This is a preview of how your content will look on export. To export the complete content in DOC format, click the blue export button in the upper right corner of this page.
V.A. The Offense

To a greater degree than any of the other crimes we study in this class, the very definition of rape has been a subject of dispute and reform in recent years. Perhaps that is because the basic result element that rape law criminalizes—sexual intercourse—is not, unlike death or battery, itself considered bad. When someone intentionally kills another, there is usually little question (except in cases of self-defense) that the result is bad and that a crime may have occurred. Unlike most intentional killing, intentional sex is not inherently wrong. Indeed, in some situations, much of the evidence of rape may rest in the perceptions and interpretations of the involved parties.

The traditional elements of rape law are: 1) sexual intercourse; 2) with force; 3) and lack of consent. Because the sexual intercourse element of rape can be difficult to distinguish from lawful, intentional behavior, rape law has struggled to create a regime that balances the punishment of wrongdoers with the protection of the rights of the accused. Originally, rape law established strict rules governing punishable behavior that were under-inclusive and strongly protected accused men: for example, a claim of rape had to include the use of physical force by the accused and physical resistance by the victim. Additionally, there was a spousal exception to rape, so that husbands could not be criminally liable for rape of their wives.

As the cases in this section demonstrate, however, rape law reform in the past several decades has dramatically affected these requirements. Namely, feminist legal reformers have challenged and in many jurisdictions weakened or eliminated the force requirement. That has shifted more legal focus onto the question whether there was consent. Consider what problems consent itself may have as a central element of rape law.

As you read the cases and essays in this section, consider how different formulations of rape law balance several very serious considerations of our criminal system: punishing wrongdoers; differentiating between levels of blameworthiness; and protecting the rights of defendants. What evidentiary or normative roles did the traditional rape requirements play? What are the risks of limiting or removing them? How should our system balance the risks of over-inclusivity and under-inclusivity? What social and intimate relationships between men and women do the various possible rape rules promote and change? And as always, how do these questions implicate the justifications of punishment such as retribution and deterrence?

  • 1 V.A.i. Statutes

    • 1.1 CA Penal Code, Title 9 sec. 261 (1950)

      1
      Title IX.
      2
      Crimes Against the Person, Public Decency and Morals
      3
      §261. Rape—Acts Constituting.
      4

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

      5

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

      2. Where she is incapable, through lunacy or other unsoundness of mind, whether

      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.

      6

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

      7

      Assault with intent to rape, see ante §220.

      8

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

      9

      New—W.S.C.L. Crimes §§44, 67.

    • 1.2 CA Penal Code, Title 9 secs. 261, 261.5, 261.6, 262 (2011)

      1
      CA Penal Code §261
      2

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

      3

      (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.

      4

      (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.

      5

      (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.

      6

      (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.

      7

      (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.

      8

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

      9
      CA Penal Code § 261.5
      10

      (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.

      11

      (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.

      12

      (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.

      13

      (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.

      14

      (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:

      15

      (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).

      16

      (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.

      17

      (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.

      18
      CA Penal Code § 261.6
      19

      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.

      20

      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.

      21

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

      22
      CA Penal Code § 261.7
      23

      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.

      24
      CA Penal Code § 261.9
      25

      (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).

      26

      (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.

      27
      CA Penal Code § 262
      28

      (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:

      29

      (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.

      30

      (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.

      31

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

      32

      (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:

      33

      (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.

      34

      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.

      35
      CA Penal Code § 263
      36

      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.

      37
      CA Penal Code § 264
      38

      (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.

      39

      (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.

      40

      (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.

      41

      (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.

      42

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

      43
      CA Penal Code § 264.1
      44

      (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.

      45

      (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.

      46

      (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.

      47

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

      48
      CA Penal Code § 264.2
      49

      (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.

      50

      (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.

      51

      (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.

      52

      (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.

      53

      (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.

      54
      CA Penal Code § 265
      55

      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.

      56
      CA Penal Code § 266
      57

      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.

      58
      CA Penal Code § 266a
      59

      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).

      60
      CA Penal Code § 266b
      61

      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.

      62
      CA Penal Code § 266c
      63

      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.

      64

      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.

      65
      CA Penal Code § 266d
      66

      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.

      67
      CA Penal Code § 266e
      68

      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.

      69
      CA Penal Code § 266f
      70

      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.

      71
      CA Penal Code § 266g
      72

      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.

      73
      CA Penal Code § 266h
      74

      (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.

      75

      (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:

      76

      (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.

      77

      (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.

      78
      CA Penal Code § 266i
      79

      (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:

      80

      (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.

      81

      (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:

      82

      (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.

      83
      CA Penal Code § 266j
      84

      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).

      85
      CA Penal Code § 266k
      86

      (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.

      87

      (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).

      88

      (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.

      89

      (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.

      90
      CA Penal Code § 267
      91

      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).

      92
      CA Penal Code § 269
      93

      (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:

      94

      (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.

      95

      (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.

      96

      (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.

    • 1.3 NY Penal L. secs. 130.00, 130.05 130.20, 130.25, 130.30, 130.35 (2011)

      1
      NY Penal Law § 130.00 Sex offenses; definitions of terms.
      2

      The following definitions are applicable to this article:

      3

      1. "Sexual intercourse" has its ordinary meaning and occurs upon any penetration, however slight.

      2. (a) "Oral sexual conduct" means conduct between persons consisting of contact between the mouth and the penis, the mouth and the anus, or the mouth and the vulva or vagina.

      (b) "Anal sexual conduct" means conduct between persons consisting of contact between the penis and anus.

      3. "Sexual contact" means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed.

      4. For the purposes of this article "married" means the existence of the relationship between the actor and the victim as spouses which is recognized by law at the time the actor commits an offense proscribed by this article against the victim.

      5. "Mentally disabled" means that a person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct.

      6. "Mentally incapacitated" means that a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.

      7. "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

      8. "Forcible compulsion" means to compel by either:

      a. use of physical force; or

      b. a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnapped.

      9. "Foreign object" means any instrument or article which, when inserted in the vagina, urethra, penis, rectum or anus, is capable of causing physical injury.

      10. "Sexual conduct" means sexual intercourse, oral sexual conduct, anal sexual conduct, aggravated sexual contact, or sexual contact.

      11. "Aggravated sexual contact" means inserting, other than for a valid medical purpose, a foreign object in the vagina, urethra, penis, rectum or anus of a child, thereby causing physical injury to such child.

      12. "Health care provider" means any person who is, or is required to be, licensed or registered or holds himself or herself out to be licensed or registered, or provides services as if he or she were licensed or registered in the profession of medicine, chiropractic, dentistry or podiatry under any of the following: article one hundred thirty-one, one hundred thirty-two, one hundred thirty-three, or one hundred forty-one of the education law.

      13. "Mental health care provider" shall mean a licensed physician, licensed psychologist, registered professional nurse, licensed clinical social worker or a licensed master social worker under the supervision of a physician, psychologist or licensed clinical social worker.

      4
      NY Penal Law § 130.05 Sex offenses; lack of consent.
      5

       

      6

      1. Whether or not specifically stated, it is an element of every offense defined in this article that the sexual act was committed without consent of the victim.

      7

      2. Lack of consent results from:

      8

      (a) Forcible compulsion; or

      (b) Incapacity to consent; or

      (c) Where the offense charged is sexual abuse or forcible touching, any circumstances, in addition to forcible compulsion or incapacity to consent, in which the victim does not expressly or impliedly acquiesce in the actor's conduct; or

      (d) Where the offense charged is rape in the third degree as defined in subdivision three of section 130.25, or criminal sexual act in the third degree as defined in subdivision three of section 130.40, in addition to forcible compulsion, circumstances under which, at the time of the act of intercourse, oral sexual conduct or anal sexual conduct, the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor's situation would have understood such person's words and acts as an expression of lack of consent to such act under all the circumstances.

      9

      3. A person is deemed incapable of consent when he or she is:

      10

      (a) less than seventeen years old; or

      (b) mentally disabled; or

      (c) mentally incapacitated; or

      (d) physically helpless; or

      (e) committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital, as such term is defined in subdivision two of section four hundred of the correction law, and the actor is an employee who knows or reasonably should know that such person is committed to the care and custody or supervision of such department or hospital. For purposes of this paragraph, "employee" means (i) an employee of the state department of corrections and community supervision who, as part of his or her employment, performs duties:

      (A) in a state correctional facility in which the victim is confined at the time of the offense consisting of providing custody, medical or mental health services, counseling services, educational programs, vocational training, institutional parole services or direct supervision to inmates; or

      (B) of supervising persons released on community supervision and supervises the victim at the time of the offense or has supervised the victim and the victim is still under community supervision at the time of the offense; or

      (ii) an employee of the office of mental health who, as part of his or her employment, performs duties in a state correctional facility or hospital, as such term is defined in subdivision two of section four hundred of the correction law in which the inmate is confined at the time of the offense, consisting of providing custody, medical or mental health services, or direct supervision to such inmates; or

      (iii) a person, including a volunteer, providing direct services to inmates in a state correctional facility in which the victim is confined at the time of the offense pursuant to a contractual arrangement with the state department of corrections and community supervision or, in the case of a volunteer, a written agreement with such department, provided that the person received written notice concerning the provisions of this paragraph; or

      (f) committed to the care and custody of a local correctional facility, as such term is defined in subdivision two of section forty of the correction law, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to the care and custody of such facility. For purposes of this paragraph, "employee" means an employee of the local correctional facility where the person is committed who performs professional duties consisting of providing custody, medical or mental health services, counseling services, educational services, or vocational training for inmates. For purposes of this paragraph, "employee" shall also mean a person, including a volunteer or a government employee of the state department of corrections and community supervision or a local health, education or probation agency, providing direct services to inmates in the local correctional facility in which the victim is confined at the time of the offense pursuant to a contractual arrangement with the local correctional department or, in the case of such a volunteer or government employee, a written agreement with such department, provided that such person received written notice concerning the provisions of this paragraph; or

      (g) committed to or placed with the office of children and family services and in residential care, and the actor is an employee, not married to such person, who knows or reasonably should know that such person is committed to or placed with such office of children and family services and in residential care. For purposes of this paragraph, "employee" means an employee of the office of children and family services or of a residential facility in which such person is committed to or placed at the time of the offense who, as part of his or her employment, performs duties consisting of providing custody, medical or mental health services, counseling services, educational services, vocational training, or direct supervision to persons committed to or placed in a residential facility operated by the office of children and family services; or

      (h) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination.

      (h) a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55, and the act of sexual conduct occurs during a treatment session, consultation, interview, or examination; or

      (i) a resident or inpatient of a residential facility operated, licensed or certified by (i) the office of mental health; (ii) the office for people with developmental disabilities; or (iii) the office of alcoholism and substance abuse services, and the actor is an employee of the facility not married to such resident or inpatient. For purposes of this paragraph, "employee" means either: an employee of the agency operating the residential facility, who knows or reasonably should know that such person is a resident or inpatient of such facility and who provides direct care services, case management services, medical or other clinical services, habilitative services or direct supervision of the residents in the facility in which the resident resides; or an officer or other employee, consultant, contractor or volunteer of the residential facility, who knows or reasonably should know that the person is a resident of such facility and who is in direct contact with residents or inpatients; provided, however, that the provisions of this paragraph shall only apply to a consultant, contractor or volunteer providing services pursuant to a contractual arrangement with the agency operating the residential facility or, in the case of a volunteer, a written agreement with such facility, provided that the person received written notice concerning the provisions of this paragraph; provided further, however, "employee" shall not include a person with a developmental disability who is or was receiving services and is also an employee of a service provider and who has sexual contact with another service recipient who is a consenting adult who has consented to such contact.

      11
      NY Penal Law § 130.10 Sex offenses; limitation; defenses.
      12

      1. In any prosecution under this article in which the victim's lack of consent is based solely upon his or her incapacity to consent because he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for such incapacity to consent.

      13

      2. Conduct performed for a valid medical or mental health care purpose shall not constitute a violation of any section of this article in which incapacity to consent is based on the circumstances set forth in paragraph (h) of subdivision three of section 130.05 of this article.

