photographing, videotaping, audiotaping, or, through any other electronic means, monitoring or recording the activities of the victim. This subdivision applies regardless of where the act occurs.

7. Sending material by any means to the victim or, for the purpose of obtaining information about, disseminating information about, or communicating with the victim, to a member of the victim's family or household or an employer, coworker, or friend of the victim.

8. Placing an object on or delivering an object to property owned, leased, or occupied by the victim.

9. Delivering an object to a member of the victim's family or household or an employer, coworker, or friend of the victim or placing an object on, or delivering an object to, property owned, leased, or occupied by such a person with the intent that the object be delivered to the victim.

10. Causing a person to engage in any of the acts described in subds. 1. to 9.

(am) "Domestic abuse" has the meaning given in s. 813.12 (1) (am).

(ap) "Domestic abuse offense" means an act of domestic abuse that constitutes a crime.

(c) "Labor dispute" includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

(cb) "Member of a family" means a spouse, parent, child, sibling, or any other person who is related by blood or adoption to another.

(cd) "Member of a household" means a person who regularly resides in the household of another or who within the previous 6 months regularly resided in the household of another.

(cg) "Personally identifiable information" has the meaning given in s. 19.62 (5).

(cr) "Record" has the meaning given in s. 19.32 (2).

(d) "Suffer serious emotional distress" means to feel terrified, intimidated, threatened, harassed, or tormented.

(2) Whoever meets all of the following criteria is guilty of a Class I felony:

(a) The actor intentionally engages in a course of conduct directed at a specific person that would cause a reasonable person under the same circumstances to suffer serious emotional distress or to fear bodily injury to or the death of himself or herself or a member of his or her family or household.

(b) The actor knows or should know that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.

(c) The actor's acts cause the specific person to suffer serious emotional distress or induce fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.

(2e) Whoever meets all of the following criteria is guilty of a Class I felony:

(a) After having been convicted of sexual assault under s. 940.225, 948.02, 948.025, or 948.085 or a domestic abuse offense, the actor engages in any of the acts listed in sub. (1) (a) 1. to 10., if the act is directed at the victim of the sexual assault or the domestic abuse offense.

(b) The actor knows or should know that the act will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.

(c) The actor's act causes the specific person to suffer serious emotional distress or induces fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.

(2m) Whoever violates sub. (2) is guilty of a Class H felony if any of the following applies:

(a) The actor has a previous conviction for a violent crime, as defined in s. 939.632 (1) (e) 1., or a previous conviction under this section or s. 947.013 (1r), (1t), (1v), or (1x).

(b) The actor has a previous conviction for a crime, the victim of that crime is the victim of the present violation of sub. (2), and the present violation occurs within 7 years after the prior conviction.

(c) The actor intentionally gains access or causes another person to gain access to a record in electronic format that contains personally identifiable information regarding the victim in order to facilitate the violation.

(d) The person violates s. 968.31 (1) or 968.34 (1) in order to facilitate the violation.

(e) The victim is under the age of 18 years at the time of the violation.

(3) Whoever violates sub. (2) is guilty of a Class F felony if any of the following applies:

(a) The act results in bodily harm to the victim or a member of the victim's family or household.

(b) The actor has a previous conviction for a violent crime, as defined in s. 939.632 (1) (e) 1., or a previous conviction under this section or s. 947.013 (1r), (1t), (1v) or (1x), the victim of that crime is the victim of the present violation of sub. (2), and the present violation occurs within 7 years after the prior conviction.

(c) The actor uses a dangerous weapon in carrying out any of the acts listed in sub. (1) (a) 1. to 9.

(3m) A prosecutor need not show that a victim received or will receive treatment from a mental health professional in order to prove that the victim suffered serious emotional distress under sub. (2) (c) or (2e) (c).

(4) 

(a) This section does not apply to conduct that is or acts that are protected by the person's right to freedom of speech or to peaceably assemble with others under the state and U.S. constitutions, including, but not limited to, any of the following:

1. Giving publicity to and obtaining or communicating information regarding any subject, whether by advertising, speaking or patrolling any public street or any place where any person or persons may lawfully be.

2. Assembling peaceably.

3. Peaceful picketing or patrolling.

(b) Paragraph (a) does not limit the activities that may be considered to serve a legitimate purpose under this section.

(5) This section does not apply to conduct arising out of or in connection with a labor dispute.

(6) The provisions of this statute are severable. If any provision of this statute is invalid or if any application thereof is invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.

History: 1993 a. 96, 496; 2001 a. 109; 2003 a. 222, 327; 2005 a. 277.

This section does not violate the right to interstate travel and is not unconstitutionally vague or overbroad. State v. Ruesch, 214 Wis. 2d 548, 571 N.W.2d 898 (Ct. App. 1997), 96-2280.

The actor's "acts" under sub. (2) (c) are not the equivalent of the actor's "course of conduct" under sub. (2) (a). There must be proof that the actor's acts caused fear and not that the course of conduct caused fear. State v. Sveum, 220 Wis. 2d 396, 584 N.W.2d 137 (Ct. App. 1998), 97-2185.

A "previous conviction for a violent crime" is a substantive element of the Class H felony stalking offense under sub. (2m) (a), not a penalty enhancer. It was not error to allow the introduction of evidence at trial that the defendant had stipulated to having a previous conviction for a violent crime, nor was it error to instruct the jury to make a finding on that matter. State v. Warbelton, 2009 WI 6, 315 Wis. 2d 253, 759 N.W.2d 557, 07-0105.

The 7-year time restriction specified in sub. (2m) (b) requires that only the final act charged as part of a course of conduct occur within 7 years of the previous conviction, and does not restrict by time the other acts used to establish the underlying course of conduct element of sub. (2). State v. Conner, 2009 WI App 143, 321 Wis. 2d 449, 775 N.W.2d 105, 08-1296.

Although the acts in this case spanned apparently fewer than 15 minutes, this section specifically provides that stalking may be a series of 2 acts over a short time if the acts show a continuity of purpose. State v. Eichorn, 2010 WI App 70, 325 Wis. 2d 241, 783 N.W.2d 902, 09-1864.

940.34 Duty to aid victim or report crime.

(1) 

(a) Whoever violates sub. (2) (a) is guilty of a Class C misdemeanor.

(b) Whoever violates sub. (2) (b) is guilty of a Class C misdemeanor and is subject to discipline under s. 440.26 (6).

(c) Whoever violates sub. (2) (c) is guilty of a Class C misdemeanor.

(2) 

(a) Any person who knows that a crime is being committed and that a victim is exposed to bodily harm shall summon law enforcement officers or other assistance or shall provide assistance to the victim.

(b) Any person licensed as a private detective or granted a private security permit under s. 440.26 who has reasonable grounds to believe that a crime is being committed or has been committed shall notify promptly an appropriate law enforcement agency of the facts which form the basis for this belief.

(c)

1. In this paragraph, "unlicensed private security person" means a private security person, as defined in s. 440.26 (1m) (h), who is exempt from the permit and licensure requirements of s. 440.26.

2. Any unlicensed private security person who has reasonable grounds to believe that a crime is being committed or has been committed shall notify promptly an appropriate law enforcement agency of the facts which form the basis for this belief.

(d) A person need not comply with this subsection if any of the following apply:

1. Compliance would place him or her in danger.

2. Compliance would interfere with duties the person owes to others.

3. In the circumstances described under par. (a), assistance is being summoned or provided by others.

4. In the circumstances described under par. (b) or (c), the crime or alleged crime has been reported to an appropriate law enforcement agency by others.

(2m) If a person is subject to sub. (2) (b) or (c), the person need not comply with sub. (2) (b) or (c) until after he or she has summoned or provided assistance to a victim.

(3) If a person renders emergency care for a victim, s. 895.48 (1) applies. Any person who provides other reasonable assistance under this section is immune from civil liability for his or her acts or omissions in providing the assistance. This immunity does not apply if the person receives or expects to receive compensation for providing the assistance.

History: 1983 a. 198; 1985 a. 152, 332; 1987 a. 14; 1995 a. 461.

This section is not unconstitutional. For a conviction, it must be proved that an accused believed a crime was being committed and that a victim was exposed to bodily harm. The reporting required does not require the defendant to incriminate himself or herself as the statute contains no mandate that an individual identify himself or herself. Whether a defendant fits within an exception under sub. (2) (d) is a matter of affirmative defense. State v. LaPlante, 186 Wis. 2d 427, 521 N.W.2d 448 (Ct. App. 1994).

940.41 Definitions.

In ss. 940.42 to 940.49:

(1g) "Law enforcement agency" has the meaning given in s. 165.83 (1) (b).

(1r) "Malice" or "maliciously" means an intent to vex, annoy or injure in any way another person or to thwart or interfere in any manner with the orderly administration of justice.

(2) "Victim" means any natural person against whom any crime as defined in s. 939.12 or under the laws of the United States is being or has been perpetrated or attempted in this state.

(3) "Witness" means any natural person who has been or is expected to be summoned to testify; who by reason of having relevant information is subject to call or likely to be called as a witness, whether or not any action or proceeding has as yet been commenced; whose declaration under oath is received as evidence for any purpose; who has provided information concerning any crime to any peace officer or prosecutor; who has provided information concerning a crime to any employee or agent of a law enforcement agency using a crime reporting telephone hotline or other telephone number provided by the law enforcement agency; or who has been served with a subpoena issued under s. 885.01 or under the authority of any court of this state or of the United States.

History: 1981 c. 118; 1993 a. 128.

940.42 Intimidation of witnesses; misdemeanor.

Except as provided in s. 940.43, whoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade any witness from attending or giving testimony at any trial, proceeding or inquiry authorized by law, is guilty of a Class A misdemeanor.

