Offenses

Sexual assault offenses are listed below along with their potential penalties.

First Degree Sexual Assault (Class B felony)

• sexual intercourse or sexual contact without consent which causes pregnancy or great bodily harm, or
• sexual intercourse or sexual contact without consent accomplished by use or threat of use of a dangerous weapon, or
• sexual intercourse or sexual contact without consent while aided or abetted by one or more persons through the use or threat of force or violence.

* Penalty for a Class B felony includes imprisonment not to exceed 40 years under Wisconsin Statutes § 939.50(3)(b)).

Second Degree Sexual Assault (Class BC felony)

• sexual intercourse or sexual contact without consent through the use or threat of force or violence, or
• sexual intercourse or sexual contact without consent which causes injury, illness, disease, or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care, or
• sexual intercourse or sexual contact with a person known by the perpetrator to be unconscious or mentally ill or mentally deficient, or
• sexual intercourse or sexual contact without consent while aided or abetted by one or more person, or
• sexual intercourse or sexual contact with a person who is a patient or resident of an inpatient facility or a state treatment facility by a perpetrator who is an employee of that facility.

• Whoever has sexual contact involving ejaculation or sexual intercourse with a person without the consent of that person.

Fourth Degree Sexual Assault (Class A misdemeanor)

• Sexual contact with a person without the consent of that person or sexual intercourse with a person 16-18 years old.

Penalty for a class A misdemeanor includes a fine up to $10,000 and imprisonment not to exceed 9 months in the county jail under Wisconsin Statutes § 939.50(3)(bc)).

Definitions

Wisconsin statutes go on to define some of the terms that are used as necessary elements of sexual assault crimes:

• Consent: "Consent" means words or overt actions by a person indicating a freely given agreement to have sexual intercourse or sexual contact. Mental illness or mental deficiencies and people who are unconscious or physically unable to communicate are presumed incapable of consenting under the law. The presumption may be challenged as part of the criminal defense.
• Sexual Intercourse: 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 of a person's genital or anal opening by the defendant or upon the defendant's instruction. The emission of semen is not required under statute s.940.22(5)(c). This includes even slight intrusions.
• Sexual Contact: The law defines sexual contact as any intentional touching of the intimate parts of a person, either directly or through clothing, by any body part or by any object, if that intentional touching is for the purpose of sexually degrading or humiliating the victim, or for the sexual arousal or gratification of the assailant, or if the intentional touching contains the elements of actual or attempted battery.
• Evidence Of Victim's Past Sexual Conduct: Under Wisconsin State Statute § 972.11 the use of evidence of the victim's past sexual conduct in court except in very limited instances is prohibited. Past sexual conduct may include any behavior relating to the sexual activities of the victim including prior sexual intercourse and sexual contact, the use of contraceptives, lifestyle choices and/or living arrangements. There are three major exceptions to this rule. Evidence of a victim's past sexual conduct may be used in court when:
  • the judge uses his/her discretion and allows evidence of the victim's past conduct with the defendant
  • the judge uses his/her discretion to allow evidence which could show the source of semen, the origination of a pregnancy, or origination of disease in order to determine the degree of sexual assault.
  • the judge may also allow evidence of prior untruthful allegations of sexual assault made by the victim.

  An experienced criminal defense attorney will know that questions of this nature may only be raised at trial if the defense attorney seeks permission of the court as part of a pretrial motion.

• Spouses: Marriage does not preclude the state from prosecuting a defendant for sexual assault. A person may just as easily be prosecuted for sexually assaulting his/her spouse.

Defenses

Defending an individual accused with child molestation, sex assault, or other related sex crimes is a very specialized area of criminal defense. Unfortunately, the very accusation itself is often treated as conclusive proof of the supposed misconduct. Law enforcement officers, as well as prosecutors, try to bend rules in prosecuting these types of cases. Consequently, not all criminal defense attorneys are equipped to handle the complex issues that sex cases present. Many criminal defense attorneys either assume that their client is guilty, or believe that the charges are unbeatable, prematurely concluding that no viable defense exists.

If retained at an early stage in the investigation, we are sometimes able to avoid charges altogether. At a minimum we are often able to avoid the trauma and embarrassment of our client being arrested at home or at the workplace by contacting law enforcement and the court in order to make the necessary arrangements.