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Sexual Assault 
 


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Wisconsin Sexual Assault
rape, statutory rape, cunnilingus, fellatio, sodomy, anal intercourse, sexual assault


Overview

Wisconsin criminal statutes 940.225 categorize sexual assaults include four "degrees" of offenses which may occur under a variety of circumstances. The Degrees are based upon the amount of force used by the assailant and the amount of harm done to the victim, rather than on the resistance offered by the victim. First, second and third degree sexual assaults are felonies whereas a fourth degree sexual assault is a misdemeanor.

Sexual Assault is not limited to rape which requires sexual intercourse or penetration but also includes sexual contact. Even consensual sexual contact may result in criminal charges if the victim is a minor. It can also occur between persons of the same sex.

Under Wisconsin law the penalties for sexual assault are severe and include incarceration, significant fines, as well as potential psychiatric treatment and the payment of restitution to victim.

Statistics

In July 1997, the Wisconsin Office of Justice Assistance Statistical Analysis Center generated the following facts:

  • In 1996, an estimated 6020 sexual assaults were reported to law enforcement agencies, representing a 1.3 percent decrease from the 1995 estimated total of 6101.
  • The most common type of sexual assault was forcible fondling, which accounted for 50 percent of all reported cases.
  • Of all sexual assaults, 31 percent were the most serious types of offenses (forcible rape, forcible sodomy, or assault with an object).
  • Ninety-two percent of all sexual assaults were perpetrated by someone known to the victim, while eight percent were committed by strangers.
  • An offender was arrested in 58 percent of all cases.
  • Ninety percent of all sexual assault offenders apprehended were referred to criminal or juvenile court.
  • Sexual assaults occurred most frequently in the Summer months.
  • Sixty-two percent of assaults took place in either the victim's or offender's home.
  • Ninety-eight percent of assaults were committed by single offenders.

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.

* Penalty for Class BC felony includes fines up to $10,000 and imprisonment not to exceed 20 years under Wisconsin Statutes 939.50(3)(bc)).

Third Degree Sexual Assault (Class D felony)

  • Whoever has sexual contact involving ejaculation or sexual intercourse with a person without the consent of that person.
* Penalty for Class D felony includes a fine up to $10,000 and imprisonment not to exceed 5 years under Wisconsin Statutes 939,50(3)(d)).

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

Do Not Make Statements. Obviously, the best defense begins before a defendant is ever charged. Often, in a misguided attempt to help law enforcement, defendants make statements that are twisted and turned into prosecutorial evidence. It is important to remember not to allow yourself be interviewed government agencies without an attorney present.
Any interview will be sent to the police and the district attorney's office and can be used against you. An obvious corollary is do not let yourself be interviewed again by the police without your attorney present.

DNA Evidence. Sexual assault by its nature is a contact crime which also often involves force. In such cases the perpetrator will often leave behind telltale DNA evidence on the victim or at the crime scene. Using this evidence or challenging law enforcement's sloppy investigation and acquisition of potentially exculpatory information is the best way for a defense lawyer to prove actual innocence.

Examine Prosecution Expert's Background. An important part of every case of false allegations is the ability to counter the reports and testimony of caseworkers and "experts" who determine that abuse has occurred. To effectively counter a prosecution expert, the defense attorney must be well educated on the expert's education, work history, published works and testimony in prior cases.

Hire a Defense Expert. To successfully effectively defend against allegations of sexual assault a defense attorney must hire an expert to refute the victim's allegations. Additionally, often it is useful to retain a mental health expert to assist the defense attorney in preparing the trial and cross examination of alleged victims.

Use Professional Research. Under Wisconsin law an expert may testify at trial that an accuser acts consistently with research studies setting forth traits of a sexual assault victim. By the same token, an expert may also testify that an accuser acts inconsistently with research studies setting forth traits of a sexual assault victim. This is often the backbone of the prosecutions case and may be an important part of a well presented.

Subpoena Records. Existing psychological and/or medical records may be instrumental in criminal defense. The records of the accuser may demonstrate a lack of credibility in the alleged victim's story.

Use a Polygraph. When it is advantageous to the defense against a sexual assault, defense attorneys should obtain a credible polygraph examination from a respected professional.

Defense Professionals

Attorney Maury D. Beaulier is a leading defender against sexual assault allegations throughout Wisconsin and Minnesota. We have developed a unique understanding of the dynamics of these very serious cases. Our competent, aggressive and thorough representation have made Maury D. Beaulier a leading criminal defense attorney regarding sex related criminal charges.

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.


For legal representation call 1-612-249-8005 or ASK-A-LAWYER Online

 

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