948.02 Sexual assault of a child. (1) FIRST DEGREE
SEXUAL ASSAULT. Whoever has sexual contact or sexual intercourse
with a person who has not attained the age of 13 years is
guilty of one of the following:
(a) If the sexual contact or sexual intercourse resulted in great
bodily harm to the person, a Class A felony.
(b) If the sexual contact or sexual intercourse did not result in
great bodily harm to the person, a Class B felony.
NOTE: Sub. (1) is affected by 2005 Wis. Acts 430 and 437. The 2 treatments
are mutually inconsistent. Sub. (1) is shown as affected by the last enacted act,
2005 Wis. Act 437. As affected by 2005 Wis. Act 430, it reads:
(1)FIRST DEGREE SEXUAL ASSAULT (a) In this subsection, sexual intercourse
means vulvar penetration as well as cunnilingus, fellatio, or anal intercourse
between persons or any intrusion of any inanimate object into the genital or anal
opening either by the defendant or upon the defendants instruction. The emission
of semen is not required.
(b) Whoever has sexual intercourse with a person who has not attained the
age of 12 years is guilty of a Class B felony.
(c) Whoever has sexual intercourse with a person who has not attained the
age of 16 years by use or threat of force or violence is guilty of a Class B felony.
(d) Whoever has sexual contact with a person who has not attained the age
of 16 years by use or threat of force or violence is guilty of a Class B felony if the
actor is at least 18 years of age when the sexual contact occurs.
(e) Whoever has sexual contact with a person who has not attained the age
of 13 years is guilty of a Class B felony.
(2) SECOND DEGREE SEXUAL ASSAULT. Whoever has sexual
contact or sexual intercourse with a person who has not attained
the age of 16 years is guilty of a Class C felony.
(3) FAILURE TO ACT. A person responsible for the welfare of
a child who has not attained the age of 16 years is guilty of a Class
F felony if that person has knowledge that another person intends
to have, is having or has had sexual intercourse or sexual contact
with the child, is physically and emotionally capable of taking
action which will prevent the intercourse or contact from taking
place or being repeated, fails to take that action and the failure to
act exposes the child to an unreasonable risk that intercourse or
contact may occur between the child and the other person or facilitates
the intercourse or contact that does occur between the child
and the other person.
(4) 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.
(5) DEATH OF VICTIM. This section applies whether a victim is
dead or alive at the time of the sexual contact or sexual intercourse.
History: 1987 a. 332; 1989 a. 31; 1995 a. 14, 69; 2001 a. 109; 2005 a. 430, 437.
Relevant evidence in child sexual assault cases is discussed. In Interest of Michael
R.B. 175 Wis. 2d 713, 499 N.W.2d 641 (1993).
Limits relating to expert testimony regarding child sex abuse victims is discussed.
State v. Hernandez, 192 Wis. 2d 251, 531 N.W.2d 348 (Ct. App. 1995).
The criminalization, under sub. (2), of consensual sexual relations with a child
does not violate the defendants constitutionally protected privacy rights. State v.
Fisher, 211 Wis. 2d 665, 565 N.W.2d 565 (Ct. App. 1997), 961764.
Second degree sexual assault under sub. (2) is a lesser included offense of first
degree sexual assault under sub. (1). State v. Moua, 215 Wis. 2d 510, 573 N.W.2d
210 (Ct. App. 1997).
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, 982196.
Expert evidence of sexual immaturity is relevant to a preadolescents affirmative
defense that he or she is not capable of having sexual contact with the purpose of
becoming sexually aroused or gratified. State v. Stephen T. 2002 WI App 3, 250 Wis.
2d 26, 643 N.W.2d 151, 003045.
That the intended victim was actually an adult was not a bar to bringing the charge
of attempted 2nd degree sexual assault of a child. The fictitiousness of the victim is
an extraneous factor beyond the defendants control within the meaning of the
attempt statute. State v. Grimm, 2002 WI App 242, 258 Wis. 2d 166, 653 N.W.2d 284,
010138.
Section 939.22 (19) includes female and male breasts as each is the breast of a
human being. The touching of a boys breast constitutes sexual contact under sub.
(2). State v. Forster, 2003 WI App 29, 260 Wis. 2d 149, 659 N.W.2d 144, 020602.
Sub. (2), in conjunction with ss. 939.23 and 939.43 (2), precludes a defense predicated
on a childs intentional age misrepresentation. The statutes do not violate an
accuseds rights under the 14th amendment to the U. S. Constitution. State v.
Jadowski 2004 WI 68, 272 Wis. 2d 418, 680 N.W.2d 418, 031493.
The consent of the child in a sub. (2) violation is not relevant. Yet if the defendant
asserts that she did not consent to the intercourse and that she was raped by the child,
the issue of her consent becomes paramount. If the defendant was raped, the act of
having sexual intercourse with a child does not constitute a crime. State v. Lackershire,
2007 WI 74, ___ Wis. 2d ___, 734 N.W.2d 23, 051189.
The constitutionality of this statute is upheld. Sweeney v. Smith, 9 F. Supp. 2d 1026
(1998).
Statutory Rape in Wisconsin: History, Rationale, and the Need for Reform. Olszewski.
89 MLR 693 (2005).