History: 1981 c. 118.

When a mother and child were to testify against the defendant and the defendant sent letters to the mother urging that she and the child not testify, regardless of whether the letters were addressed to the child or the child was aware of the letter's contents, the defendant attempted to dissuade the child through her mother. As the mother of the minor child, had the parental responsibility and practical authority to monitor communications by third parties with the child, and to influence whether the child cooperated with the court proceedings, there was sufficient evidence to convict. State v. Moore, 2006 WI App 61, 292 Wis. 2d 101, 713 N.W.2d 131, 04-3227.

This section supports charging a person with a separate count for each letter sent, and each other act performed, for the purpose of attempting to dissuade any witness from attending or giving testimony at a court proceeding or trial. State v. Moore, 2006 WI App 61, 292 Wis. 2d 101, 713 N.W.2d 131, 04-3227.

940.43 Intimidation of witnesses; felony.

Whoever violates s. 940.42 under any of the following circumstances is guilty of a Class G felony:

(1) Where the act is accompanied by force or violence or attempted force or violence upon the witness, or the spouse, child, stepchild, foster child, parent, sibling, or grandchild of the witness, or any person sharing a common domicile with the witness.

(2) Where the act is accompanied by injury or damage to the real or personal property of any person covered under sub. (1).

(3) Where the act is accompanied by any express or implied threat of force, violence, injury or damage described in sub. (1) or (2).

(4) Where the act is in furtherance of any conspiracy.

(5) Where the act is committed by any person who has suffered any prior conviction for any violation under s. 943.30, 1979 stats., ss. 940.42 to 940.45, or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation under ss. 940.42 to 940.45.

(6) Where the act is committed by any person for monetary gain or for any other consideration acting on the request of any other person. All parties to the transactions are guilty under this section.

(7) Where the act is committed by a person who is charged with a felony in connection with a trial, proceeding, or inquiry for that felony.

History: 1981 c. 118; 1997 a. 143; 2001 a. 109; 2005 a. 280; 2007 a. 96; 2009 a. 28.

Conspiracy to intimidate a witness is included under sub. (4). State v. Seibert, 141 Wis. 2d 753, 416 N.W.2d 900 (Ct. App. 1987).

940.44 Intimidation of victims; misdemeanor.

Except as provided in s. 940.45, whoever knowingly and maliciously prevents or dissuades, or who attempts to so prevent or dissuade, another person who has been the victim of any crime or who is acting on behalf of the victim from doing any of the following is guilty of a Class A misdemeanor:

(1) Making any report of the victimization to any peace officer or state, local or federal law enforcement or prosecuting agency, or to any judge.

(2) Causing a complaint, indictment or information to be sought and prosecuted and assisting in the prosecution thereof.

(3) Arresting or causing or seeking the arrest of any person in connection with the victimization.

History: 1981 c. 118.

A jury instruction for a violation of s. 940.44 should specify the underlying crime and that a defendant cannot be found guilty of intimidating a victim of a crime unless the elements of the underlying crime are proved beyond a reasonable doubt. State v. Thomas, 161 Wis. 2d 616, 468 N.W.2d 729 (Ct. App. 1991).

Acquittal on the underlying charge does not require acquittal on a charge under s. 940.44 as the jury may have exercised its right to return a not guilty verdict irrespective of evidence on the underlying charge. State v. Thomas, 161 Wis. 2d 616, 468 N.W.2d 729 (Ct. App. 1991).

The disorderly conduct statute, s. 947.01, does not require a victim, but when the disorderly conduct is directed at a person, that person is the victim for the purpose of prosecuting the perpetrator for intimidating a victim under this section. State v. Vinje, 201 Wis. 2d 98, 548 N.W.2d 118 (Ct. App. 1996), 95-1484.

In the phrase "causing a complaint ... to be sought and prosecuted and assisting in the prosecution thereof" in sub. (2), "and" is read in the disjunctive. Sub. (2) includes alleged acts of intimidation that occur after a victim has caused a complaint to be sought and applies to all acts of intimidation that attempt to prevent or dissuade a crime victim from providing any one or more of the following forms of assistance to prosecutors: 1) causing a complaint, indictment or information to be sought; 2) causing a complaint to be prosecuted; or, more generally, 3) assisting in a prosecution. State v. Freer, 2010 WI App 9, 323 Wis. 2d 29, 779 N.W.2d 12, 08-2233.

940.45 Intimidation of victims; felony.

Whoever violates s. 940.44 under any of the following circumstances is guilty of a Class G felony:

(1) Where the act is accompanied by force or violence or attempted force or violence upon the victim, or the spouse, child, stepchild, foster child, parent, sibling, or grandchild of the victim, or any person sharing a common domicile with the victim.

(2) Where the act is accompanied by injury or damage to the real or personal property of any person covered under sub. (1).

(3) Where the act is accompanied by any express or implied threat of force, violence, injury or damage described in sub. (1) or (2).

(4) Where the act is in furtherance of any conspiracy.

(5) Where the act is committed by any person who has suffered any prior conviction for any violation under s. 943.30, 1979 stats., ss. 940.42 to 940.45, or any federal statute or statute of any other state which, if the act prosecuted was committed in this state, would be a violation under ss. 940.42 to 940.45.

(6) Where the act is committed by any person for monetary gain or for any other consideration acting on the request of any other person. All parties to the transactions are guilty under this section.

History: 1981 c. 118; 1997 a. 143; 2001 a. 109; 2007 a. 96; 2009 a. 28.

940.46 Attempt prosecuted as completed act.

Whoever attempts the commission of any act prohibited under ss. 940.42 to 940.45 is guilty of the offense attempted without regard to the success or failure of the attempt. The fact that no person was injured physically or in fact intimidated is not a defense against any prosecution under ss. 940.42 to 940.45.

History: 1981 c. 118.

940.47 Court orders.

Any court with jurisdiction over any criminal matter, upon substantial evidence, which may include hearsay or the declaration of the prosecutor, that knowing and malicious prevention or dissuasion of any person who is a victim or who is a witness has occurred or is reasonably likely to occur, may issue orders including but not limited to any of the following:

(1) An order that a defendant not violate ss. 940.42 to 940.45.

(2) An order that a person before the court other than a defendant, including, but not limited to, a subpoenaed witness or other person entering the courtroom of the court, not violate ss. 940.42 to 940.45.

(3) An order that any person described in sub. (1) or (2) maintain a prescribed geographic distance from any specified witness or victim.

(4) An order that any person described in sub. (1) or (2) have no communication with any specified witness or any victim, except through an attorney under such reasonable restrictions as the court may impose.

History: 1981 c. 118.

940.48 Violation of court orders.

Whoever violates an order issued under s. 940.47 may be punished as follows:

(1) If applicable, the person may be prosecuted under ss. 940.42 to 940.45.

(2) As a contempt of court under ch. 785. A finding of contempt is not a bar to prosecution under ss. 940.42 to 940.45, but:

(a) Any person who commits a contempt of court is entitled to credit for any punishment imposed therefor against any sentence imposed on conviction under ss. 940.42 to 940.45; and

(b) Any conviction or acquittal for any substantive offense under ss. 940.42 to 940.45 is a bar to subsequent punishment for contempt arising out of the same act.

(3) By the revocation of any form of pretrial release or forfeiture of bail and the issuance of a bench warrant for the defendant's arrest or remanding the defendant to custody. After hearing and on substantial evidence, the revocation may be made whether the violation of order complained of has been committed by the defendant personally or was caused or encouraged to have been committed by the defendant.

History: 1981 c. 118.

940.49 Pretrial release.

Any pretrial release of any defendant whether on bail or under any other form of recognizance shall be deemed to include a condition that the defendant neither do, nor cause to be done, nor permit to be done on his or her behalf, any act proscribed by ss. 940.42 to 940.45 and any willful violation of the condition is subject to punishment as prescribed in s. 940.48 (3) whether or not the defendant was the subject of an order under s. 940.47.

History: 1981 c. 118.

CA Penal Code §261

(a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

(1) Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving consent.

(2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.

(3) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.

(4) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions:

(A) Was unconscious or asleep.

(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.

(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.

(D) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.

(5) Where a person submits under the belief that the person committing the act is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.

(6) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.

(7) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.

(b) As used in this section, "duress" means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in appraising the existence of duress.

(c) As used in this section, "menace" means any threat, declaration, or act which shows an intention to inflict an injury upon another.

CA Penal Code § 261.5

(a) Unlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor. For the purposes of this section, a "minor" is a person under the age of 18 years and an "adult" is a person who is at least 18 years of age.

(b) Any person who engages in an act of unlawful sexual intercourse with a minor who is not more than three years older or three years younger than the perpetrator, is guilty of a misdemeanor.

(c) Any person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170.

(d) Any person 21 years of age or older who engages in an act of unlawful sexual intercourse with a minor who is under 16 years of age is guilty of either a misdemeanor or a felony, and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

(e)

(1) Notwithstanding any other provision of this section, an adult who engages in an act of sexual intercourse with a minor in violation of this section may be liable for civil penalties in the following amounts:

(A) An adult who engages in an act of unlawful sexual intercourse with a minor less than two years younger than the adult is liable for a civil penalty not to exceed two thousand dollars ($2,000).

(B) An adult who engages in an act of unlawful sexual intercourse with a minor at least two years younger than the adult is liable for a civil penalty not to exceed five thousand dollars ($5,000).

(C) An adult who engages in an act of unlawful sexual intercourse with a minor at least three years younger than the adult is liable for a civil penalty not to exceed ten thousand dollars ($10,000).