      14

      3. In any prosecution for the crime of rape in the third degree as defined in section 130.25, criminal sexual act in the third degree as defined in section 130.40, aggravated sexual abuse in the fourth degree as defined in section 130.65-a, or sexual abuse in the third degree as defined in section 130.55 in which incapacity to consent is based on the circumstances set forth in paragraph (h) of subdivision three of section 130.05 of this article it shall be an affirmative defense that the client or patient consented to such conduct charged after having been expressly advised by the health care or mental health care provider that such conduct was not performed for a valid medical purpose.

      15

      4. In any prosecution under this article in which the victim's lack of consent is based solely on his or her incapacity to consent because he or she was less than seventeen years old, mentally disabled, a client or patient and the actor is a health care provider, or committed to the care and custody or supervision of the state department of corrections and community supervision or a hospital and the actor is an employee, it shall be a defense that the defendant was married to the victim as defined in subdivision four of section 130.00 of this article.

      16
      NY Penal Law § 130.16 Sex offenses; corroboration.
      17

      A person shall not be convicted of any offense defined in this article of which lack of consent is an element but results solely from incapacity to consent because of the victim's mental defect, or mental incapacity, or an attempt to commit the same, solely on the testimony of the victim, unsupported by other evidence tending to:

      18

      (a) Establish that an attempt was made to engage the victim in sexual intercourse, oral sexual conduct, anal sexual conduct, or sexual contact, as the case may be, at the time of the occurrence; and

      (b) Connect the defendant with the commission of the offense or attempted offense.

      19
      NY Penal Law § 130.20 Sexual misconduct.
      20

      A person is guilty of sexual misconduct when:

      21

      1. He or she engages in sexual intercourse with another person without such person's consent; or

      2. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person's consent; or

      3. He or she engages in sexual conduct with an animal or a dead human body. Sexual misconduct is a class A misdemeanor.

      22
      NY Penal Law § 130.25 Rape in the third degree.
      23

      A person is guilty of rape in the third degree when:

      24

      1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than seventeen years old;

      2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or

      3. He or she engages in sexual intercourse with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent. Rape in the third degree is a class E felony.

      25
      NY Penal Law § 130.30 Rape in the second degree.
      26

      A person is guilty of rape in the second degree when:

      27

      1. being eighteen years old or more, he or she engages in sexual intercourse with another person less than fifteen years old; or

      2. he or she engages in sexual intercourse with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

      It shall be an affirmative defense to the crime of rape in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.

      28

      Rape in the second degree is a class D felony.

      29
      NY Penal Law § 130.35 Rape in the first degree.
      30

      A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person:

      31

      1. By forcible compulsion; or

      2. Who is incapable of consent by reason of being physically helpless; or

      3. Who is less than eleven years old; or

      4. Who is less than thirteen years old and the actor is eighteen years old or more.

      32

      Rape in the first degree is a class B felony.

      33
      NY Penal Law § 130.40 Criminal sexual act in the third degree.
      34

      A person is guilty of criminal sexual act in the third degree when:

      35

      1. He or she engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other than being less than seventeen years old;

      2. Being twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old; or

      3. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent.

      36

      Criminal sexual act in the third degree is a class E felony.

      37
      NY Penal Law § 130.45 Criminal sexual act in the second degree.
      38

      A person is guilty of criminal sexual act in the second degree when:

      39

      1. being eighteen years old or more, he or she engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old; or

      2. he or she engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated.

      40

      It shall be an affirmative defense to the crime of criminal sexual act in the second degree as defined in subdivision one of this section that the defendant was less than four years older than the victim at the time of the act.

      41

      Criminal sexual act in the second degree is a class D felony.

      42
      NY Penal Law § 130.50 Criminal sexual act in the first degree.
      43

      A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person:

      44

      1. By forcible compulsion; or

      2. Who is incapable of consent by reason of being physically helpless; or

      3. Who is less than eleven years old; or

      4. Who is less than thirteen years old and the actor is eighteen years old or more.

      45

      Criminal sexual act in the first degree is a class B felony.

      46
      NY Penal Law § 130.52 Forcible touching.
      47

      A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor's sexual desire.

      48

      For the purposes of this section, forcible touching includes squeezing, grabbing or pinching.

      49

      Forcible touching is a class A misdemeanor.

      50
      NY Penal Law § 130.53 Persistent sexual abuse.
      51

      A person is guilty of persistent sexual abuse when he or she commits the crime of forcible touching, as defined in section 130.52 of this article, sexual abuse in the third degree, as defined in section 130.55 of this article, or sexual abuse in the second degree, as defined in section 130.60 of this article, and, within the previous ten year period, has been convicted two or more times, in separate criminal transactions for which sentence was imposed on separate occasions, of forcible touching, as defined in section 130.52 of this article, sexual abuse in the third degree as defined in section 130.55 of this article, sexual abuse in the second degree, as defined in section 130.60 of this article, or any offense defined in this article, of which the commission or attempted commission thereof is a felony.

      52

      Persistent sexual abuse is a class E felony.

      53
      NY Penal Law § 130.55 Sexual abuse in the third degree.
      54

      A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter's consent; except that in any prosecution under this section, it is an affirmative defense that (a) such other person's lack of consent was due solely to incapacity to consent by reason of being less than seventeen years old, and (b) such other person was more than fourteen years old, and (c) the defendant was less than five years older than such other person.

      55

      Sexual abuse in the third degree is a class B misdemeanor.

      56
      NY Penal Law § 130.60 Sexual abuse in the second degree.
      57

      A person is guilty of sexual abuse in the second degree when he or she subjects another person to sexual contact and when such other person is:

      58

      1. Incapable of consent by reason of some factor other than being less than seventeen years old; or

      2. Less than fourteen years old.

      59

      Sexual abuse in the second degree is a class A misdemeanor.

      60
      NY Penal Law § 130.65 Sexual abuse in the first degree.
      61

      A person is guilty of sexual abuse in the first degree when he or she subjects another person to sexual contact:

      62

      1. By forcible compulsion; or

      2. When the other person is incapable of consent by reason of being physically helpless; or

      3. When the other person is less than eleven years old; or

      4. When the other person is less than thirteen years old and the actor is twenty-one years old or older.

      63

      Sexual abuse in the first degree is a class D felony.

      64
      NY Penal Law § 130.65-a Aggravated sexual abuse in the fourth degree.
      65

      1. A person is guilty of aggravated sexual abuse in the fourth degree when:

      66

      (a) He or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person and the other person is incapable of consent by reason of some factor other than being less than seventeen years old; or

      (b) He or she inserts a finger in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person and such person is incapable of consent by reason of some factor other than being less than seventeen years old.

      67

      2. Conduct performed for a valid medical purpose does not violate the provisions of this section.

      68

      Aggravated sexual abuse in the fourth degree is a class E felony.

      69
      NY Penal Law § 130.66 Aggravated sexual abuse in the third degree.
      70

      1. A person is guilty of aggravated sexual abuse in the third degree when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person:

      71

      (a) By forcible compulsion; or

      (b) When the other person is incapable of consent by reason of being physically helpless; or

      (c) When the other person is less than eleven years old.

      72

      2. A person is guilty of aggravated sexual abuse in the third degree when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person and such person is incapable of consent by reason of being mentally disabled or mentally incapacitated.

      73

      3. Conduct performed for a valid medical purpose does not violate the provisions of this section.

      74

      Aggravated sexual abuse in the third degree is a class D felony.

      75
      NY Penal Law § 130.67 Aggravated sexual abuse in the second degree.
      76

      1. A person is guilty of aggravated sexual abuse in the second degree when he or she inserts a finger in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person:

      77

      (a) By forcible compulsion; or

      (b) When the other person is incapable of consent by reason of being physically helpless; or

      (c) When the other person is less than eleven years old.

      78

      2. Conduct performed for a valid medical purpose does not violate the provisions of this section.

      79

      Aggravated sexual abuse in the second degree is a class C felony.

      80
      NY Penal Law § 130.70 Aggravated sexual abuse in the first degree.
      81

      1. A person is guilty of aggravated sexual abuse in the first degree when he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person:

      82

      (a) By forcible compulsion; or

      (b) When the other person is incapable of consent by reason of being physically helpless; or

      (c) When the other person is less than eleven years old.

      83

      2. Conduct performed for a valid medical purpose does not violate the provisions of this section.

      84

      Aggravated sexual abuse in the first degree is a class B felony.

      85
      NY Penal Law § 130.75 Course of sexual conduct against a child in the first degree.
      86

      1. A person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration:

      87

      (a) he or she engages in two or more acts of sexual conduct, which includes at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than eleven years old; or

      (b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct, which include at least one act of sexual intercourse, oral sexual conduct, anal sexual conduct or aggravated sexual contact, with a child less than thirteen years old.

      88

      2. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this section.

      89

      Course of sexual conduct against a child in the first degree is a class B felony.

      90
      NY Penal Law § 130.80 Course of sexual conduct against a child in the second degree.
      91

      1. A person is guilty of course of sexual conduct against a child in the second degree when, over a period of time not less than three months in duration:

      92

      (a) he or she engages in two or more acts of sexual conduct with a child less than eleven years old; or

      (b) he or she, being eighteen years old or more, engages in two or more acts of sexual conduct with a child less than thirteen years old.

      93

      2. A person may not be subsequently prosecuted for any other sexual offense involving the same victim unless the other charged offense occurred outside the time period charged under this section.

      94

      Course of sexual conduct against a child in the second degree is a class D felony.

      95
      NY Penal Law § 130.85 Female genital mutilation.
      96

      1. A person is guilty of female genital mutilation when:

      97

      (a) a person knowingly circumcises, excises, or infibulates the whole or any part of the labia majora or labia minora or clitoris of another person who has not reached eighteen years of age; or

      (b) being a parent, guardian or other person legally responsible and charged with the care or custody of a child less than eighteen years old, he or she knowingly consents to the circumcision, excision or infibulation of whole or part of such child's labia majora or labia minora or clitoris.

      98

      2. Such circumcision, excision, or infibulation is not a violation of this section if such act is:

      99

      (a) necessary to the health of the person on whom it is performed, and is performed by a person licensed in the place of its performance as a medical practitioner; or

      (b) performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place it is performed as a medical practitioner, midwife, or person in training to become such a practitioner or midwife.

      100

      3. For the purposes of paragraph (a) of subdivision two of this section, no account shall be taken of the effect on the person on whom such procedure is to be performed of any belief on the part of that or any other person that such procedure is required as a matter of custom or ritual.

      101

      Female genital mutilation is a class E felony.

      102
      NY Penal Law § 130.90 Facilitating a sex offense with a controlled substance.
      103

      A person is guilty of facilitating a sex offense with a controlled substance when he or she:

      104

      1. knowingly and unlawfully possesses a controlled substance or any preparation, compound, mixture or substance that requires a prescription to obtain and administers such substance or preparation, compound, mixture or substance that requires a prescription to obtain to another person without such person's consent and with intent to commit against such person conduct constituting a felony defined in this article; and

      2. commits or attempts to commit such conduct constituting a felony defined in this article.

      105

      Facilitating a sex offense with a controlled substance is a class D felony.

      106
      NY Penal Law § 130.91 Sexually motivated felony.
      107

      1. A person commits a sexually motivated felony when he or she commits a specified offense for the purpose, in whole or substantial part, of his or her own direct sexual gratification.

      108

      2. A "specified offense" is a felony offense defined by any of the following provisions of this chapter: assault in the second degree as defined in section 120.05, assault in the first degree as defined in section 120.10, gang assault in the second degree as defined in section 120.06, gang assault in the first degree as defined in section 120.07, stalking in the first degree as defined in section 120.60, strangulation in the second degree as defined in section 121.12, strangulation in the first degree as defined in section 121.13, manslaughter in the second degree as defined in subdivision one of section 125.15, manslaughter in the first degree as defined in section 125.20, murder in the second degree as defined in section 125.25, aggravated murder as defined in section 125.26, murder in the first degree as defined in section 125.27, kidnapping in the second degree as defined in section 135.20, kidnapping in the first degree as defined in section 135.25, burglary in the third degree as defined in section 140.20, burglary in the second degree as defined in section 140.25, burglary in the first degree as defined in section 140.30, arson in the second degree as defined in section 150.15, arson in the first degree as defined in section 150.20, robbery in the third degree as defined in section 160.05, robbery in the second degree as defined in section 160.10, robbery in the first degree as defined in section 160.15, promoting prostitution in the second degree as defined in section 230.30, promoting prostitution in the first degree as defined in section 230.32, compelling prostitution as defined in section 230.33, disseminating indecent material to minors in the first degree as defined in section 235.22, use of a child in a sexual performance as defined in section 263.05, promoting an obscene sexual performance by a child as defined in section 263.10, promoting a sexual performance by a child as defined in section 263.15, or any felony attempt or conspiracy to commit any of the foregoing offenses.