(D) An adult over the age of 21 years who engages in an act of unlawful sexual intercourse with a minor under 16 years of age is liable for a civil penalty not to exceed twenty-five thousand dollars ($25,000).

(2) The district attorney may bring actions to recover civil penalties pursuant to this subdivision. From the amounts collected for each case, an amount equal to the costs of pursuing the action shall be deposited with the treasurer of the county in which the judgment was entered, and the remainder shall be deposited in the Underage Pregnancy Prevention Fund, which is hereby created in the State Treasury. Amounts deposited in the Underage Pregnancy Prevention Fund may be used only for the purpose of preventing underage pregnancy upon appropriation by the Legislature.

(3) In addition to any punishment imposed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.

CA Penal Code § 261.6

In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, "consent" shall be defined to mean positive cooperation in act or attitude pursuant to an exercise of free will. The person must act freely and voluntarily and have knowledge of the nature of the act or transaction involved.

A current or previous dating or marital relationship shall not be sufficient to constitute consent where consent is at issue in a prosecution under Section 261, 262, 286, 288a, or 289.

Nothing in this section shall affect the admissibility of evidence or the burden of proof on the issue of consent.

CA Penal Code § 261.7

In prosecutions under Section 261, 262, 286, 288a, or 289, in which consent is at issue, evidence that the victim suggested, requested, or otherwise communicated to the defendant that the defendant use a condom or other birth control device, without additional evidence of consent, is not sufficient to constitute consent.

CA Penal Code § 261.9

(a) Any person convicted of seeking to procure or procuring the sexual services of a prostitute in violation of subdivision (b) of Section 647, if the prostitute is under 18 years of age, shall be ordered by the court, in addition to any other penalty or fine imposed, to pay an additional fine in an amount not to exceed twenty-five thousand dollars ($25,000).

(b) Every fine imposed and collected pursuant to this section shall, upon appropriation by the Legislature, be available to fund programs and services for commercially sexually exploited minors in the counties where the underlying offenses are committed.

CA Penal Code § 262

(a) Rape of a person who is the spouse of the perpetrator is an act of sexual intercourse accomplished under any of the following circumstances:

(1) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.

(2) Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known, by the accused.

(3) Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions:

(A) Was unconscious or asleep.

(B) Was not aware, knowing, perceiving, or cognizant that the act occurred.

(C) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.

(4) Where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat. As used in this paragraph, "threatening to retaliate" means a threat to kidnap or falsely imprison, or to inflict extreme pain, serious bodily injury, or death.

(5) Where the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official. As used in this paragraph, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official.

(b) As used in this section, "duress" means a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform an act which otherwise would not have been performed, or acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and his or her relationship to the defendant, are factors to consider in apprising the existence of duress.

(c) As used in this section, "menace" means any threat, declaration, or act that shows an intention to inflict an injury upon another.

(d) If probation is granted upon conviction of a violation of this section, the conditions of probation may include, in lieu of a fine, one or both of the following requirements:

(1) That the defendant make payments to a battered women's shelter, up to a maximum of one thousand dollars ($1,000).

(2) That the defendant reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's offense.

For any order to pay a fine, make payments to a battered women's shelter, or pay restitution as a condition of probation under this subdivision, the court shall make a determination of the defendant's ability to pay. In no event shall any order to make payments to a battered women's shelter be made if it would impair the ability of the defendant to pay direct restitution to the victim or court-ordered child support. Where the injury to a married person is caused in whole or in part by the criminal acts of his or her spouse in violation of this section, the community property may not be used to discharge the liability of the offending spouse for restitution to the injured spouse, required by Section 1203.04, as operative on or before August 2, 1995, or Section 1202.4, or to a shelter for costs with regard to the injured spouse and dependents, required by this section, until all separate property of the offending spouse is exhausted.

CA Penal Code § 263

The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime.

CA Penal Code § 264

(a) Except as provided in subdivision (c), rape, as defined in Section 261 or 262, is punishable by imprisonment in the state prison for three, six, or eight years.

(b) In addition to any punishment imposed under this section the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates Section 261 or 262 with the proceeds of this fine to be used in accordance with Section 1463.23. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.

(c)

(1) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a child who is under 14 years of age shall be punished by imprisonment in the state prison for 9, 11, or 13 years.

(2) Any person who commits rape in violation of paragraph (2) of subdivision (a) of Section 261 upon a minor who is 14 years of age or older shall be punished by imprisonment in the state prison for 7, 9, or 11 years.

(3) This subdivision does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.

CA Penal Code § 264.1

(a) The provisions of Section 264 notwithstanding, in any case in which the defendant, voluntarily acting in concert with another person, by force or violence and against the will of the victim, committed an act described in Section 261, 262, or 289, either personally or by aiding and abetting the other person, that fact shall be charged in the indictment or information and if found to be true by the jury, upon a jury trial, or if found to be true by the court, upon a court trial, or if admitted by the defendant, the defendant shall suffer confinement in the state prison for five, seven, or nine years.

(b)

(1) If the victim of an offense described in subdivision (a) is a child who is under 14 years of age, the defendant shall be punished by imprisonment in the state prison for 10, 12, or 14 years.

(2) If the victim of an offense described in subdivision (a) is a minor who is 14 years of age or older, the defendant shall be punished by imprisonment in the state prison for 7, 9, or 11 years.

(3) This subdivision does not preclude prosecution under Section 269, Section 288.7, or any other provision of law.

CA Penal Code § 264.2

(a) Whenever there is an alleged violation or violations of subdivision (e) of Section 243, or Section 261, 261.5, 262, 273.5, 286, 288a, or 289, the law enforcement officer assigned to the case shall immediately provide the victim of the crime with the "Victims of Domestic Violence" card, as specified in subparagraph (G) of paragraph (9) of subdivision (c) of Section 13701.

(b)

(1) The law enforcement officer, or his or her agency, shall immediately notify the local rape victim counseling center, whenever a victim of an alleged violation of Section 261, 261.5, 262, 286, 288a, or 289 is transported to a hospital for any medical evidentiary or physical examination. The victim shall have the right to have a sexual assault counselor, as defined in Section 1035.2 of the Evidence Code, and a support person of the victim's choosing present at any medical evidentiary or physical examination.

(2) Prior to the commencement of any initial medical evidentiary or physical examination arising out of a sexual assault, a victim shall be notified orally or in writing by the medical provider that the victim has the right to have present a sexual assault counselor and at least one other support person of the victim's choosing.

(3) The hospital may verify with the law enforcement officer, or his or her agency, whether the local rape victim counseling center has been notified, upon the approval of the victim.

(4) A support person may be excluded from a medical evidentiary or physical examination if the law enforcement officer or medical provider determines that the presence of that individual would be detrimental to the purpose of the examination.

CA Penal Code § 265

Every person who takes any woman unlawfully, against her will, and by force, menace or duress, compels her to marry him, or to marry any other person, or to be defiled, is punishable by imprisonment pursuant to subdivision (h) of Section 1170.

CA Penal Code § 266

Every person who inveigles or entices any unmarried female, of previous chaste character, under the age of 18 years, into any house of ill fame, or of assignation, or elsewhere, for the purpose of prostitution, or to have illicit carnal connection with any man; and every person who aids or assists in such inveiglement or enticement; and every person who, by any false pretenses, false representation, or other fraudulent means, procures any female to have illicit carnal connection with any man, is punishable by imprisonment in the state prison, or by imprisonment in a county jail not exceeding one year, or by a fine not exceeding two thousand dollars ($2,000), or by both such fine and imprisonment.

CA Penal Code § 266a

Every person who, within this state, takes any person against his or her will and without his or her consent, or with his or her consent procured by fraudulent inducement or misrepresentation, for the purpose of prostitution, as defined in subdivision (b) of Section 647, is punishable by imprisonment in the state prison, and a fine not exceeding two thousand dollars ($2,000).

CA Penal Code § 266b

Every person who takes any other person unlawfully, and against his or her will, and by force, menace, or duress, compels him or her to live with such person in an illicit relation, against his or her consent, or to so live with any other person, is punishable by imprisonment pursuant to subdivision (h) of Section 1170.

CA Penal Code § 266c

Every person who induces any other person to engage in sexual intercourse, sexual penetration, oral copulation, or sodomy when his or her consent is procured by false or fraudulent representation or pretense that is made with the intent to create fear, and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person's free will, and does cause the victim to so act, is punishable by imprisonment in a county jail for not more than one year or in the state prison for two, three, or four years.

As used in this section, "fear" means the fear of physical injury or death to the person or to any relative of the person or member of the person's family.

CA Penal Code § 266d

Any person who receives any money or other valuable thing for or on account of placing in custody any other person for the purpose of causing the other person to cohabit with any person to whom the other person is not married, is guilty of a felony.

CA Penal Code § 266e

Every person who purchases, or pays any money or other valuable thing for, any person for the purpose of prostitution as defined in subdivision (b) of Section 647, or for the purpose of placing such person, for immoral purposes, in any house or place against his or her will, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years.

CA Penal Code § 266f

Every person who sells any person or receives any money or other valuable thing for or on account of his or her placing in custody, for immoral purposes, any person, whether with or without his or her consent, is guilty of a felony punishable by imprisonment in the state prison for 16 months, or two or three years.

CA Penal Code § 266g

Every man who, by force, intimidation, threats, persuasion, promises, or any other means, places or leaves, or procures any other person or persons to place or leave, his wife in a house of prostitution, or connives at or consents to, or permits, the placing or leaving of his wife in a house of prostitution, or allows or permits her to remain therein, is guilty of a felony and punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three or four years; and in all prosecutions under this section a wife is a competent witness against her husband.

CA Penal Code § 266h

(a) Except as provided in subdivision (b), any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, is guilty of pimping, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years.

(b) Any person who, knowing another person is a prostitute, lives or derives support or maintenance in whole or in part from the earnings or proceeds of the person's prostitution, or from money loaned or advanced to or charged against that person by any keeper or manager or inmate of a house or other place where prostitution is practiced or allowed, or who solicits or receives compensation for soliciting for the person, when the prostitute is a minor, is guilty of pimping a minor, a felony, and shall be punishable as follows:

(1) If the person engaged in prostitution is a minor 16 years of age or older, the offense is punishable by imprisonment in the state prison for three, four, or six years.

(2) If the person engaged in prostitution is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.

CA Penal Code § 266i

(a) Except as provided in subdivision (b), any person who does any of the following is guilty of pandering, a felony, and shall be punishable by imprisonment in the state prison for three, four, or six years:

(1) Procures another person for the purpose of prostitution.

(2) By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages another person to become a prostitute.

(3) Procures for another person a place as an inmate in a house of prostitution or as an inmate of any place in which prostitution is encouraged or allowed within this state.

(4) By promises, threats, violence, or by any device or scheme, causes, induces, persuades, or encourages an inmate of a house of prostitution, or any other place in which prostitution is encouraged or allowed, to remain therein as an inmate.

(5) By fraud or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority, procures another person for the purpose of prostitution, or to enter any place in which prostitution is encouraged or allowed within this state, or to come into this state or leave this state for the purpose of prostitution.

(6) Receives or gives, or agrees to receive or give, any money or thing of value for procuring, or attempting to procure, another person for the purpose of prostitution, or to come into this state or leave this state for the purpose of prostitution.

(b) Any person who does any of the acts described in subdivision (a) with another person who is a minor is guilty of pandering, a felony, and shall be punishable as follows:

(1) If the other person is a minor 16 years of age or older, the offense is punishable by imprisonment in the state prison for three, four, or six years.

(2) If the other person is under 16 years of age, the offense is punishable by imprisonment in the state prison for three, six, or eight years.

CA Penal Code § 266j

Any person who intentionally gives, transports, provides, or makes available, or who offers to give, transport, provide, or make available to another person, a child under the age of 16 for the purpose of any lewd or lascivious act as defined in Section 288, or who causes, induces, or persuades a child under the age of 16 to engage in such an act with another person, is guilty of a felony and shall be imprisoned in the state prison for a term of three, six, or eight years, and by a fine not to exceed fifteen thousand dollars ($15,000).

CA Penal Code § 266k

(a) Upon the conviction of any person for a violation of Section 266h or 266i, the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed five thousand dollars ($5,000). In setting the amount of the fine, the court shall consider any relevant factors including, but not limited to, the seriousness and gravity of the offense and the circumstances of its commission, whether the defendant derived any economic gain as the result of the crime, and the extent to which the victim suffered losses as a result of the crime. Every fine imposed and collected under this section shall be deposited in the Victim-Witness Assistance Fund to be available for appropriation to fund child sexual exploitation and child sexual abuse victim counseling centers and prevention programs under Section 13837.

(b) Upon the conviction of any person for a violation of Section 266j or 267, the court may, in addition to any other penalty or fine imposed, order the defendant to pay an additional fine not to exceed twenty thousand dollars ($20,000).

(c) Fifty percent of the fines collected pursuant to subdivision (b) and deposited in the Victim-Witness Assistance Fund pursuant to subdivision (a) shall be granted to community-based organizations that serve minor victims of human trafficking.

(d) If the court orders a fine to be imposed pursuant to this section, the actual administrative cost of collecting that fine, not to exceed 2 percent of the total amount paid, may be paid into the general fund of the county treasury for the use and benefit of the county.

CA Penal Code § 267

Every person who takes away any other person under the age of 18 years from the father, mother, guardian, or other person having the legal charge of the other person, without their consent, for the purpose of prostitution, is punishable by imprisonment in the state prison, and a fine not exceeding two thousand dollars ($2,000).

CA Penal Code § 269

(a) Any person who commits any of the following acts upon a child who is under 14 years of age and seven or more years younger than the person is guilty of aggravated sexual assault of a child:

(1) Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261.

(2) Rape or sexual penetration, in concert, in violation of Section 264.1.

(3) Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286.

(4) Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 288a.

(5) Sexual penetration, in violation of subdivision (a) of Section 289.

(b) Any person who violates this section is guilty of a felony and shall be punished by imprisonment in the state prison for 15 years to life.

(c) The court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.

CA Penal Code § 289. Forcible acts of sexual penetration; punishment

[. . .]

(e) Any person who commits an act of sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.

The American Law Institute (ALI) is a group of lawyers and legal scholars whose goal is to clarify the common law. They do so via the Model Penal Code, first promulgated in 1962. The rape provisions (213 et seq) have never been widely adopted. Beginning in 2014, the ALI’s Council met to begin the process of revising the rape provisions. The process has been highly fraught. Today, six years into the process, very little has been settled. 

Among the most interesting debates is the question of how to define “consent.”  Arguments included whether or not the burden of proof should be on the defendant, what consent means in the eyes of the law, and what fraudulent consent would look like, among other things. 

In the 2016 Tentative Draft No. 2, ALI defined § 213.0(3) Definition of Consent and § 213.2 Sexual Penetration Without Consent. 

SECTION 213.2 - SEXUAL PENETRATION WITHOUT CONSENT.

Sexual Penetration Without Consent. An actor is guilty of Sexual Penetration Without Consent if he or she engages in an act of sexual penetration and knows, or consciously disregards a substantial risk, that the other person has not given consent. 

Sexual Penetration Without Consent is a felony of the fourth degree. 

SECTION 213.0 DEFINITIONS

(3) “Consent”

(a) “Consent” means a person’s behavior, including words and conduct - both action and inaction - that communicates the person’s willingness to engage in a specific act of sexual penetration or sexual contact

(b) Notwithstanding subsection (3)(a) of this Section, behavior does not constitute consent when it is the result of conduct specifically prohibited by Sections 13 [reserved].

(c) Consent may be expressed or it may be inferred from a person’s behavior. Neither verbal nor physical resistance is required to establish the absence of consent; the person’s behavior must be assessed in the context of all the circumstances to determine where the person has consented.

(d) Consent may be revoked any time before or during the act of sexual penetration or sexual contact, by behavior communicating that the person is no longer willing. A clear verbal refusal - such as “No,” “Stop,” or “Don’t” suffices to establish the lack of consent. A clear verbal refusal also suffices to withdraw previously communicated willingness in the absence of subsequent behavior that communicates willingness before the sexual act.

CA Education Code § 67386. Adoption of policy concerning sexual assault, domestic violence, dating violence, and stalking; receipt of state funds; contents of policy

(a) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt a policy concerning sexual assault, domestic violence, dating violence, and stalking, as defined in the federal Higher Education Act of 1965 (20 U.S.C. Sec. 1092(f)), involving a student, both on and off campus. The policy shall include all of the following:

(1) An affirmative consent standard in the determination of whether consent was given by both parties to sexual activity. “Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

(2) A policy that, in the evaluation of complaints in any disciplinary process, it shall not be a valid excuse to alleged lack of affirmative consent that the accused believed that the complainant consented to the sexual activity under either of the following circumstances:

(A) The accused's belief in affirmative consent arose from the intoxication or recklessness of the accused.

(B) The accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain whether the complainant affirmatively consented.

(3) A policy that the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.

(4) A policy that, in the evaluation of complaints in the disciplinary process, it shall not be a valid excuse that the accused believed that the complainant affirmatively consented to the sexual activity if the accused knew or reasonably should have known that the complainant was unable to consent to the sexual activity under any of the following circumstances:

(A) The complainant was asleep or unconscious.

(B) The complainant was incapacitated due to the influence of drugs, alcohol, or medication, so that the complainant could not understand the fact, nature, or extent of the sexual activity.

(C) The complainant was unable to communicate due to a mental or physical condition.

(b) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall adopt detailed and victim-centered policies and protocols regarding sexual assault, domestic violence, dating violence, and stalking involving a student that comport with best practices and current professional standards. At a minimum, the policies and protocols shall cover all of the following:

(1) A policy statement on how the institution will provide appropriate protections for the privacy of individuals involved, including confidentiality.

(2) Initial response by the institution's personnel to a report of an incident, including requirements specific to assisting the victim, providing information in writing about the importance of preserving evidence, and the identification and location of witnesses.

(3) Response to stranger and nonstranger sexual assault.

(4) The preliminary victim interview, including the development of a victim interview protocol, and a comprehensive followup victim interview, as appropriate.

(5) Contacting and interviewing the accused.

(6) Seeking the identification and location of witnesses.

(7) Providing written notification to the victim about the availability of, and contact information for, on- and off-campus resources and services, and coordination with law enforcement, as appropriate.

(8) Participation of victim advocates and other supporting people.

(9) Investigating allegations that alcohol or drugs were involved in the incident.

(10) Providing that an individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of the institution's student conduct policy at or near the time of the incident, unless the institution determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty.

(11) The role of the institutional staff supervision.

(12) A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.

(13) Procedures for confidential reporting by victims and third parties.

(c) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall, to the extent feasible, enter into memoranda of understanding, agreements, or collaborative partnerships with existing on-campus and community-based organizations, including rape crisis centers, to refer students for assistance or make services available to students, including counseling, health, mental health, victim advocacy, and legal assistance, and including resources for the accused.