      109
      NY Penal Law § 130.92 Sentencing.
      110

      1. When a person is convicted of a sexually motivated felony pursuant to this article, and the specified felony is a violent felony offense, as defined in section 70.02 of this chapter, the sexually motivated felony shall be deemed a violent felony offense.

      111

      2. When a person is convicted of a sexually motivated felony pursuant to this article, the sexually motivated felony shall be deemed to be the same offense level as the specified offense the defendant committed.

      112

      3. Persons convicted of a sexually motivated felony as defined in section 130.91 of this article, must be sentenced in accordance with the provisions of section 70.80 of this chapter.

      113
      NY Penal Law § 130.95 Predatory sexual assault.
      114

      A person is guilty of predatory sexual assault when he or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, and when:

      115

      1. In the course of the commission of the crime or the immediate flight therefrom, he or she:

      (a) Causes serious physical injury to the victim of such crime; or

      (b) Uses or threatens the immediate use of a dangerous instrument; or

      2. He or she has engaged in conduct constituting the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, against one or more additional persons; or

      3. He or she has previously been subjected to a conviction for a felony defined in this article, incest as defined in section 255.25 of this chapter or use of a child in a sexual performance as defined in section 263.05 of this chapter.

      116

      Predatory sexual assault is a class A-II felony.

      117
      NY Penal Law § 130.96 Predatory sexual assault against a child.
      118

      A person is guilty of predatory sexual assault against a child when, being eighteen years old or more, he or she commits the crime of rape in the first degree, criminal sexual act in the first degree, aggravated sexual abuse in the first degree, or course of sexual conduct against a child in the first degree, as defined in this article, and the victim is less than thirteen years old.

      119

      Predatory sexual assault against a child is a class A-II felony.

    • 1.4 WI Statutes secs. 940.225 (2011)

      1
      940.01 First-degree intentional homicide.
      2

      (1)  Offenses.

      3

      (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.

      4

      (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.

      5

      (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:

      6

      (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).

      7

      (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).

      8

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

      9

      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.

      10

      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.

      11

      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).

      12

      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).

      13

      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).

      14

      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.

      15

      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).

      16

      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.

      17

      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.

      18

      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.

      19

      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.

      20

      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.

      21

      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.

      22

      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.

      23

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

      24

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

      25
      940.02 First-degree reckless homicide.
      26

      (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.

      27

      (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.

      28

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

      29

      (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.

      30

      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.

      31

      (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.

      32

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

      33

      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).

      34

      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]

      35

      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).

      36

      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.

      37

      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.

      38

      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.

      39

      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.

      40

      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.

      41

      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.

      42

      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.

      43

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

      44
      940.03 Felony murder.
      45

      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.

      46

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

      47

      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]

      48

      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).

      49

      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.

      50

      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.

      51

      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.

      52

      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.

      53

      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.

      54

      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.

      55
      940.04 Abortion.
      56

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

      57

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

      58

      (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.

      59

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

      60

      (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.

      61

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

      62

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

      63

      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).

      64

      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).

      65

      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.

      66

      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).

      67

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

      68

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

      69

      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).

      70

      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).

      71

      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).

      72

      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).

      73

      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).

      74

      State regulation of abortion. 1970 WLR 933.

      75
      940.05 Second-degree intentional homicide.
      76

      (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:

      77

      (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.

      78

      (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.

      79

      (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:

      80

      (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.

      81

      (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.

      82

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

      83

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

      84

      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.

      85

      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.

      86

      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]

      87

      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).

      88

      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.

      89

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

      90
      940.06 Second-degree reckless homicide.
      91

      (1) Whoever recklessly causes the death of another human being is guilty of a Class D felony.

      92

      (2) Whoever recklessly causes the death of an unborn child is guilty of a Class D felony.

      93

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

      94

      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]

      95

      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.

      96

      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.

      97

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

      98
      940.07 Homicide resulting from negligent control of vicious animal.
      99

      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.

      100

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

      101

      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.

      102
      940.08 Homicide by negligent handling of dangerous weapon, explosives or fire.
      103

      (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.

      104

      (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.

      105

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

      106

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

      107

      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]

      108

      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.

      109
      940.09 Homicide by intoxicated use of vehicle or firearm.
      110

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

      111

      (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.

      112

      (1c) 

      113

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

      114

      (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).

      115

      (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.

      116

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

      117

      (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.

      118

      (1m) 

      119

      (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.

      120

      (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.

      121

      (2) 

      122

      (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).

      123

      (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.

      124

      (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.

      125

      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.

      126

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

      127

      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).

      128

      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).

      129

      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.

      130

      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).

      131

      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.

      132

      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.

      133

      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.

      134

      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.

      135

      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.

      136

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

      137

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

      138
      940.10 Homicide by negligent operation of vehicle.
      139

      (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.

      140

      (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.

      141

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

      142

      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]

      143

      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).

      144

      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).

      145

      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.

      146

      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.

      147

      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.

      148
      940.11 Mutilating or hiding a corpse.
      149

      (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.

      150

      (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.

      151

      (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.

      152

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

      153

      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.

      154
      940.12 Assisting suicide.
      155

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

      156

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

      157
      940.13 Abortion exception.
      158

      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.

      159

      History: 1985 a. 56.

      160
      940.15 Abortion.
      161

      (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.

      162

      (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.

      163

      (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.

      164

      (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.

      165

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

      166

      (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.

      167

      (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.

      168

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

      169

      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).

      170
      940.16 Partial-birth abortion.
      171

      (1) In this section:

      172

      (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.

      173

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

      174

      (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.

      175

      History: 1997 a. 219.

      176

      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).

      177

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

      178
      SUBCHAPTER II
      179
      BODILY SECURITY
      180
      940.19 Battery; substantial battery; aggravated battery.
      181

      (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.

      182

      (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.

      183

      (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.

      184

      (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.

      185

      (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:

      186

      (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.

      187

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

      188

      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).

      189

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

      190

      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).

      191

      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.

      192

      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.

      193
      940.195 Battery to an unborn child; substantial battery to an unborn child; aggravated battery to an unborn child.
      194

      (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.

      195

      (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.

      196

      (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.

      197

      (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.

      198

      (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.

      199

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

      200
      940.20 Battery: special circumstances.
      201

      (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.

      202

      (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.

      203

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

      204

      (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.

      205

      (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.

      206

      (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.

      207

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

      208

      (a) In this subsection:

      209

      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.

      210

      (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.

      211

      (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.

      212

      (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.

      213

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

      214

      (a) In this subsection:

      215

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

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

      216

      (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.

      217

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

      218

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

      219

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

      220

      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.

      221

      (7) Battery to emergency medical care providers.

      222

      (a) In this subsection:

      223

      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.

      224

      (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.

      225

      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.

      226

      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).

      227

      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).

      228

      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).

      229

      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).

      230

      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.

      231
      940.201 Battery or threat to witnesses.
      232

      (1) In this section:

      233

      (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).

      234

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

      235

      (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.

      236

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

      237

      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).

      238
      940.203 Battery or threat to judge.
      239

      (1) In this section:

      240

      (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.

      241

      (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:

      242

      (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.

      243

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

      244

      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.

      245
      940.205 Battery or threat to department of revenue employee.
      246

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

      247

      (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:

      248

      (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.

      249

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

      250
      940.207 Battery or threat to department of safety and professional services or department of workforce development employee.
      251

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

      252

      (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:

      253

      (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.

      254

      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.

      255
      940.208 Battery to certain employees of counties, cities, villages, or towns.
      256

      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:

      257

      (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.

      258

      History: 2007 a. 193.

      259
      940.21 Mayhem.
      260

      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.

      261

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

      262

      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.

      263

      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).

      264
      940.22 Sexual exploitation by therapist; duty to report.
      265

      (1)  Definitions. In this section:

      266

      (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.

      267

      (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.

      268

      (3) Reports of sexual contact.

      269

      (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.

      270

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

      271

      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.

      272

      (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.

      273

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

      274

      (4) Confidentiality of reports and records.

      275

      (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.

      276

      (b)

      277

      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.

      278

      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.

      279

      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.

      280

      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.

      281

      (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.

      282

      (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.

      283

      (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.

      284

      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.

      285

      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.

      286

      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.

      287

      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.

      288

      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.

      289
      940.225 Sexual assault.
      290

      (1)  First degree sexual assault. Whoever does any of the following is guilty of a Class B felony:

      291

      (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.

      292

      (2) Second degree sexual assault. Whoever does any of the following is guilty of a Class C felony:

      293

      (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.

      294

      (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.

      295

      (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.

      296

      (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):

      297

      (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.

      298

      (5) Definitions. In this section:

      299

      (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).

      300

      (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.

      301

      (7) Death of victim. This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.

      302

      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.

      303

      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]

      304

      Failure to resist is not consent under sub. (4). State v. Clark, 87 Wis. 2d 804, 275 N.W.2d 715 (1979).

      305

      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).

      306

      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.

      307

      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).

      308

      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).

      309

      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).

      310

      "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).

      311

      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).

      312

      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).

      313

      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).

      314

      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).

      315

      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).

      316

      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).

      317

      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).

      318

      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).

      319

      "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).

      320

      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).

      321

      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).

      322

      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).

      323

      Sub. (2) (c) is not unconstitutionally vague. State v. Smith, 215 Wis. 2d 84, 572 N.W.2d 496 (Ct. App. 1997), 96-2961.

      324

      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.

      325

      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.

      326

      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.

      327

      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.

      328

      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.

      329

      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.

      330

      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.

      331

      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.

      332

      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.

      333

      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).

      334

      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).

      335
      940.23 Reckless injury.
      336

      (1)  First-degree reckless injury.

      337

      (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.

      338

      (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.

      339

      (2) Second-degree reckless injury.

      340

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

      341

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

      342

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

      343

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

      344

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

      345

      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).

      346

      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.

      347

      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.

      348

      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.

      349

      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.

      350

      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.

      351

      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.

      352
      940.235 Strangulation and suffocation.
      353

      (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.

      354

      (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.

      355

      History: 2007 a. 127.

      356
      940.24 Injury by negligent handling of dangerous weapon, explosives or fire.
      357

      (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.

      358

      (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.

      359

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

      360

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

      361

      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]

      362

      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.

      363
      940.25 Injury by intoxicated use of a vehicle.
      364

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

      365

      (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.

      366

      (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.

      367

      (1m) 

      368

      (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.

      369

      (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.

      370

      (2) 

      371

      (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).

      372

      (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.

      373

      (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.

      374

      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.

      375

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

      376

      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).

      377

      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).

      378

      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.

      379

      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.

      380

      "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.

      381
      940.285 Abuse of individuals at risk.
      382

      (1)  Definitions. In this section:

      383

      (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.

      384

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

      385
      940.29 Abuse of residents of penal facilities.
      386

      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.

      387

      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.

      388
      940.291 Law enforcement officer; failure to render aid.
      389

      (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.

      390

      (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.

      391

      History: 1983 a. 27.

      392
      940.295 Abuse and neglect of patients and residents.
      393

      (1)  Definitions. In this section:

      394

      (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).

      395

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

      396

      (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.

      397

      (3) Abuse and neglect; penalties.

      398

      (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):

      399

      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.

      400

      (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.

      401

      (b)

      402

      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.

      403

      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.

      404

      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.

      405

      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.

      406

      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.

      407

      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.

      408

      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.

      409

      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.

      410

      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).

      411

      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.

      412

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

      413

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

      414
      940.30 False imprisonment.
      415

      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.

      416

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

      417

      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.