(d) In order to receive state funds for student financial assistance, the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions shall implement comprehensive prevention and outreach programs addressing sexual violence, domestic violence, dating violence, and stalking. A comprehensive prevention program shall include a range of prevention strategies, including, but not limited to, empowerment programming for victim prevention, awareness raising campaigns, primary prevention, bystander intervention, and risk reduction. Outreach programs shall be provided to make students aware of the institution's policy on sexual assault, domestic violence, dating violence, and stalking. At a minimum, an outreach program shall include a process for contacting and informing the student body, campus organizations, athletic programs, and student groups about the institution's overall sexual assault policy, the practical implications of an affirmative consent standard, and the rights and responsibilities of students under the policy.

(e) Outreach programming shall be included as part of every incoming student's orientation.

WILNER, JUDGE, dissenting:

The majority's error, in my judgment, is not in their exposition of the underlying principles of law that must govern this case, but rather in the manner that they have applied those principles. . . .

Under the guise of judging the sufficiency of the evidence presented against appellant, they have tacitly perhaps unwittingly, but nonetheless effectively substitutes their own view of the evidence (and the inferences that may fairly be drawn from it) for that of the judge and jury. In so doing, they have not only improperly invaded the province allotted to those tribunals, but, at the same time, have perpetuated and given new life to myths about the crime of rape that have no place in our law today. . . .

Md. Annot. Code art. 27, s 463(a) considers three types of conduct as constituting second degree rape. We are concerned only with the first: a person is guilty of rape in the second degree if he (1) engages in vaginal intercourse with another person, (2) by force or threat of force, (3) against the will, and (4) without the consent of the other person. There is no real question here as to the first, third, or fourth elements of the crime. The evidence was certainly sufficient to show that appellant had vaginal intercourse with the victim, and that such act was against her will and without her consent. The point at issue is whether it was accomplished by force or threat of force; and I think that in viewing the evidence, that point should remain ever clear. Consent is not the issue here, only whether there was sufficient evidence of force or the threat of force.

Unfortunately, courts, including in the present case a majority of this one, often tend to confuse these two elements force and lack of consent and to think of them as one. They are not. They mean, and require, different things. What seems to cause the confusion what, indeed, has become a common denominator of both elements is the notion that the victim must actively resist the attack upon her. If she fails to offer sufficient resistance (sufficient to the satisfaction of the judge), a court is entitled, or at least presumes the entitlement, to find that there was no force or threat of force, or that the act was not against her will, or that she actually consented to it, or some unarticulated combination or synthesis of these elements that leads to the ultimate conclusion that the victim was not raped. Thus it is that the focus is almost entirely on the extent of resistance The victim's acts, rather than those of her assailant. Attention is directed not to the wrongful stimulus, but to the victim's reactions to it. Right or wrong, that seems to be the current state of the Maryland law; and, notwithstanding its uniqueness in the criminal law, and its illogic, until changed by statute or the Court of Appeals, I accept it as binding.

But what is required of a woman being attacked or in danger of attack? How much resistance must she offer? Where is that line to be drawn between requiring that she either risk serious physical harm, perhaps death, on the one hand, or be termed a willing partner on the other? Some answers were given in Hazel v. State, 221 Md. 464, 157 A.2d 922 (1960), although, as in so many cases, they were stated in the context of both the requirement of force and the lack of consent. . . . 

From . . . pronouncements in Hazel, this Court has articulated what the majority refers to as a “rule of reason” I. e., that “where the victim's story could not be corroborated by wounds, bruises or disordered clothing, the lack of consent could be shown by fear based upon reasonable apprehension.” Winegan v. State, 10 Md.App. 196, 200, 268 A.2d 585, 588 (1970); Goldberg v. State, 41 Md.App. 58, 395 A.2d 1213 (1979). As so phrased, I do not consider this to be a rule of reason at all; it is highly unreasonable, and again mixes the element of consent with that of force. But what I do accept is what the Court of Appeals said in Hazel : (1) if the acts and threats of the defendant were reasonably calculated to create in the mind of the victim having regard to the circumstances in which she was placed a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force; (2) submission is not the equivalent of consent; and (3) the real test is whether the assault was committed without the consent and against the will of the prosecuting witness.

Upon this basis, the evidence against appellant must be considered. . . . The victim - I’ll call her Pat - attended a high school reunion. . . . We know nothing about Pat and appellant. We don’t know how big they are, what they look like, what their life experiences have been. We don’t know if appellant is larger or smaller than she, stronger or weaker. We don’t know what the inflection was in his voice as he dangled her car keys in front of her. We can’t tell whether this was in a jocular vein or a truly threatening one. We have no idea what his mannerisms were. The trial judge and the jury could discern some of these things, of course, because they could observe the two people in court and could listen to what they said and how they said it. But all we know is that, between midnight and 1:00 a.m., in a neighborhood that was strange to Pat, appellant took her car keys, demanded that she accompany him, and most assuredly implied that unless she did so, at the very least, she might be stranded. . . . 

How does the majority Opinion view these events? It starts by noting that Pat was a 21-year old mother who was separated from her husband but not yet divorced, as though that had some significance. To me, it has none, except perhaps (when coupled with the further characterization that Pat and Terry had gone “bar hopping”) to indicate an underlying suspicion, for which there is absolutely no support in the record, that Pat was somehow “on the make”. Even more alarming, and unwarranted, however, is the majority's analysis of Pat's initial reflections on whether to report what had happened. 

It is this type of reasoning if indeed “reasoning” is the right word for it that is particularly distressing. The concern expressed by Pat, made even more real by the majority Opinion of this Court, is one that is common among rape victims, and largely accounts for the fact that most incidents of forcible rape go unreported by the victim. If appellant had desired, and Pat had given, her wallet instead of her body, there would be no question about appellant's guilt of robbery. Taking the car keys under those circumstances would certainly have supplied the requisite threat of force or violence and negated the element of consent. No one would seriously contend that because she failed to raise a hue and cry she had consented to the theft of her money. Why then is such life-threatening action necessary when it is her personal dignity that is being stolen?

Rape has always been considered a most serious crime, one that traditionally carried the heaviest penalty. But until recently, it remained shrouded in the taboos and myths of a Victorian age, and little real attention was given to how rapes occur, how they may be prevented, and how a victim can best protect herself from injury when an attack appears inevitable. 

As the result of the Battelle Study, we now know some things about this crime that we could only guess at before….

Of particular significance is what was learned about Resistance. The most common type of resistance offered by victims is Verbal. Note: verbal resistance Is resistance! In cases arising in the large cities, only 12.7% Of the victims attempted flight, and only 12% Offered physical resistance. The reason for this is apparent from the next thing learned: that “(r)ape victims who resisted were more likely to be injured than ones who did not.” . . . .

Where does this leave us but where we started? A judge and a jury, observing the witnesses and hearing their testimony, concluded without dissent that there was sufficient evidence to find beyond a reasonable doubt that appellant had sexual intercourse with Pat by force or threat of force against her will and without her consent; in other words, that the extent of her resistance and the reasons for her failure to resist further were reasonable. No claim is made here that the jury was misinstructed on the law of rape. Yet a majority of this Court, without the ability to see and hear the witnesses, has simply concluded that, in Their judgment, Pat's fear was not a reasonable one, or that there was no fear at all. . . .

. . . Brushing all of this aside, they have countermanded the judgment of the trial court and jury and declared Pat to have been, in effect, an adulteress. . . .

310 N.C. 399

Supreme Court of North Carolina.

STATE of North Carolina

v.

Edward ALSTON.

No. 246A83.

|

March 6, 1984.

Synopsis

Defendant was convicted in the Superior Court, Durham County, Anthony M. Brannon, J., of kidnapping and second-degree rape, and he appealed. The Court of Appeals, 61 N.C.App. 454, 300 S.E.2d 857, found no error. Defendant again appealed. The Supreme Court, Mitchell, J., held that: (1) evidence failed to establish that defendant had intent to rape victim at time that he removed her from school grounds, and (2) though evidence established that, even in absence of physical resistance by victim, act of sexual intercourse was against her will, it did not establish element of force necessary to sustain second-degree rape conviction.

Reversed and remanded. 

Opinion

MITCHELL, Justice.

The defendant raises on appeal the question whether the evidence of his guilt of ... second degree rape was sufficient to support his conviction .... For reasons discussed herein, we conclude the evidence was insufficient to support his conviction of [second degree rape].

The State’s evidence tended to show that at the time the incident occurred the defendant and the prosecuting witness in this case, Cottie Brown, had been involved for approximately six months in a consensual sexual relationship. During the six months the two had conflicts at times and Brown would leave the apartment she shared with the defendant to stay with her mother. She testified that she would return to the defendant and the apartment they shared when he called to tell her to return. Brown *401 testified that she and the defendant had sexual relations throughout their relationship. Although she sometimes enjoyed their sexual relations, she often had sex with the defendant just to accommodate him. On those occasions, she would stand still and remain entirely passive while the defendant undressed her and had intercourse with her.

Brown testified that at times their consensual sexual relations involved some violence. The defendant had struck her several times throughout the relationship when she refused to give him money or refused to do what he wanted. Around May 15, 1981, the defendant struck her after asking her for money that she refused to give him. Brown left the apartment she shared with the defendant and moved in with her mother. She did not have intercourse with the defendant after May 15 until the alleged rape on June 15. After Brown left the defendant, he called her several times and visited her at Durham Technical Institute where she was enrolled in classes. When he visited her they talked about their relationship. Brown testified that she did not tell him she wanted to break off their relationship because she was afraid he would be angry.

On June 15, 1981, Brown arrived at Durham Technical Institute by taxicab to find the defendant standing close to the school **472 door. The defendant blocked her path as she walked toward the door and asked her where she had moved. Brown refused to tell him, and the defendant grabbed her arm, saying that she was going with him. Brown testified that it would have taken some effort to pull away. The two walked toward the parking lot and Brown told the defendant she would walk with him if he let her go. The defendant then released her. She testified that she did not run away from him because she was afraid of him. She stated that other students were nearby.

Brown stated that she and the defendant then began a casually paced walk in the neighborhood around the school. They walked, sometimes side by side, sometimes with Brown slightly behind the defendant. As they walked they talked about their relationship. Brown said the defendant did not hold her or help her along in any way as they walked. The defendant talked about Brown’s “dogging” him and making him seem a fool and about Brown’s mother’s interference in the relationship. When the *402 defendant and Brown left the parking lot, the defendant threatened to “fix” her face so that her mother could see he was not playing. While they were walking out of the parking lot, Brown told the defendant she wanted to go to class. He replied that she was going to miss class that day.

The two continued to walk away from the school. Brown testified that the defendant continually talked about their relationship as they walked, but that she paid little attention to what he said because she was preoccupied with her own thoughts. They passed several people. They walked along several streets and went down a path close to a wooded area where they stopped to talk. The defendant asked again where Brown had moved. She asked him whether he would let her go if she told him her address. The defendant then asked whether the relationship was over and Brown told him it was. He then said that since everyone could see her but him he had a right to make love to her again. Brown said nothing.

The two turned around at that point and began walking towards a street they had walked down previously. Changing directions, they walked ... side by side with Brown sometimes slightly behind. The defendant did not hold or touch Brown as they walked. Brown testified that the defendant did not say where they were going but that, when he said he wanted to make love, she knew he was going to the house of a friend. She said they had gone to the house on prior occasions to have sex. The defendant and Brown passed the same group of men they had passed previously. Brown did not ask for assistance because some of the men were friends of the defendant, and she assumed they would not help. The defendant and Brown continued to walk to the house of one of the defendant’s friends, Lawrence Taylor.

When they entered the house, Taylor was inside. Brown sat in the living room while the defendant and Taylor went to the back of the house and talked. When asked why she did not try to leave when the defendant and Taylor were in the back of the house, Brown replied, “It was nowhere to go. I don’t know. I just didn’t.” The defendant returned to the living room area and turned on the television. He attempted to fix a broken fan. Brown asked Taylor for a cigarette, and he gave her one.

*403 The defendant began talking to Brown about another man she had been seeing. By that time Taylor had gone out of the room and perhaps the house. The defendant asked if Brown was “ready.” The evidence tended to show that she told him “no, that I wasn’t going to bed with him.” She testified that she did not want to have sex with the defendant and did not consent to do so at any time on June 15.

After Brown finished her cigarette, the defendant began kissing her neck. He pulled her up from the chair in which she had been sitting and started undressing her. He noticed that she was having her menstrual period, and she sat down pulling her pants back up. The defendant again took off her pants and blouse. He told her to **473 lay down on a bed which was in the living room. She complied and the defendant pushed apart her legs and had sexual intercourse with her. Brown testified that she did not try to push him away. She cried during the intercourse. Afterwards they talked. The defendant told her he wanted to make sure she was not lying about where she lived and that he would not let her up unless she told him.

After they dressed they talked again about the man Brown had been seeing. They left the house and went to the defendant’s mother’s house. After talking with the defendant’s mother, Brown took a bus home. She talked with her mother about taking out a complaint against the defendant but did not tell her mother she and the defendant had had sex. Brown made a complaint to the police the same day.

The defendant continued to call Brown after June 15, but she refused to see him. One evening he called from a telephone booth and told her he had to talk. When he got to her apartment he threatened to kick her door down and Brown let him inside. Once inside he said he had intended merely to talk to her but that he wanted to make love again after seeing her. Brown said she sat and looked at him, and that he began kissing her. She pulled away and he picked her up and carried her to the bedroom. He performed oral sex on her and she testified that she did not try to fight him off because she found she enjoyed it. The two stayed together until morning and had sexual intercourse several times that night. Brown did not disclose the incident to the police immediately because she said she was embarrassed.

*404 The defendant put on no evidence and moved at the close of the State’s evidence for dismissal of both charges based on insufficiency of evidence. The trial court denied the motions and the majority in the Court of Appeals affirmed the trial court.

[1] [2] Upon the defendant’s motion to dismiss, the question for the court is whether substantial evidence was introduced of each element of the offense charged and that the defendant was the perpetrator. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). The issue of substantiality is a question of law for the court. If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the perpetrator, the motion to dismiss should be allowed. State v. Cutler, 271 N.C. 379, 383, 156 S.E.2d 679, 682 (1967). This is true even though the suspicion is strong. State v. Evans, 279 N.C. 447, 183 S.E.2d 540 (1971).

...

The defendant contends there was no substantial evidence that the sexual intercourse between Brown and him was by force and against her will. He argues that the evidence was insufficient to allow the trial court to submit the issue of his guilt of second degree rape to the jury. After a review of the evidence, we find this argument to have merit.

Second degree rape involves vaginal intercourse with the victim both by force and against the victim’s will. G.S. 14–27.3. Consent by the victim is a complete defense, but consent which is induced by fear of violence is void and is no legal consent. State v. Hall, 293 N.C. 559, 563, 238 S.E.2d 473, 476 (1977).

[7] A defendant can be guilty of raping even his mistress or a “common strumpet.” Cf. State v. Long, 93 N.C. 542 (1885) (assault with intent to rape). This is so because consent to sexual intercourse freely given can be withdrawn at any time prior to penetration. State v. Way, 297 N.C. 293, 296, 254 S.E.2d 760, 761 (1979). If the particular act of intercourse for which the defendant is charged was both by force and against the victim’s will, the offense is rape without regard to the victim’s consent given to the defendant for prior acts of intercourse. Id.; R. Anderson, 1 Wharton’s Criminal Law And Procedure § 302 (1957).

Where as here the victim has engaged in a prior continuing consensual sexual relationship with the defendant, however, determining the victim’s state of mind at the time of the alleged rape obviously is made more difficult. Although inquiry in such cases still must be made into the victim’s state of mind at the time of the alleged rape, the State ordinarily will be able to show  *408 the victim’s lack of consent to the specific act charged only by evidence of statements or actions by the victim which were clearly communicated to the defendant and which expressly and unequivocally indicated the victim’s withdrawal of any prior consent and lack of consent to the particular act of intercourse.

[8] In the present case the State introduced such evidence. It is true, of course, that Brown gave no physical resistance to the defendant. Evidence of physical resistance is not necessary to prove lack of consent in a rape case in this jurisdiction. State v. Hall, 293 N.C. 559, 563, 238 S.E.2d 473, 476 (1977). Brown testified unequivocally that she did not consent to sexual intercourse with the defendant on June 15. She was equally unequivocal in testifying that she submitted to sexual intercourse with the defendant only because she was afraid of him. During their walk, she told the defendant that their relationship was at an end. When the defendant asked her if she was “ready” immediately prior to having sexual intercourse with her, she told him “no, that I wasn’t going to bed with him.” Even in the absence of physical resistance by Brown, such testimony by her provided substantial evidence that the act of sexual intercourse was against her will. See, e.g., State v. Arnold, 284 N.C. 41, 199 S.E.2d 423 (1973).

**476 [9] The State did not offer substantial evidence, however, of the element of force. As we have stated, actual physical force need not be shown in order to establish force sufficient to constitute an element of the crime of rape. Threats of serious bodily harm which reasonably induce fear thereof are sufficient. See State v. Burns, 287 N.C. 102, 214 S.E.2d 56, cert. denied, 428 U.S. 933, 96 S.Ct. 288, 46 L.Ed.2d 264 (1975). In the present case there was no substantial evidence of either actual or constructive force.

[10] The evidence in the present case tended to show that, shortly after the defendant met Brown at the school, they walked out of the parking lot with the defendant in front. He stopped and told Brown he was going to “fix” her face so that her mother could see he was not “playing.” This threat by the defendant and his act of grabbing Brown by the arm at the school, although they may have induced fear, appeared to have been unrelated to the act of sexual intercourse between Brown and the defendant. More important, the record is devoid of evidence that Brown was in any way intimidated into having sexual intercourse with the defendant *409 by that threat or any other act of the defendant on June 15. Brown said she did not pay a lot of attention to what the defendant said because she was thinking about other things. She specifically stated that her fear of the defendant was based on an experience with him prior to June 15 and that on June 15 he did not hold her down or threaten her with what would happen if she refused to submit to him. The State failed to offer substantial evidence of force used or threatened by the defendant on June 15 which related to his desire to have sexual intercourse on that date and was sufficient to overcome the will of the victim.

We note that the absence of an explicit threat is not determinative in considering whether there was sufficient force in whatever form to overcome the will of the victim. It is enough if the totality of the circumstances gives rise to a reasonable inference that the unspoken purpose of the threat was to force the victim to submit to unwanted sexual intercourse. State v. Barnette, 304 N.C. 447, 284 S.E.2d 298 (1981). The evidence introduced in the present case, however, gave rise to no such inference. Under the peculiar facts of this case, there was no substantial evidence that threats or force by the defendant on June 15 were sufficiently related to sexual conduct to cause Brown to believe that she had to submit to sexual intercourse with him or suffer harm. Although Brown’s general fear of the defendant may have been justified by his conduct on prior occasions, absent evidence that the defendant used force or threats to overcome the will of the victim to resist the sexual intercourse alleged to have been rape, such general fear was not sufficient to show that the defendant used the force required to support a conviction of rape.

In summary, we think that the State’s evidence was sufficient to show that the act of sexual intercourse in question was against Brown’s will. It was not sufficient, however, to show that the act was accomplished by actual force or by a threat to use force unless she submitted to sexual intercourse. Since the State did not introduce substantial evidence of the element of force required to sustain a conviction of rape, the trial court erred in denying the defendant’s motion to dismiss the case against the defendant for second degree rape.