      418

      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).

      419

      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.

      420

      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.

      421
      940.302 Human trafficking.
      422

      (1) In this section:

      423

      (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.

      424

      (2) 

      425

      (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:

      426

      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.

      427

      (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).

      428

      (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.

      429

      History: 2007 a. 116.

      430

      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.

      431
      940.305 Taking hostages.
      432

      (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.

      433

      (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.

      434

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

      435

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

      436
      940.31 Kidnapping.
      437

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

      438

      (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.

      439

      (2) 

      440

      (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.

      441

      (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.

      442

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

      443

      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).

      444

      "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).

      445

      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).

      446

      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).

      447

      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.

      448

      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.

      449
      940.32 Stalking.
      450

      (1) In this section:

      451

      (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.

      452

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

      453

      (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.

      454

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

      455

      (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.

      456

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

      457

      (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.

      458

      (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).

      459

      (4) 

      460

      (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:

      461

      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.

      462

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

      463

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

      464

      (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.

      465

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

      466

      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.

      467

      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.

      468

      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.

      469

      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.

      470

      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.

      471
      940.34 Duty to aid victim or report crime.
      472

      (1) 

      473

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

      474

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

      475

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

      476

      (2) 

      477

      (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.

      478

      (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.

      479

      (c)

      480

      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.

      481

      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.

      482

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

      483

      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.

      484

      (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.

      485

      (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.

      486

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

      487

      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).

      488
      940.41 Definitions.
      489

      In ss. 940.42 to 940.49:

      490

      (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.

      491

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

      492
      940.42 Intimidation of witnesses; misdemeanor.
      493

      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.

      494

      History: 1981 c. 118.

      495

      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.

      496

      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.

      497
      940.43 Intimidation of witnesses; felony.
      498

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

      499

      (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.

      500

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

      501

      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).

      502
      940.44 Intimidation of victims; misdemeanor.
      503

      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:

      504

      (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.

      505

      History: 1981 c. 118.

      506

      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).

      507

      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).

      508

      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.

      509

      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.

      510
      940.45 Intimidation of victims; felony.
      511

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

      512

      (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.

      513

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

      514
      940.46 Attempt prosecuted as completed act.
      515

      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.

      516

      History: 1981 c. 118.

      517
      940.47 Court orders.
      518

      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:

      519

      (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.

      520

      History: 1981 c. 118.

      521
      940.48 Violation of court orders.
      522

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

      523

      (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.

      524

      History: 1981 c. 118.

      525
      940.49 Pretrial release.
      526

      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.

      527

      History: 1981 c. 118.

    • 1.5 Model Penal Code 213 (1962)

    • 1.6 Harvard College Ad Board Disciplinary Process

    • 1.7 FAS Sexual Assault Policy

    • 1.8 WI Statutes secs. 948.02 (2011)

      1
      948.01 Definitions.
      2

      In this chapter, the following words and phrases have the designated meanings unless the context of a specific section manifestly requires a different construction:

      3

      (1) "Child" means a person who has not attained the age of 18 years, except that for purposes of prosecuting a person who is alleged to have violated a state or federal criminal law, "child" does not include a person who has attained the age of 17 years.

      (1d) "Exhibit," with respect to a recording of an image that is not viewable in its recorded form, means to convert the recording of the image into a form in which the image may be viewed.

      (1g) "Joint legal custody" has the meaning given in s. 767.001 (1s).

      (1r) "Legal custody" has the meaning given in s. 767.001 (2).

      (2) "Mental harm" means substantial harm to a child's psychological or intellectual functioning which may be evidenced by a substantial degree of certain characteristics of the child including, but not limited to, anxiety, depression, withdrawal or outward aggressive behavior. "Mental harm" may be demonstrated by a substantial and observable change in behavior, emotional response or cognition that is not within the normal range for the child's age and stage of development.

      (3) "Person responsible for the child's welfare" includes the child's parent; stepparent; guardian; foster parent; an employee of a public or private residential home, institution, or agency; other person legally responsible for the child's welfare in a residential setting; or a person employed by one legally responsible for the child's welfare to exercise temporary control or care for the child.

      (3m) "Physical placement" has the meaning given in s. 767.001 (5).

      (3r) "Recording" includes the creation of a reproduction of an image or a sound or the storage of data representing an image or a sound.

      (4) "Sadomasochistic abuse" means the infliction of force, pain or violence upon a person for the purpose of sexual arousal or gratification.

      (5) "Sexual contact" means any of the following:

      (a) 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 sexually humiliating the complainant or sexually arousing or gratifying the defendant:

      1. 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.

      2. 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.

      (b) 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.

      (c) 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.

      (6) "Sexual intercourse" means vulvar penetration 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.

      (7) "Sexually explicit conduct" means actual or simulated:

      (a) Sexual intercourse, meaning vulvar penetration 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 a person or upon the person's instruction. The emission of semen is not required;

      (b) Bestiality;

      (c) Masturbation;

      (d) Sexual sadism or sexual masochistic abuse including, but not limited to, flagellation, torture or bondage; or

      (e) Lewd exhibition of intimate parts.

      4

      History: 1987 a. 332; 1989 a. 31; 1993 a. 446; 1995 a. 27, 67, 69, 100, 214; 2001 a. 16; 2005 a. 273, 435; 2007 a. 96; 2009 a. 28.

      5

      Instructions were proper that told the jury that "lewd" under sub. (7) (e), when applied to photographs, is not mere nudity but requires the display of the genital area and sexual suggestiveness as determined by the jury in the use of common sense. State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676 (1991).

      6

      When a defendant allows sexual contact initiated by a child, the defendant is guilty of intentional touching as defined in sub. (5). State v. Traylor, 170 Wis. 2d 393, 489 N.W.2d 626 (Ct. App. 1992).

      7

      The definition of "parent" in sub. (3) is all-inclusive; a defendant whose paternity was admitted but had never been adjudged was a "parent." State v. Evans, 171 Wis. 2d 471, 492 N.W.2d 141 (1992).

      8

      A live-in boyfriend can be a person responsible for the welfare of a child if he was used by the child's legal guardian as a caretaker for the child. State v. Sostre, 198 Wis. 2d 409, 542 N.W.2d 774 (1996), 94-0778.

      9

      The phrase "by the defendant or upon the defendant's instruction" in sub. (6) modifies the entire list of acts and establishes that for intercourse to occur the defendant either had to perform one of the actions on the victim or instruct the victim to perform one of the actions on himself or herself. State v. Olson, 2000 WI App 158, 238 Wis. 2d 74, 616 N.W.2d 144, 99-2851.

      10

      A person under 18 years of age employed by his or her parent to care for a child for whom the parent was legally responsible can be a person responsible for the welfare of the child under sub. (3). State v. Hughes, 2005 WI App 155, 285 Wis. 2d 388, 702 N.W.2d 87, 04-2122.

      11

      Petrone established guidelines for defining "lewd" and "sexually explicit." It did not require that a child be "unclothed" in order for a picture to be lewd. Instead, the visible display of the child's pubic area and posing the child as a sex object with an unnatural or unusual focus on the child's genitalia should inform the common sense determination by the trier of fact regarding the pornographic nature of the image. It follows that when a child's pubic area is visibly displayed, the lack of a full opaque covering is a proper consideration that should inform the common sense determination by the trier of fact. State v. Lala, 2009 WI App 137, 321 Wis. 2d 292, 773 N.W.2d 218, 08-2893.

      12
      948.015  Other offenses against children.
      13

      In addition to the offenses under this chapter, offenses against children include, but are not limited to, the following:

      14

      (1) Sections 103.19 to 103.32 and 103.64 to 103.82, relating to employment of minors.

      (2) Section 118.13, relating to pupil discrimination.

      (3) Section 125.07, relating to furnishing alcohol beverages to underage persons.

      (4) Section 253.11, relating to infant blindness.

      (5) Section 254.12, relating to applying lead-bearing paints or selling or transferring a fixture or other object containing a lead-bearing paint.

      (6) Sections 961.01 (6) and (9) and 961.49, relating to delivering and distributing controlled substances or controlled substance analogs to children.

      (7) Section 444.09 (4), relating to boxing.

      (8) Section 961.573 (3) (b) 2., relating to the use or possession of methamphetamine-related drug paraphernalia in the presence of a child who is 14 years of age or younger.

      (9) A crime that involves an act of domestic abuse, as defined in s. 968.075 (1) (a), if the court includes in its reasoning under s. 973.017 (10m) for its sentencing decision the aggravating factor under s. 973.017 (6m).

      15

      History: 1987 a. 332; 1989 a. 31; 1993 a. 27; 1995 a. 448; 2005 a. 263; 2011 a. 273.

      16
      948.02 Sexual assault of a child.
      17

      (1)  First degree sexual assault.

      18

      (am) Whoever has sexual contact or sexual intercourse with a person who has not attained the age of 13 years and causes great bodily harm to the person is guilty of a Class A felony.

      19

      (b) Whoever has sexual intercourse with a person who has not attained the age of 12 years is guilty of a Class B felony.

      20

      (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.

      21

      (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.

      22

      (e) Whoever has sexual contact with a person who has not attained the age of 13 years is guilty of a Class B felony.

      23

      (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.

      24

      (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.

      25

      (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.

      26

      (5) Death of victim. This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.

      27

      History: 1987 a. 332; 1989 a. 31; 1995 a. 14, 69; 2001 a. 109; 2005 a. 430, 437; 2007 a. 80.

      28

      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).

      29

      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).

      30

      The criminalization, under sub. (2), of consensual sexual relations with a child does not violate the defendant's constitutionally protected privacy rights. State v. Fisher, 211 Wis. 2d 665, 565 N.W.2d 565 (Ct. App. 1997), 96-1764.

      31

      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).

      32

      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.

      33

      Expert evidence of sexual immaturity is relevant to a preadolescent's 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, 00-3045.

      34

      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 defendant's control within the meaning of the attempt statute. State v. Grimm, 2002 WI App 242, 258 Wis. 2d 166, 653 N.W.2d 284, 01-0138.

      35

      Section 939.22 (19) includes female and male breasts as each is "the breast of a human being." The touching of a boy's breast constitutes "sexual contact" under sub. (2). State v. Forster, 2003 WI App 29, 260 Wis. 2d 149, 659 N.W.2d 144, 02-0602.

      36

      Sub. (2), in conjunction with ss. 939.23 and 939.43 (2), precludes a defense predicated on a child's intentional age misrepresentation. The statutes do not violate an accused's 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, 03-1493.

      37

      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, 301 Wis. 2d 418, 734 N.W.2d 23, 05-1189.

      38

      "Sexual intercourse" as used in this section does not include bona fide medical, health care, and hygiene procedures. This construction cures the statute's silence regarding medically appropriate conduct. Thus the statute is not unconstitutionally overbroad. State v. Lesik, 2010 WI App 12, 322 Wis. 2d 753, 780 N.W.2d 210, 08-3072.

      39

      The constitutionality of this statute is upheld. Sweeney v. Smith, 9 F. Supp. 2d 1026 (1998).

      40

      Statutory Rape in Wisconsin: History, Rationale, and the Need for Reform. Olszewski. 89 MLR 693 (2005).

      41
      948.025  Engaging in repeated acts of sexual assault of the same child.
      42

      (1) Whoever commits 3 or more violations under s. 948.02 (1) or (2) within a specified period of time involving the same child is guilty of:

      43

      (a) A Class A felony if at least 3 of the violations were violations of s. 948.02 (1) (am).

      (b) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1) (am), (b), or (c).

      (c) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1) (am), (b), (c), or (d).

      (d) A Class B felony if at least 3 of the violations were violations of s. 948.02 (1).

      (e) A Class C felony if at least 3 of the violations were violations of s. 948.02 (1) or (2).

      44

      (2) 

      45

      (a) If an action under sub. (1) (a) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations of s. 948.02 (1) (am) occurred within the specified period of time but need not agree on which acts constitute the requisite number.

      46

      (b) If an action under sub. (1) (b) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations of s. 948.02 (1) (am), (b), or (c) occurred within the specified period of time but need not agree on which acts constitute the requisite number and need not agree on whether a particular violation was a violation of s. 948.02 (1) (am), (b), or (c).