For the foregoing reasons, we reverse the opinion of the Court of Appeals holding that there was no error in the defendant’s *410 trial for second degree rape and remand this action to the Court of Appeals for its further remand to the Superior Court, Durham County, for the entry of directed verdicts in favor of the defendant.

Case No. 81CRS14691—Second Degree Rape—REVERSED AND REMANDED.

109 A.3d 711

Superior Court of Pennsylvania.

COMMONWEALTH of Pennsylvania, Appellee

v.

David Joseph GONZALEZ, Appellant.

Submitted Nov. 24, 2014.

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Filed Jan. 21, 2015.

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Reargument Denied March 24, 2015.

Synopsis

Background: Defendant was convicted in the Court of Common Pleas, Franklin County, Criminal Division, No. CP–28–CR–0001103–2011, Van Horn, J., of rape, aggravated indecent assault, and sexual assault. Defendant appealed.

Opinion

OPINION BY JENKINS, J.:

David Gonzalez met K.M., a cerebral palsy patient,1 on a Christian dating website. On March 8, 2011, after dating for several months, they had sexual intercourse. K.M. claimed that Gonzalez raped her.... The jury believed K.M. and found Gonzalez guilty of rape,2 aggravated indecent assault3 and sexual assault.4 The trial court sentenced Gonzalez to an aggregate sentence of 4–15 years’ imprisonment. Gonzalez filed a motion for post-trial relief and timely post-sentence motions, all of which the trial court denied.... [W]e affirm.

The trial court recounts the evidence adduced at trial as follows:5

The above convictions arose out of an incident that occurred on March 8, 2011. The victim was twenty-five years old at the time and suffers from cerebral palsy. Her cerebral palsy causes her to have ‘stiffness and tightening of the muscles’ in her legs and she needs crutches to walk. She testified that if she were lying on the floor, she could pull herself up if she had something to pull herself up on. When asked whether she could bend her knees normally, she testified ‘[n]ot on my own. If I had to bend my knees, I would either need to use my hands or have someone to help me.’ When asked if she could easily spread her legs apart, she responded, ‘[n]o,’ and said ‘[t]hey have to be pushed apart.’ The victim also testified that ‘I can’t *717 spread my legs far enough to get [a tampon] in,’ and has to use pads during her period.6

The victim and [Gonzalez] met each other on a Christian dating website in August 2010. They met in person in September of that year, but [Gonzalez] soon left the area to pursue a position as a youth minister in New York. They reestablished a relationship when he returned in December 2010, and began seeing each other. On March 7, 2011, [Gonzalez] picked up the victim and took her to the mall. They discussed their religious beliefs, and the victim testified that ‘I had told [Gonzalez] that I was a virgin and didn’t plan on having sex before I was married.’ She further testified that he responded by saying ‘something along the lines ... of praise the Lord.’ She also said that he told her he was not a virgin. That evening, they kissed and hugged. The victim also testified that [Gonzalez] asked her to be his girlfriend, and she agreed7.

On March 8, 2011, [Gonzalez] picked up the victim from her physical therapy appointment around 2:30 p.m. They stopped to get food and went to [Gonzalez]’s apartment to watch a movie. This was the first time the victim had been to [Gonzalez]’s apartment. They sat down on the couch and began watching the movie. The victim testified that she started kissing [Gonzalez] and they both began touching and rubbing one another’s genitals over their clothes. This lasted for about half an hour. Eventually, the victim noticed that [Gonzalez] was erect. Next, the victim testified that [Gonzalez] asked her if she wanted to go to the bedroom, to which she agreed. The victim ‘assumed that we would continue doing what we were doing in the living room in the bedroom ... [b]ecause ... [Gonzalez] knew that I didn’t want to have sex before I was married.’ Before they moved, the victim testified that [Gonzalez] took her phone out of a pouch connected to her jeans and placed it on a TV tray in the living room. The victim then got her crutches, got off the couch, and walked to [Gonzalez]’s bedroom. Once in the bedroom, she noticed a bare mattress against the wall with no furniture surrounding it. [Gonzalez] then either helped her sit on the mattress or she sat down herself. The victim testified that [Gonzalez] ‘took my crutches [and] put them out of reach. I didn’t see exactly where he put them. But I know it was out of reach.’ The victim lay down by herself. When asked ‘is there any way you could have gotten up from that point?’ She responded ‘no.’8

The victim testified that [Gonzalez] then removed her jeans and underwear, and lay on top of her. The victim did not say anything while [Gonzalez] took off her pants and underwear, but when he lay on top of her, she said ‘no, don’t.’ When he lay on top of her, her legs were flat, straight, and unopened because ‘I can’t open my legs by myself.’9

Next, the victim testified that [Gonzalez] ... forced her legs apart ‘with his hands and put them on his shoulders. And he had his hands cuffed around my ankles.’ She testified that ‘[h]e put my ankles around his shoulders.’ ‘He bent [her knees] because they were up on his shoulders.’ She then felt his penis inside her, and *718 she ‘kept saying ow.’ [Gonzalez] told the victim she ‘had to be quiet.’ The victim was asked if she tried at all to kick off [Gonzalez] during the penetration. She responded, ‘I couldn’t move my legs. My legs don’t move like that.’ When asked if she tried to push him off, she said, ‘[n]o ... because he’s too big. And I was scared.’10

At some point, [Gonzalez] suddenly stopped, and the encounter ended. There was blood on the mattress and blood on the victim’s underwear after she put them back on. The victim testified that after she got dressed, [Gonzalez] said to her, ‘I’m sorry. I have a weakness.’11

During cross-examination, defense counsel inquired into the victim’s mobility. The victim attended Lancaster Bible College and when asked if she could walk around the campus independently, she responded, ‘with crutches, yes.’ The victim later testified on redirect that she has ‘people to help me carry’ books and things, and she needs assistance to open doors.

...

Furthermore, when asked if she had any bruises from the incident the victim responded: ‘No, I don’t think I did.’ The victim also testified that [Gonzalez] did not hit, kick, grab, push, gag, or punch her or use his fists or a weapon. Defense counsel asked why the victim and [Gonzalez] moved to the bedroom when they were already making out in the living room. The victim responded, ‘there was no purpose. I didn’t think I was in any danger with David. I saw him—I thought he was an honest person.’ Defense counsel asked, ‘So for the record, it never crossed your mind that at that point, you were moving to the bedroom for sex. It never crossed your mind?’ The victim responded, ‘No, ma’am.’12

After concluding sexual intercourse, K.M. and Gonzalez returned to the living room to continue watching the movie. Gonzalez indicated that his cousin was coming over to visit, and K.M. asked him to take her home. Gonzalez assisted her, and ... Gonzalez went to get his car. Although the police station was across the street, K.M. did not make any telephone calls or attempt to go to the police station to report the incident. Gonzalez helped K.M. into the car, and they stopped at a gas station en route to her house. She did not use her cell phone at the gas station or report the incident to anyone. Upon arriving at her home, Gonzalez helped her get out of the car.15

After K.M. entered her house, her sister asked her whether something was wrong.... K.M. initially denied that anything was wrong but then stated: “I think he raped me.”16

...

[1] [2] [3] Gonzalez’ first argument on appeal is a challenge to the sufficiency of the evidence. We first consider the evidence of rape. The Crimes Code defines rape in pertinent part as follows: “A person commits a felony of the first degree when the person engages in sexual intercourse with a complainant ... by forcible compulsion.” 18 Pa.C.S. § 3121(a)(1). The Crimes Code defines “forcible compulsion” in relevant part as “compulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied.” 18 Pa.C.S. § 3101. This Court has observed “forcible compulsion” as the exercise of sheer physical force or violence and has also come to mean an act of using superior force, physical, moral, psychological or intellectual to compel a person to do a thing against that person’s volition and/or will. *721 Commonwealth v. Ables, 404 Pa.Super. 169, 590 A.2d 334, 337 (1991). A determination of forcible compulsion rests on the totality of the circumstances, including but not limited to this list of factors:

the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress.

Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217, 1226 (1986) (emphasis added). It is not mandatory to show that the victim resisted the assault in order to prove forcible compulsion. Id. The victim’s uncorroborated testimony is sufficient to support a rape conviction. Commonwealth v. Wall, 953 A.2d 581, 584 (Pa.Super.2008).

[4] The distinction between forcible compulsion and lack of consent is important to remember. With regard to consent, the Crimes Code states: “The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.” 18 Pa.C.S. § 311(a). “Forcible compulsion” means “something more” than mere lack of consent. Commonwealth v. Smolko, 446 Pa.Super. 156, 666 A.2d 672, 676 (1995). “Where there is a lack of consent, but no showing of either physical force, a threat of physical force, or psychological coercion, the ‘forcible compulsion’ requirement ... is not met.” Id.

[5] The trial court comprehensively analyzed the sufficiency of the evidence of rape ... denying Gonzalez’s motion for post-trial relief. The court aptly described this case as “unique”, because “it is not a case of moral, psychological, or intellectual forcible compulsion that has often been found in circumstances involving a young, vulnerable victim and a perpetrator who is in a position of authority and trust.” Opinion Denying Post–Trial Relief (“Post–Trial Opinion”), 11/5/13, p. 13. The court was careful to note that this case involved “two competent adults who formed a dating relationship” who had engaged in “some consensual intimacy (i.e. kissing, hugging)”, and the incident “occurred during a planned date.” Id., p. 14. Moreover, “the victim initiated kissing and touching with [Gonzalez] on the couch in his living room, willingly walked herself to the bedroom upon [Gonzalez’s] request, and did not protest when he removed her pants and underwear.” Id. Thus, the court found nothing about the respective ages or mental conditions of Gonzalez and K.M. that demonstrates forcible compulsion. Id. Gonzalez did not occupy a position of “authority or custodial control” over K.M., and she was not under duress. Id.