      47

      (c) If an action under sub. (1) (c) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations of s. 948.02 (1) (am), (b), (c), or (d) occurred within the specified period of time but need not agree on which acts constitute the requisite number and need not agree on whether a particular violation was a violation of s. 948.02 (1) (am), (b), (c), or (d).

      48

      (d) If an action under sub. (1) (d) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations of s. 948.02 (1) occurred within the specified period of time but need not agree on which acts constitute the requisite number.

      49

      (e) If an action under sub. (1) (e) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations of s. 948.02 (1) or (2) occurred within the specified period of time but need not agree on which acts constitute the requisite number and need not agree on whether a particular violation was a violation of s. 948.02 (1) or (2).

      50

      (3) The state may not charge in the same action a defendant with a violation of this section and with a violation involving the same child under s. 948.02 or 948.10, unless the other violation occurred outside of the time period applicable under sub. (1). This subsection does not prohibit a conviction for an included crime under s. 939.66 when the defendant is charged with a violation of this section.

      51

      History: 1993 a. 227; 1995 a. 14; 2001 a. 109; 2005 a. 430, 437; 2007 a. 80.

      52

      This section does not violate the right to a unanimous verdict or to due process. State v. Johnson, 2001 WI 52, 243 Wis. 2d 365, 627 N.W.2d 455, 99-2968.

      53

      Convicting the defendant on 3 counts of first-degree sexual assault of a child and one count of repeated acts of sexual assault of a child when all 4 charges involved the same child and the same time period violated sub. (3). A court may reverse the conviction on the repeated acts charge under sub. (1) rather than the convictions for specific acts of sexual assault under s. 948.02 (1) when the proscription against multiple charges in sub. (3) is violated even if the repeated acts charge was filed prior to the charges for the specific actions. State v. Cooper, 2003 WI App 227, 267 Wis. 2d 886, 672 N.W.2d 118, 02-2247.

      54

      The state may bring multiple prosecutions under sub. (1) when two or more episodes involving "3 or more violations under s. 948.02 (1) or (2) within a specified period of time involving the same child" are discrete as to time and venue. State v. Nommensen, 2007 WI App 224, 305 Wis. 2d 695, 741 N.W.2d 481, 06-2727.

      55
      948.03 Physical abuse of a child.
      56

      (1)  Definitions. In this section, "recklessly" means conduct which creates a situation of unreasonable risk of harm to and demonstrates a conscious disregard for the safety of the child.

      57

      (2) Intentional causation of bodily harm.

      58

      (a) Whoever intentionally causes great bodily harm to a child is guilty of a Class C felony.

      59

      (b) Whoever intentionally causes bodily harm to a child is guilty of a Class H felony.

      60

      (c) Whoever intentionally causes bodily harm to a child by conduct which creates a high probability of great bodily harm is guilty of a Class F felony.

      61

      (3) Reckless causation of bodily harm.

      62

      (a) Whoever recklessly causes great bodily harm to a child is guilty of a Class E felony.

      63

      (b) Whoever recklessly causes bodily harm to a child is guilty of a Class I felony.

      64

      (c) Whoever recklessly causes bodily harm to a child by conduct which creates a high probability of great bodily harm is guilty of a Class H felony.

      65

      (4) Failing to act to prevent bodily harm.

      66

      (a) A person responsible for the child's welfare is guilty of a Class F felony if that person has knowledge that another person intends to cause, is causing or has intentionally or recklessly caused great bodily harm to the child and is physically and emotionally capable of taking action which will prevent the bodily harm from occurring or being repeated, fails to take that action and the failure to act exposes the child to an unreasonable risk of great bodily harm by the other person or facilitates the great bodily harm to the child that is caused by the other person.

      67

      (b) A person responsible for the child's welfare is guilty of a Class H felony if that person has knowledge that another person intends to cause, is causing or has intentionally or recklessly caused bodily harm to the child and is physically and emotionally capable of taking action which will prevent the bodily harm from occurring or being repeated, fails to take that action and the failure to act exposes the child to an unreasonable risk of bodily harm by the other person or facilitates the bodily harm to the child that is caused by the other person.

      68

      (6) Treatment through prayer. A person is not guilty of an offense under this section solely because he or she provides a child with treatment by spiritual means through prayer alone for healing in accordance with the religious method of healing permitted under s. 48.981 (3) (c) 4. or 448.03 (6) in lieu of medical or surgical treatment.

      69

      History: 1987 a. 332; 2001 a. 109; 2007 a. 80; 2009 a. 308.

      70

      To obtain a conviction for aiding and abetting a violation of sub. (2) or (3), the state must prove conduct that as a matter of objective fact aids another in executing the crime. State v. Rundle, 176 Wis. 2d 985, 500 N.W.2d 916 (Ct. App. 1993).

      71

      A live-in boyfriend can be a person responsible for the welfare of a child under sub. (5) if he was used by the child's legal guardian as a caretaker for the child. State v. Sostre, 198 Wis. 2d 409, 542 N.W.2d 774 (1996).

      72

      To overcome the privilege of parental discipline in s. 939.45 (5), the state must prove beyond a reasonable doubt that only one of the following is not met: 1) the use of force must be reasonably necessary; 2) the amount and nature of the force used must be reasonable; and 3) the force used must not be known to cause, or create a substantial risk of, great bodily harm or death. Whether a reasonable person would have believed the amount of force used was necessary and not excessive must be determined from the standpoint of the defendant at the time of the defendant's acts. The standard is what a person of ordinary intelligence and prudence would have believed in the defendant's position under the circumstances that existed at the time of the alleged offense. State v. Kimberly B. 2005 WI App 115, 283 Wis. 2d 731, 699 N.W.2d 641, 04-1424.

      73

      The definition of reckless in this section is distinct from the general definition found in s. 939.24 and does not contain a state of mind element. Because the defense of mistake defense applies only to criminal charges with a state of mind element the trial court properly exercised its discretion in refusing to give an instruction on the mistake defense. State v. Hemphill, 2006 WI App 185, 296 Wis. 2d 198, 722 N.W. 2d 393, 05-1350.

      74

      Reckless child abuse requires the defendant's actions demonstrate a conscious disregard for the safety of a child, not that the defendant was subjectively aware of that risk. In contrast, criminal recklessness under s. 939.24 (1) is defined as when the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk. Thus, recklessly causing harm to a child is distinguished from criminal recklessness, because only the latter includes a subjective component. State v. Williams, 2006 WI App 212, 296 Wis. 2d 834, 723 N.W. 2d 719, 05-2282.

      75

      Testimony supporting the defendant father's assertion that he was beaten with a belt as a child was not relevant to whether the amount of force he used in spanking his daughter was objectively reasonable. A parent may not abuse his or her child and claim that conduct is reasonable based on his or her history of being similarly abused. State v. Williams, 2006 WI App 212, 296 Wis. 2d 834, 723 N.W. 2d 719, 05-2282.

      76
      948.04 Causing mental harm to a child.
      77

      (1) Whoever is exercising temporary or permanent control of a child and causes mental harm to that child by conduct which demonstrates substantial disregard for the mental well-being of the child is guilty of a Class F felony.

      78

      (2) A person responsible for the child's welfare is guilty of a Class F felony if that person has knowledge that another person has caused, is causing or will cause mental harm to that child, is physically and emotionally capable of taking action which will prevent the harm, fails to take that action and the failure to act exposes the child to an unreasonable risk of mental harm by the other person or facilitates the mental harm to the child that is caused by the other person.

      79

      History: 1987 a. 332; 2001 a. 109.

      80
      948.05 Sexual exploitation of a child.
      81

      (1) Whoever does any of the following with knowledge of the character and content of the sexually explicit conduct involving the child may be penalized under sub. (2p):

      82

      (a) Employs, uses, persuades, induces, entices, or coerces any child to engage in sexually explicit conduct for the purpose of recording or displaying in any way the conduct.

      (b) Records or displays in any way a child engaged in sexually explicit conduct.

      83

      (1m) Whoever produces, performs in, profits from, promotes, imports into the state, reproduces, advertises, sells, distributes, or possesses with intent to sell or distribute, any recording of a child engaging in sexually explicit conduct may be penalized under sub. (2p) if the person knows the character and content of the sexually explicit conduct involving the child and if the person knows or reasonably should know that the child engaging in the sexually explicit conduct has not attained the age of 18 years.

      84

      (2) A person responsible for a child's welfare who knowingly permits, allows or encourages the child to engage in sexually explicit conduct for a purpose proscribed in sub. (1) (a) or (b) or (1m) may be penalized under sub. (2p).

      85

      (2p) 

      86

      (a) Except as provided in par. (b), a person who violates sub. (1), (1m), or (2) is guilty of a Class C felony.

      87

      (b) A person who violates sub. (1), (1m), or (2) is guilty of a Class F felony if the person is under 18 years of age when the offense occurs.

      88

      (3) It is an affirmative defense to prosecution for violation of sub. (1) (a) or (b) or (2) if the defendant had reasonable cause to believe that the child had attained the age of 18 years. A defendant who raises this affirmative defense has the burden of proving this defense by a preponderance of the evidence.

      89

      History: 1987 a. 332; 1999 a. 3; 2001 a. 16, 109; 2005 a. 433.

      90

      "Import" under sub. (1) (c) means bringing in from an external source and does not require a commercial element or exempt personal use. State v. Bruckner, 151 Wis. 2d 833, 447 N.W.2d 376 (Ct. App. 1989).

      91

      The purposes of ss. 948.05, child exploitation, and 948.07, child enticement, are distinct, and two distinct crimes are envisioned by the statutes. Charging both for the same act was not multiplicitous. State v. DeRango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, 98-0642.

      92
      948.051 Trafficking of a child.
      93

      (1) Whoever knowingly recruits, entices, provides, obtains, or harbors, or knowingly attempts to recruit, entice, provide, obtain, or harbor, any child for the purpose of commercial sex acts, as defined in s. 940.302 (1) (a), or sexually explicit performance is guilty of a Class C felony.

      94

      (2) Whoever benefits in any manner from a violation of sub. (1) is guilty of a Class C felony if the person knows that the benefits come from an act described in sub. (1).

      95

      (3) Any person who incurs an injury or death as a result of a violation of sub. (1) or (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.

      96

      History: 2007 a. 116.

      97
      948.055 Causing a child to view or listen to sexual activity.
      98

      (1) Whoever intentionally causes a child who has not attained 18 years of age, or an individual who the actor believes or has reason to believe has not attained 18 years of age, to view or listen to sexually explicit conduct may be penalized as provided in sub. (2) if the viewing or listening is for the purpose of sexually arousing or gratifying the actor or humiliating or degrading the child or individual.

      99

      (2) Whoever violates sub. (1) is guilty of:

      100

      (a) A Class F felony if any of the following applies:

      101

      1. The child has not attained the age of 13 years.

      2. The actor believes or has reason to believe that the child has not attained the age of 13 years.

      102

      (b) A Class H felony if any of the following applies:

      103

      1. The child has attained the age of 13 years but has not attained the age of 18 years.

      2. The actor believes or has reason to believe that the child has attained the age of 13 years but has not attained the age of 18 years.

      104

      History: 1987 a. 334; 1989 a. 359; 1993 a. 218 ss. 6, 7; Stats. 1993 s. 948.055; 1995 a. 67; 2001 a. 109; 2011 a. 284.

      105
      948.06 Incest with a child.
      106

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

      107

      (1) Marries or has sexual intercourse or sexual contact with a child he or she knows is related, either by blood or adoption, and the child is related in a degree of kinship closer than 2nd cousin.

      (1m) Has sexual contact or sexual intercourse with a child if the actor is the child's stepparent.

      (2) Is a person responsible for the child's welfare and:

      (a) Has knowledge that another person who is related to the child by blood or adoption in a degree of kinship closer than 2nd cousin or who is a child's stepparent has had or intends to have sexual intercourse or sexual contact with the child;

      (b) Is physically and emotionally capable of taking action that will prevent the intercourse or contact from occurring or being repeated;

      (c) Fails to take that action; and

      (d) 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.

      108

      History: 1987 a. 332; 1995 a. 69; 2001 a. 109; 2005 a. 277.

      109
      948.07 Child enticement.
      110

      Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class D felony:

      111

      (1) Having sexual contact or sexual intercourse with the child in violation of s. 948.02, 948.085, or 948.095.

      (2) Causing the child to engage in prostitution.

      (3) Exposing a sex organ to the child or causing the child to expose a sex organ in violation of s. 948.10.

      (4) Recording the child engaging in sexually explicit conduct.

      (5) Causing bodily or mental harm to the child.

      (6) Giving or selling to the child a controlled substance or controlled substance analog in violation of ch. 961.

      112

      History: 1987 a. 332; 1995 a. 67, 69, 448, 456; 2001 a. 16, 109; 2005 a. 277.

      113

      The penalty scheme of sub. (3) is not unconstitutionally irrational. That the statute, unlike sub. (1), did not distinguish between victims 16 years old or older and other children victims is a matter for the legislature. State v. Hanson, 182 Wis. 2d 481, 513 N.W.2d 700 (Ct. App. 1994).

      114

      This section includes the attempted crime, as well as the completed crime, and cannot be combined with the general attempt statute. State v. DeRango, 229 Wis. 2d 1, 599 N.W.2d 27 (Ct. App. 1999), 98-0642.

      115

      The purposes of ss. 948.05, child exploitation, and 948.07, child enticement, are distinct, and two distinct crimes are envisioned by the statutes. Charging both for the same act was not multiplicitous. State v. DeRango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, 98-0642.

      116

      This section creates one crime with multiple modes of commission. The alternate modes of commission are not so dissimilar as to implicate fundamental fairness. As such, a defendant is not entitled to a unanimity instruction. State v. DeRango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, 98-0642.

      117

      One alternate mode of commission of the crime under this section is attempt to cause a child to go into a vehicle, building, room, or secluded place. The principles of attempt in s. 939.32 apply. That the intended victims were fictitious constituted an extraneous fact beyond the defendant's control that prevented successful enticement while not excusing the attempt to entice. State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359, 00-2684.

      118

      Attempted child enticement may be charged when the intervening extraneous factor that makes the offense an attempted rather than completed crime is that unbeknownst to the defendant, the "victim" is an adult government agent posing as a child. The 1st amendment is not implicated by the application of the child enticement statute to child enticements initiated over the internet as the statute regulates conduct, not speech. State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 647 N.W.2d 287, 00-2841.

      119

      Acts alleged in furtherance of the criminal objective, such as attempts to have a child get into a vehicle or go into a hotel room or a secluded place are not required to prove attempted child enticement. Going to meet the child at a planned time and place is a sufficient, unequivocal act in furtherance of the criminal objective when earlier conversations provide reasonable inferences of that criminal objective. State v. Grimm, 2002 WI App 242, 258 Wis. 2d 166, 653 N.W.2d 284, 01-0138.

      120

      While an attempt cannot lie to an offense that does not carry the element of specific intent and the statutory definition of sexual intercourse does not formally include an intent element, the act of sexual intercourse is necessarily an intentional act. As such, the crime of attempted sexual assault of a child by means of sexual intercourse is a crime. State v. Brienzo, 2003 WI App 203, 267 Wis. 2d 349, 671 N.W.2d 700, 01-1362.

      121

      Like the child enticement statute in Robins, the child sexual assault statute regulates conduct, not speech. An attempt to have sexual contact or sexual intercourse with a child initiated or carried out in part by means of language does not make an attempted child sexual assault charge susceptible of 1st amendment scrutiny. State v. Brienzo, 2003 WI App 203, 267 Wis. 2d 349, 671 N.W.2d 700.

      122

      This section requires only that the defendant cause the child to go into any vehicle, building, room, or secluded place with the intent to engage in illicit conduct, but not that the child necessarily be first separated from the public. State v. Provo, 2004 WI App 97, 272 Wis. 2d 837, 681 N.W.2d 272, 03-1710.

      123

      "Secluded" in this section is not a technical term. In the context of child enticement, a secluded place would include any place that provides the enticer an opportunity to remove the child from within the general public's view to a location where any intended sexual conduct is less likely to be detected by the public. A place need not even be screened or hidden or remote if some other aspect of the place lowers the likelihood of detection. All the statute requires is that the place provides a means by which to exclude the child and reduce the risk of detection. State v. Pask, 2010 WI App 53, 324 Wis. 2d 555, 781 N.W.2d 751, 09-0559.

      124
      948.075 Use of a computer to facilitate a child sex crime.
      125

      (1r) Whoever uses a computerized communication system to communicate with an individual who the actor believes or has reason to believe has not attained the age of 16 years with intent to have sexual contact or sexual intercourse with the individual in violation of s. 948.02 (1) or (2) is guilty of a Class C felony.

      126

      (2) This section does not apply if, at the time of the communication, the actor reasonably believed that the age of the person to whom the communication was sent was no more than 24 months less than the age of the actor.

      127

      (3) Proof that the actor did an act, other than use a computerized communication system to communicate with the individual, to effect the actor's intent under sub. (1r) shall be necessary to prove that intent.

      128

      History: 2001 a. 109; 2003 a. 321; 2005 a. 433; 2007 a. 96.

      129

      Defendant's admission to driving to the alleged victim's neighborhood for an innocent purpose combined with computer communications, in which the defendant told the alleged victim that he drove through her neighborhood for the specific purpose of meeting her, and his confession to the police that he went to the area so he could "get her interested in chatting with him again," showed that the non-computer-assisted act of driving through the area was to effect his intent to have sex with the alleged victim and satisfied the requirement in sub. (3). State v. Schulpius, 2006 WI App 263, 298 Wis. 2d 155, 726 N.W.2d 706, 06-0283.

      130

      Defendant's use of a webcam to transmit video of himself was, under the circumstances of this case, nothing more than the use of his computer to communicate and thus not an act "other than us[ing] a computerized communication system to communicate" as required under sub. (3). State v. Olson, 2008 WI App 171, 314 Wis. 2d 630, 762 N.W.2d 393, 08-0587.

      131
      948.08 Soliciting a child for prostitution.
      132

      Whoever intentionally solicits or causes any child to engage in an act of prostitution or establishes any child in a place of prostitution is guilty of a Class D felony.

      133

      History: 1987 a. 332; 1995 a. 69; 2001 a. 109; 2007 a. 80.

      134

      Although colloquially referred to as prohibiting solicitation, this section also specifically, and alternatively, prohibits causing a child to practice prostitution. Cause is a substantial factor that need not be the first or sole cause of a child practicing prostitution. The habitual nature of the defendant's trading cocaine for sex with the child victim satisfied the requisite that the victim did "practice prostitution" with the defendant. State v. Payette, 2008 WI App 106, 313 Wis. 2d 39, 756 N.W.2d 423, 07-1192.

      135
      948.085 Sexual assault of a child placed in substitute care.
      136

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

      137

      (1) Has sexual contact or sexual intercourse with a child for whom the actor is a foster parent.

      (2) Has sexual contact or sexual intercourse with a child who is placed in any of the following facilities if the actor works or volunteers at the facility or is directly or indirectly responsible for managing it:

      (a) A shelter care facility licensed under s. 48.66 (1) (a).

      (b) A group home licensed under s. 48.625 or 48.66 (1).

      (c) A facility described in s. 940.295 (2) (m).

      138

      History: 2005 a. 277; 2007 a. 97; 2009 a. 28.

      139
      948.09 Sexual intercourse with a child age 16 or older.
      140

      Whoever has sexual intercourse with a child who is not the defendant's spouse and who has attained the age of 16 years is guilty of a Class A misdemeanor.

      141

      History: 1987 a. 332.

      142
      948.095 Sexual assault of a child by a school staff person or a person who works or volunteers with children.
      143

      (1) In this section:

      144

      (a) "School" means a public or private elementary or secondary school, or a tribal school, as defined in s. 115.001 (15m).

      (b) "School staff" means any person who provides services to a school or a school board, including an employee of a school or a school board and a person who provides services to a school or a school board under a contract.

      145

      (2) Whoever has sexual contact or sexual intercourse with a child who has attained the age of 16 years and who is not the defendant's spouse is guilty of a Class H felony if all of the following apply:

      146

      (a) The child is enrolled as a student in a school or a school district.

      (b) The defendant is a member of the school staff of the school or school district in which the child is enrolled as a student.

      147

      (3) 

      148

      (a) A person who has attained the age of 21 years and who engages in an occupation or participates in a volunteer position that requires him or her to work or interact directly with children may not have sexual contact or sexual intercourse with a child who has attained the age of 16 years, who is not the person's spouse, and with whom the person works or interacts through that occupation or volunteer position.

      149

      (b) Whoever violates par. (a) is guilty of a Class H felony.

      150

      (c) Paragraph (a) does not apply to an offense to which sub. (2) applies.

      151

      (d) Evidence that a person engages in an occupation or participates in a volunteer position relating to any of the following is prima facie evidence that the occupation or position requires him or her to work or interact directly with children:

      152

      1. Teaching children.

      2. Child care.

      3. Youth counseling.

      4. Youth organization.

      5. Coaching children.

      6. Parks or playground recreation.

      7. School bus driving.

      153

      History: 1995 a. 456; 2001 a. 109; 2005 a. 274; 2007 a. 97; 2009 a. 302.

      154

      An "employee" and persons "under contract" are examples of persons included within the group of people that provide services to a school or school board within the definition of school staff under sub. (1) (b). These phrases are illustrative, and do not limit the definition of "a person who provides services." State v. Kaster, 2003 WI App 105, 264 Wis. 2d 751, 663 N.W.2d. 390, 02-2352 and 2006 WI App 72, 292 Wis. 2d 252, 714 N.W.2d 238, 05-1285.

      155
      948.10 Exposing genitals or pubic area.
      156

      (1) Whoever, for purposes of sexual arousal or sexual gratification, causes a child to expose genitals or pubic area or exposes genitals or pubic area to a child is guilty of the following:

      157

      (a) Except as provided in par. (b), a Class I felony.

      (b) A Class A misdemeanor if any of the following applies:

      1. The actor is a child when the violation occurs.

      2. At the time of the violation, the actor had not attained the age of 19 years and was not more than 4 years older than the child.

      158

      (2) Subsection (1) does not apply under any of the following circumstances:

      159

      (a) The child is the defendant's spouse.

      (b) A mother's breast-feeding of her child.

      160

      History: 1987 a. 332; 1989 a. 31; 1995 a. 165; 2009 a. 202.

      161
      948.11 Exposing a child to harmful material or harmful descriptions or narrations.
      162

      (1)  Definitions. In this section:

      163

      (ag) "Harmful description or narrative account" means any explicit and detailed description or narrative account of sexual excitement, sexually explicit conduct, sadomasochistic abuse, physical torture or brutality that, taken as a whole, is harmful to children.

      (ar) "Harmful material" means:

      1. Any picture, photograph, drawing, sculpture, motion picture film or similar visual representation or image of a person or portion of the human body that depicts nudity, sexually explicit conduct, sadomasochistic abuse, physical torture or brutality and that is harmful to children; or

      2. Any book, pamphlet, magazine, printed matter however reproduced or recording that contains any matter enumerated in subd. 1., or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexually explicit conduct, sadomasochistic abuse, physical torture or brutality and that, taken as a whole, is harmful to children.

      (b) "Harmful to children" means that quality of any description, narrative account or representation, in whatever form, of nudity, sexually explicit conduct, sexual excitement, sadomasochistic abuse, physical torture or brutality, when it:

      1. Predominantly appeals to the prurient, shameful or morbid interest of children;

      2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for children; and

      3. Lacks serious literary, artistic, political, scientific or educational value for children, when taken as a whole.

      (d) "Nudity" means the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.

      (e) "Person" means any individual, partnership, firm, association, corporation or other legal entity.

      (f) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

      164

      (2) Criminal penalties.

      165

      (a) Whoever, with knowledge of the character and content of the material, sells, rents, exhibits, plays, distributes, or loans to a child any harmful material, with or without monetary consideration, is guilty of a Class I felony if any of the following applies:

      166

      1. The person knows or reasonably should know that the child has not attained the age of 18 years.

      2. The person has face-to-face contact with the child before or during the sale, rental, exhibit, playing, distribution, or loan.