Despite these factors, the trial court reasoned that other details showed Gonzalez’s “domination” over K.M. The court observed that K.M.’s cerebral palsy “was a physical condition that caused her to have stiff legs with limited movement and walk with crutches.” Id., p. 16. During the encounter, “she was lying on her back, away from her crutches and her cell phone,” all of which Gonzalez had placed beyond her reach, and she “was away from any objects she could use to help lift herself up ...” Id. Gonzalez “was initially lying on top of her and then forced her legs apart and cuffed her ankles on his shoulders. He also told [K.M.] to be quiet when she repeatedly said ‘ow’ during the penetration.” Id. Although K.M. did not call out for help or try to push Gonzalez away with her arms, “resistance is not *722 necessary to prove forcible compulsion”—and in any event, resistance would have accomplished nothing, since Gonzalez was too big to push off her body, and she was unable to kick due to her cerebral palsy. Id., pp. 16–17.

The trial court also concluded that there was evidence of “physical force.” By itself, K.M.’s statement, “no don’t”, is not sufficient evidence of force, because this statement only indicates lack of consent, and “forcible compulsion is something more than lack of consent.” Id. at 17 (citing Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161, 1165 (1994)). Here, however, there was “something more,” specifically, lack of consent and physical force:

[Gonzalez] forc[ed] the victim’s legs apart, ben[t] her knees, mov[ed] her ankles up to his shoulders and cuff[ed] her ankles while he penetrated her. The victim was unable to open her legs or bend her knees by herself. [Gonzalez] repositioned her legs when he penetrated her with his finger, and then again placed her legs back on his shoulders when he penetrated her with his penis a second time. Again, the victim was unable to move her legs to resist or prevent [Gonzalez’s] actions.

Id., p. 17. Although this force “was not extreme, it was certainly unique to the factual circumstances of the case and sufficient to establish forcible compulsion by [Gonzalez] on this particular victim” beyond a reasonable doubt. Id., pp. 17–18.

[6] We agree with the trial court’s astute analysis by construing the evidence in the light most favorable to the Commonwealth. K.M.’s testimony establishes that she told Gonzalez that she did not want premarital intercourse. Gonzalez pretended to agree with K.M., but one day later, he maneuvered her into a position in which she was powerless to resist his advances. He took her to his apartment, where she had never been before. He placed her cell phone out of reach in a living room tray, and when they adjourned to his bedroom and lay down on his bed, he placed her crutches out of reach. Without her phone or crutches, she could not escape from the bed or contact an outside agency for help. He then disrobed her and lay on top of her. She uttered “no, don’t,” but instead of stopping, he forced her legs apart and cuffed them on his shoulders—movements she was incapable of performing herself due to her cerebral palsy. He then penetrated her with his penis and told her to be quiet when she repeatedly called out “ow”. K.M.’s lack of consent (“no, don’t”), combined with Gonzalez’s use of domination and physical force, provide sufficient evidence of forcible compulsion to justify his conviction for rape.

...

In his final argument on appeal, Gonzalez insists that his sentence is unreasonable and excessive.

[38] [39] This is a challenge to the discretionary aspects of Gonzalez’s sentence. Our standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa.Super.2007).

[42] Here, Gonzalez timely filed his notice of appeal ... after the trial court denied his post-sentence motions. Pa.R.Crim.P. 720(A)(2). He preserved the challenge to his sentence in his post-sentence motions and included a Pa.R.A.P. 2119(f) statement in his brief.... The substantial question in Gonzalez’s brief is an “excessive sentence claim[ ] in conjunction with an assertion that the court did not consider mitigating factors.” Commonwealth v. Dodge, 77 A.3d 1263, 1272 (Pa.Super.2013) (en banc ).38

*732 [43] We determine, however, that Gonzalez’s excessiveness claim is devoid of merit. We find persuasive the trial court’s thorough analysis of this question:

[Gonzalez] argues that the Court failed to properly weigh[ ] certain mitigating circumstances, including his law abiding past, his education, his employment history, his community and familial support, and the fact that this was his first conviction. The Court disagrees as this argument is contradicted by the record. First, a pre-sentence investigation report was prepared by the Probation Department, and our Supreme Court has stated that, ‘[w]here pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding [Gonzalez]’s character and weighed those considerations along with mitigating statutory factors.’ Commonwealth v. Devers [519 Pa. 88], 546 A.2d 12, 18 (Pa.1988). Not only did the Court thoroughly review [Gonzalez]’s pre-sentence investigation report, but also considered [Gonzalez]’s twenty-four letters of support, heard and considered the individuals who came forth to support [Gonzalez] at sentencing, and heard what his attorney stated on his behalf. See N.T. 12/18/2013 p. 41. Acknowledging this information, the Court stated, ‘[t]he witnesses that have testified in your support and the letters provided for those who are absent today all attest to your good moral character, your commitment to the community in general, and to your church.’ Id. The Court stated further:

Notwithstanding the uncontested good deeds that are attested to in these documents relative to your community, the issue alone is not whether you are viewed as an upstanding contributing member of society. The focus today must be on what you did do to this victim on March 8th of 2011 and how should you be held accountable for your behavior on that day.

Id. at 41–42. Despite [Gonzalez]’s contentions otherwise, the Court did in fact consider and weigh mitigating factors, yet found them of lesser value when considering the gravity of [Gonzalez]’s crimes against the victim. Additionally, at the time of sentencing, [Gonzalez] still refused to ‘acknowledge wrongdoing or the pain of the victim.’ Id. at 42. Such lack of remorse and accountability weighed heavily in the Court’s sentencing decisions and weighed against the mitigating factors [Gonzalez] claims the Court failed to consider. The Court reasoned that [Gonzalez]’s ‘choice to not express remorse for the victim’s consequences of that day limits the value of the character witnesses letters and testimony provided today such that I can consider them in shaping the sentence. But they cannot be viewed as an excuse for your behavior.’ Id.

Judgment of sentence affirmed.

109 A.3d 711, 2015 PA Super 13

Follow-up discussion: Commonwealth v. Gonzalez

1. In 2005, the Supreme Court of Kansas ruled a statute unconstitutional for violating the equal protection provisions of the United States and Kansas Constitutions. The statute allowed a less harsh punishment for unlawful voluntary sexual conduct between members of the opposite sex compared to the harsher punishment for the same conduct between members of the same sex. In the ruling, the Court struck the words "and are members of the opposite sex" from the statute, taking a step toward equality in sentencing for sexual assault. See State v. Limon, 280 Kan. 275, 276, 122 P.3d 22, 24 (2005).
2. Barriers to Reporting Sexual Violence in LGBTQ Communities
3. Sir Matthew Hale, a 17th-century British Chief Justice, theorized that wives give “irrevocable consent” to their husband and in this “mutual matrimonial consent and contract, the wife hath given up herself in this kind unto her husband which she cannot retract.”  This ideology was adopted into American culture and served as the foundation for the marital rape exemption, which precluded a state from charging a husband with the crime of rape of his wife.

As of 2019, according to data from the National Coalition Against Domestic Violence (NCADV), between 10 and 14% of married women will experience marital rape. Yet to this day, many states still uphold the marital rape exemption. For example, in 17 states “a spouse can't be convicted of raping a partner who was unconscious, drugged, or otherwise incapacitated.”

4.     The origins of the marital rape exemption are rooted in the outdated concept that wives were the property of their husbands. Despite this antiquated notion, the exemption has had a long life, “thriving through the ‘sexual revolution’ of the 1960s and 1970s without change.” In fact, the “1980 Model Penal Code extended this exemption to all persons living together as ‘man and wife.’”

The arguments for keeping the marital rape exemption included: (a) keeping the marital relationship private, (b) protecting husbands from vindictive wives, (c) it is nearly impossible to prove, and (d) a charge of rape would discourage reconciliation between husband and wife. 

In the 1980s, these arguments were finally addressed during one of the landmark cases of marital rape. In People v. Liberta , a husband, who was living apart from his wife under court order, raped and sodomized his wife in front of their 2-year old son. He was convicted at trial, after the court ruled that the court order had rendered him "not married." The husband appealed the ruling, claiming that the court order did not declare him not married," and therefore he should retain the protection of the [marital rape] exemption. In upholding his conviction, New York's highest court struck down the marital rape exemption as an unconstitutional denial of equal protection for married women.

In rendering this judgment, the NY Court of Appeals made it clear that: (a) marital privacy is meant to provide privacy of acts that both husband and wife find agreeable; it is not meant to shield abuse; (b) labeling all wives potentially vindictive is a poor stereotype not supported by any evidence; (c) many crimes without witnesses are hard to prove, yet this is no reason for making a crime "unprosecutable;" and (d) making rape in marriage a crime does not make marriage more difficult; it is rather a rape which would make a marriage more difficult.”  See People v. Liberta, 64 N.Y.2d 152, 474 N.E.2d 567 (1984)

Sexual Assault in Marriage: Prevalence, Consequences, and Treatment of Wife Rape

This article covers the piece of legislation signed by Gov. Jerry Brown in 2016 in response to the months of public outrage over the six-month sentence for sexual assault given to Brock Turner. The bill essentially expanded the legal definition of rape and imposed new mandatory minimum sentences on some sexual assault offenders. Our group thought it would be appropriate at some point to discuss the criminal process that further complicates rape/sexual assault cases such as 1) statute of limitations for specified sex crimes, 2) varying legal definitions of rape, and 3) sentencing for sex assault crimes in context of Brock Turner case.