      167

      (am) Any person who has attained the age of 17 and who, with knowledge of the character and content of the description or narrative account, verbally communicates, by any means, a harmful description or narrative account to a child, with or without monetary consideration, is guilty of a Class I felony if any of the following applies:

      168

      1. The person knows or reasonably should know that the child has not attained the age of 18 years.

      2. The person has face-to-face contact with the child before or during the communication.

      169

      (b) Whoever, with knowledge of the character and content of the material, possesses harmful material with the intent to sell, rent, exhibit, play, distribute, or loan the material to a child is guilty of a Class A misdemeanor if any of the following applies:

      170

      1. The person knows or reasonably should know that the child has not attained the age of 18 years.

      2. The person has face-to-face contact with the child.

      171

      (c) It is an affirmative defense to a prosecution for a violation of pars. (a) 2., (am) 2., and (b) 2. if the defendant had reasonable cause to believe that the child had attained the age of 18 years, and the child exhibited to the defendant a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that the child had attained the age of 18 years. A defendant who raises this affirmative defense has the burden of proving this defense by a preponderance of the evidence.

      172

      (3) Extradition. If any person is convicted under sub. (2) and cannot be found in this state, the governor or any person performing the functions of governor by authority of the law shall, unless the convicted person has appealed from the judgment of contempt or conviction and the appeal has not been finally determined, demand his or her extradition from the executive authority of the state in which the person is found.

      173

      (4) Libraries and educational institutions.

      174

      (a) The legislature finds that the libraries and educational institutions under par. (b) carry out the essential purpose of making available to all citizens a current, balanced collection of books, reference materials, periodicals, sound recordings and audiovisual materials that reflect the cultural diversity and pluralistic nature of American society. The legislature further finds that it is in the interest of the state to protect the financial resources of libraries and educational institutions from being expended in litigation and to permit these resources to be used to the greatest extent possible for fulfilling the essential purpose of libraries and educational institutions.

      175

      (b) No person who is an employee, a member of the board of directors or a trustee of any of the following is liable to prosecution for violation of this section for acts or omissions while in his or her capacity as an employee, a member of the board of directors or a trustee:

      176

      1. A public elementary or secondary school.

      2. A private school, as defined in s. 115.001 (3r), or a tribal school, as defined in s. 115.001 (15m).

      3. Any school offering vocational, technical or adult education that:

      a. Is a technical college, is a school approved by the educational approval board under s. 38.50, or is a school described in s. 38.50 (1) (e) 6., 7. or 8.; and

      b. Is exempt from taxation under section 501 (c) (3) of the internal revenue code, as defined in s. 71.01 (6).

      4. Any institution of higher education that is accredited, as described in s. 39.30 (1) (d), and is exempt from taxation under section 501 (c) (3) of the internal revenue code, as defined in s. 71.01 (6).

      5. A library that receives funding from any unit of government.

      177

      (5) Severability. The provisions of this section, including the provisions of sub. (4), are severable, as provided in s. 990.001 (11).

      178

      History: 1987 a. 332; 1989 a. 31; 1993 a. 220, 399; 1995 a. 27 s. 9154 (1); 1997 a. 27, 82; 1999 a. 9; 2001 a. 16, 104, 109; 2005 a. 22, 25, 254; 2009 a. 302.

      179

      This section is not unconstitutionally overbroad. The exemption from prosecution of libraries, educational institutions, and their employees and directors does not violate equal protection rights. State v. Thiel, 183 Wis. 2d 505, 515 N.W.2d 847 (1994).

      180

      The lack of a requirement in sub. (2) (a) that the defendant know the age of the child exposed to the harmful material does not render the statute unconstitutional on its face. State v. Kevin L.C. 216 Wis. 2d 166, 576 N.W.2d 62 (Ct. App. 1997), 97-1087.

      181

      An individual violates this section if he or she, aware of the nature of the material, knowingly offers or presents for inspection to a specific minor material defined as harmful to children in sub. (1) (b). The personal contact between the perpetrator and the child-victim is what allows the state to impose on the defendant the risk that the victim is a minor. State v. Trochinski, 2002 WI 56, 253 Wis. 2d 38, 644 N.W.2d 891, 00-2545.

      182

      Evidence was not insufficient to sustain the jury's verdict solely because the jury did not view the video alleged to be "harmful material," but instead heard only the children victim's and a detective's descriptions of what they saw. State v. Booker, 2006 WI 79, 292 Wis. 2d 43, 717 N.W.2d 676, 04-1435.

      183

      "Verbally" in sub. (2) (am) is most reasonably read as proscribing communication to children of harmful matter in words, whether oral or written, and to distinguish sub. (2) (am) from sub. (2) (a), which primarily proscribes visual representations. State v. Ebersold, 2007 WI App 232, 306 Wis. 2d 371, 742 N.W.2d 876, 06-0833.

      184

      When the jury was instructed that the state had to prove only that the defendant exhibited harmful material to the child and the instruction did not include the word "knowing" or "intentional," in light of the instructions in the case and reviewing the proceedings as a whole, there was a reasonable likelihood that the jury was confused and misled about the need for the state to prove an element of the crime. State v. Gonzalez, 2011 WI 63, 335 Wis. 2d 270, 802 N.W.2d 454, 09-1249.

      185
      948.12 Possession of child pornography.
      186

      (1m) Whoever possesses, or accesses in any way with the intent to view, any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct under all of the following circumstances may be penalized under sub. (3):

      187

      (a) The person knows that he or she possesses or has accessed the material.

      188

      (b) The person knows, or reasonably should know, that the material that is possessed or accessed contains depictions of sexually explicit conduct.

      189

      (c) The person knows or reasonably should know that the child depicted in the material who is engaged in sexually explicit conduct has not attained the age of 18 years.

      190

      (2m) Whoever exhibits or plays a recording of a child engaged in sexually explicit conduct, if all of the following apply, may be penalized under sub. (3):

      191

      (a) The person knows that he or she has exhibited or played the recording.

      (b) Before the person exhibited or played the recording, he or she knew the character and content of the sexually explicit conduct.

      (c) Before the person exhibited or played the recording, he or she knew or reasonably should have known that the child engaged in sexually explicit conduct had not attained the age of 18 years.

      192

      (3) 

      193

      (a) Except as provided in par. (b), a person who violates sub. (1m) or (2m) is guilty of a Class D felony.

      194

      (b) A person who violates sub. (1m) or (2m) is guilty of a Class I felony if the person is under 18 years of age when the offense occurs.

      195

      History: 1987 a. 332; 1995 a. 67; 2001 a. 16, 109; 2005 a. 433; 2011 a. 271.

      196

      A violation of this section must be based on the content of the photograph and how it was produced. Evidence of the location and manner of storing the photo are not properly considered. State v. A. H. 211 Wis. 2d 561, 566 N.W.2d 858 (Ct. App. 1997), 96-2311.

      197

      For purposes of multiplicity analysis, each image possessed can be prosecuted separately. Prosecution is not based upon the medium of reproduction. Multiple punishment is appropriate for a defendant who compiled and stored multiple images over time. State v. Multaler, 2002 WI 35, 252 Wis. 2d 54, 643 N.W.2d 437, 00-1846.

      198

      Criminalizing child pornography presents the risk of self-censorship of constitutionally protected material. Criminal responsibility may not be imposed without some element of scienter, the degree of knowledge that makes a person legally responsible for the consequences of his or her act or omission. In this section, "reasonably should know" is less than actual knowledge but still requires more than the standard used in civil negligence actions, which is constitutionally sufficient. State v. Schaefer, 2003 WI App 164, 266 Wis. 2d 719, 668 N.W.2d 760, 01-2691.

      199

      There was sufficient evidence in the record to demonstrate that the defendant knowingly possessed the child pornography images on his computer because he repeatedly visited child pornography Web sites, clicked on thumbnail images to create larger pictures for viewing, accessed five images twice, and saved at least one image to his personal folder. State v. Lindgren, 2004 WI App 159, 275 Wis. 2d 851, 687 N.W.2d 60, 03-1868.

      200

      Sub. (1m) forbids only depictions of real children engaged in sexually explicit activity. Sub. (1m) (c) specifies that to be convicted under the statute, the person possessing the pornography must know or have reason to know that the child engaged in sexually explicit conduct has not attained the age of 18 years. This element does not speak of depictions at all, but rather of a child who has not attained the age of 18 years. State v. Van Buren, 2008 WI App 26, 307 Wis. 2d 447, 746 N.W.2d 545, 06-3025.

      201

      Sub. (1m) criminalizes the knowing possession of any photograph of a child engaging in sexually explicit conduct. Expert testimony or other evidence to establish the reality of apparently real photographs is not required. When there has been no evidence adduced that the photographs are anything other than what they appear to be, the photographs themselves are sufficient evidence of the reality of what they depict. State v. Van Buren, 2008 WI App 26, 307 Wis. 2d 447, 746 N.W.2d 545, 06-3025.

      202

      Individuals who purposely view digital images of child pornography on the Internet, even though the images are not found in the person's computer hard drive, nonetheless knowingly possess those images in violation of sub. (1m). An individual knowingly possesses child pornography when he or she affirmatively pulls up images of child pornography on the Internet and views those images knowing that they contain child pornography. Whether the proof is hard drive evidence or something else should not matter. State v. Mercer, 2010 WI App 47, 324 Wis. 2d 506, 782 N.W.2d 125, 08-1763.

      203
      948.13 Child sex offender working with children.
      204

      (1) In this section, "serious child sex offense" means any of the following:

      205

      (a) A crime under s. 940.22 (2) or 940.225 (2) (c) or (cm), if the victim is under 18 years of age at the time of the offense, a crime under s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies, or a crime under s. 948.02 (1) or (2), 948.025 (1), 948.05 (1) or (1m), 948.051, 948.06, 948.07 (1), (2), (3), or (4), 948.075, or 948.085.

      (b) A crime under federal law or the law of any other state or, prior to May 7, 1996, under the law of this state that is comparable to a crime specified in par. (a).

      206

      (2) 

      207

      (a) Except as provided in pars. (b) and (c), whoever has been convicted of a serious child sex offense and subsequently engages in an occupation or participates in a volunteer position that requires him or her to work or interact primarily and directly with children under 16 years of age is guilty of a Class F felony.

      208

      (b) If all of the following apply, the prohibition under par. (a) does not apply to a person who has been convicted of a serious child sex offense until 90 days after the date on which the person receives actual written notice from a law enforcement agency, as defined in s. 165.77 (1) (b), of the prohibition under par. (a):

      209

      1. The only serious child sex offense for which the person has been convicted is a crime under s. 948.02 (2).

      2. The person was convicted of the serious child sex offense before May 7, 2002.

      3. The person is eligible to petition for an exemption from the prohibition under sub. (2m) because he or she meets the criteria specified in sub. (2m) (a) 1. and 1m.

      210

      (c) The prohibition under par. (a) does not apply to a person who is exempt under a court order issued under sub. (2m).

      211

      (2m) 

      212

      (a) A person who has been convicted of a crime under s. 948.02 (2), 948.025 (1), or 948.085 may petition the court in which he or she was convicted to order that the person be exempt from sub. (2) (a) and permitted to engage in an occupation or participate in a volunteer position that requires the person to work or interact primarily and directly with children under 16 years of age. The court may grant a petition filed under this paragraph if the court finds that all of the following apply:

      213

      1. At the time of the commission of the crime under s. 948.02 (2), 948.025 (1), or 948.085 the person had not attained the age of 19 years and was not more than 4 years older or not more than 4 years younger than the child with whom the person had sexual contact or sexual intercourse.

      1m. The child with whom the person had sexual contact or sexual intercourse had attained the age of 13 but had not attained the age of 16.

      2. It is not necessary, in the interest of public protection, to require the person to comply with sub. (2) (a).

      214

      (b) A person filing a petition under par. (a) shall send a copy of the petition to the district attorney who prosecuted the person. The district attorney shall make a reasonable attempt to contact the victim of the crime that is the subject of the person's petition to inform the victim of his or her right to make or provide a statement under par. (d).

      215

      (c) A court may hold a hearing on a petition filed under par. (a) and the district attorney who prosecuted the person may appear at the hearing. Any hearing that a court decides to hold under this paragraph shall be held no later than 30 days after the petition is filed if the petition specifies that the person filing the petition is covered under sub. (2) (b), that he or she has received actual written notice from a law enforcement agency of the prohibition under sub. (2) (a), and that he or she is seeking an exemption under this subsection before the expiration of the 90-day period under sub. (2) (b).

      216

      (d) Before deciding a petition filed under par. (a), the court shall allow the victim of the crime that is the subject of the petition to make a statement in court at any hearing held on the petition or to submit a written statement to the court. A statement under this paragraph must be relevant to the issues specified in par. (a) 1., 1m. and 2.

      217

      (e)

      218

      1. Before deciding a petition filed under par. (a), the court may request the person filing the petition to be examined by a physician, psychologist or other expert approved by the court. If the person refuses to undergo an examination requested by the court under this subdivision, the court shall deny the person's petition without prejudice.

      219

      2. If a person is examined by a physician, psychologist or other expert under subd. 1., the physician, psychologist or other expert shall file a report of his or her examination with the court, and the court shall provide copies of the report to the person and, if he or she requests a copy, to the district attorney. The contents of the report shall be confidential until the physician, psychologist or other expert has testified at a hearing held under par. (c). The report shall contain an opinion regarding whether it would be in the interest of public protection to require the person to comply with sub. (2) (a) and the basis for that opinion.

      220

      3. A person who is examined by a physician, psychologist or other expert under subd. 1. is responsible for paying the cost of the services provided by the physician, psychologist or other expert, except that if the person is indigent the cost of the services provided by the physician, psychologist or other expert shall be paid by the county. If the person claims or appears to be indigent, the court shall refer the person to the authority for indigency determinations under s. 977.07 (1), except that the person shall be considered indigent without another determination under s. 977.07 (1) if the person is represented by the state public defender or by a private attorney appointed under s. 977.08.

      221

      (em) A court shall decide a petition no later than 45 days after the petition is filed if the petition specifies that the person filing the petition is covered under sub. (2) (b), that he or she has received actual written notice from a law enforcement agency of the prohibition under sub. (2) (a), and that he or she is seeking an exemption under this subsection before the expiration of the 90-day period under sub. (2) (b).

      222

      (f) The person who filed the petition under par. (a) has the burden of proving by clear and convincing evidence that he or she satisfies the criteria specified in par. (a) 1., 1m. and 2. In deciding whether the person has satisfied the criterion specified in par. (a) 2., the court may consider any of the following:

      223

      1. The ages, at the time of the violation, of the person who filed the petition and the victim of the crime that is the subject of the petition.

      2. The relationship between the person who filed the petition and the victim of the crime that is the subject of the petition.

      3. Whether the crime that is the subject of the petition resulted in bodily harm to the victim.

      4. Whether the victim of the crime that is the subject of the petition suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.

      5. The probability that the person who filed the petition will commit other serious child sex offenses in the future.

      6. The report of the examination conducted under par. (e).

      7. Any other factor that the court determines may be relevant to the particular case.

      224

      (3) Evidence that a person engages in an occupation or participates in a volunteer position relating to any of the following is prima facie evidence that the occupation or position requires him or her to work or interact primarily and directly with children under 16 years of age:

      225

      (a) Teaching children.

      (b) Child care.

      (c) Youth counseling.

      (d) Youth organization.

      (e) Coaching children.

      (f) Parks or playground recreation.

      (g) School bus driving.

      226

      History: 1995 a. 265; 1997 a. 130, 220; 1999 a. 3; 2001 a. 97, 109; 2003 a. 321; 2005 a. 277; 2007 a. 97, 116.

      227
      948.14 Registered sex offender and photographing minors.
      228

      (1)  Definitions. In this section:

      229

      (a) "Captures a representation" has the meaning given in s. 942.09 (1) (a).

      (b) "Minor" means an individual who is under 17 years of age.

      (c) "Representation" has the meaning giving in s. 942.09 (1) (c).

      (d) "Sex offender" means a person who is required to register under s. 301.45.

      230

      (2) Prohibition.

      231

      (a) A sex offender may not intentionally capture a representation of any minor without the written consent of the minor's parent, legal custodian, or guardian. The written consent required under this paragraph shall state that the person seeking the consent is required to register as a sex offender with the department of corrections.

      232

      (b) Paragraph (a) does not apply to a sex offender who is capturing a representation of a minor if the sex offender is the minor's parent, legal custodian, or guardian.

      233

      (3) Penalty. Whoever violates sub. (2) is guilty of a Class I felony.

      234

      History: 2005 a. 432.

      235
      948.20 Abandonment of a child.
      236

      Whoever, with intent to abandon the child, leaves any child in a place where the child may suffer because of neglect is guilty of a Class G felony.

      237

      History: 1977 c. 173; 1987 a. 332 s. 35; Stats. 1987 s. 948.20; 2001 a. 109.

      238
      948.21 Neglecting a child.
      239

      (1) Any person who is responsible for a child's welfare who, through his or her actions or failure to take action, intentionally contributes to the neglect of the child is guilty of one of the following:

      240

      (a) A Class A misdemeanor.

      241

      (b) A Class H felony if bodily harm is a consequence.

      242

      (c) A Class F felony if great bodily harm is a consequence.

      243

      (d) A Class D felony if death is a consequence.

      244

      (2) Under sub. (1), a person responsible for the child's welfare contributes to the neglect of the child although the child does not actually become neglected if the natural and probable consequences of the person's actions or failure to take action would be to cause the child to become neglected.

      245

      History: 1987 a. 332; 2001 a. 109; 2007 a. 80.

      246
      948.22 Failure to support.
      247

      (1) In this section:

      248

      (a) "Child support" means an amount which a person is ordered to provide for support of a child by a court of competent jurisdiction in this state or in another state, territory or possession of the United States, or, if not ordered, an amount that a person is legally obligated to provide under s. 49.90.

      (b) "Grandchild support" means an amount which a person is legally obligated to provide under s. 49.90 (1) (a) 2. and (11).

      (c) "Spousal support" means an amount which a person is ordered to provide for support of a spouse or former spouse by a court of competent jurisdiction in this state or in another state, territory or possession of the United States, or, if not ordered, an amount that a person is legally obligated to provide under s. 49.90.

      249

      (2) Any person who intentionally fails for 120 or more consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class I felony. A prosecutor may charge a person with multiple counts for a violation under this subsection if each count covers a period of at least 120 consecutive days and there is no overlap between periods.

      250

      (3) Any person who intentionally fails for less than 120 consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class A misdemeanor.

      251

      (4) Under this section, the following is prima facie evidence of intentional failure to provide child, grandchild or spousal support:

      252

      (a) For a person subject to a court order requiring child, grandchild or spousal support payments, when the person knows or reasonably should have known that he or she is required to pay support under an order, failure to pay the child, grandchild or spousal support payment required under the order.

      (b) For a person not subject to a court order requiring child, grandchild or spousal support payments, when the person knows or reasonably should have known that he or she has a dependent, failure to provide support equal to at least the amount established by rule by the department of children and families under s. 49.22 (9) or causing a spouse, grandchild or child to become a dependent person, or continue to be a dependent person, as defined in s. 49.01 (2).

      253

      (5) Under this section, it is not a defense that child, grandchild or spousal support is provided wholly or partially by any other person or entity.

      254

      (6) Under this section, affirmative defenses include but are not limited to inability to provide child, grandchild or spousal support. A person may not demonstrate inability to provide child, grandchild or spousal support if the person is employable but, without reasonable excuse, either fails to diligently seek employment, terminates employment or reduces his or her earnings or assets. A person who raises an affirmative defense has the burden of proving the defense by a preponderance of the evidence.

      255

      (7) 

      256

      (a) Before trial, upon petition by the complainant and notice to the defendant, the court may enter a temporary order requiring payment of child, grandchild or spousal support.

      257

      (b) In addition to or instead of imposing a penalty authorized for a Class I felony or a Class A misdemeanor, whichever is appropriate, the court shall:

      258

      1. If a court order requiring the defendant to pay child, grandchild or spousal support exists, order the defendant to pay the amount required including any amount necessary to meet a past legal obligation for support.

      2. If no court order described under subd. 1. exists, enter such an order. For orders for child or spousal support, the court shall determine the amount of support in the manner required under s. 767.511 or 767.89, regardless of the fact that the action is not one for a determination of paternity or an action specified in s. 767.511 (1).

      259

      (bm) Upon request, the court may modify the amount of child or spousal support payments determined under par. (b) 2. if, after considering the factors listed in s. 767.511 (1m), regardless of the fact that the action is not one for a determination of paternity or an action specified in s. 767.511 (1), the court finds, by the greater weight of the credible evidence, that the use of the percentage standard is unfair to the child or to either of the child's parents.

      260

      (c) An order under par. (a) or (b), other than an order for grandchild support, constitutes an income assignment under s. 767.75 and may be enforced under s. 767.77. Any payment ordered under par. (a) or (b), other than a payment for grandchild support, shall be made in the manner provided under s. 767.57.

      261

      History: 1985 a. 29, 56; 1987 a. 332 s. 33; Stats. 1987 s. 948.22; 1989 a. 31, 212; 1993 a. 274, 481; 1995 a. 289; 1997 a. 35, 191, 252; 1999 a. 9; 2001 a. 109; 2003 a. 321; 2005 a. 443 s. 265; 2007 a. 20.

      262

      Under s. 940.27 (2) [now 948.22 (2], the state must prove that the defendant had an obligation to provide support and failed to do so for 120 days. The state need not prove that the defendant was required to pay a specific amount. Sub. (6) does not unconstitutionally shift the burden of proof. State v. Duprey, 149 Wis. 2d 655, 439 N.W.2d 837 (Ct. App. 1989).

      263

      Multiple prosecutions for a continuous failure to pay child support are allowed. State v. Grayson, 172 Wis. 2d 156, 493 N.W.2d 23 (1992).

      264

      Jurisdiction in a criminal nonsupport action under s. 948.22 does not require that the child to be supported be a resident of Wisconsin during the charged period. State v. Gantt, 201 Wis. 2d 206, 548 N.W.2d 134 (Ct. App. 1996), 95-2469.

      265

      Evidence of incarceration to prove inability to pay is not excluded under sub. (6), and there was no basis to find the evidence irrelevant. State v. Stutesman, 221 Wis. 2d 178, 585 N.W.2d 181 (Ct. App. 1998), 97-2991.

      266

      This section does not distinguish between support and arrearages. It criminalizes failure to pay arrearages even after the child for whom support is ordered attains majority. Incarceration for violation of this section is not unconstitutional imprisonment for a debt. State v. Lenz, 230 Wis. 2d 529, 602 N.W.2d 172 (Ct. App. 1999), 99-0860.

      267

      If nonsupport is charged as a continuing offense, the statute of limitations runs from the last date the defendant intentionally fails to provide support. If charges are brought for each 120 day period that a person does not pay, the statute of limitations bars charging for those 120 periods that are more than 6 years old. The running of the statute of limitations does not prevent inclusion of all unpaid amounts in a later arrearage order. State v. Monarch, 230 Wis. 2d 542, 602 N.W.2d 179 (Ct. App. 1999), 99-1054.

      268

      A father, who intentionally refused to pay child support could, as a condition of probation, be required to avoid having another child unless he showed that he could support that child and his current children. In light of the defendant's ongoing victimization of his children and record manifesting his disregard for the law, the condition was not overly broad and was reasonably related to the defendant's rehabilitation. State v. Oakley, 2001 WI 103, 245 Wis. 2d 447, 629 N.W.2d 200, 99-3328.

      269

      Whether a court of competent jurisdiction ordered a defendant to pay child support is not an element of failure to pay child support. A question in that regard need not be submitted to the jury. Because the defendant father did not identify a historical fact inconsistent with an incident of the Maine court's jurisdiction, whether a court of competent jurisdiction ordered him to pay child support was a purely legal question for the court to determine. State v. Smith, 2005 WI 104, 283 Wis. 2d 57, 699 N.W.2d 508, 03-1698.

      270
      948.23 Concealing or not reporting death of a child; not reporting disappearance of a child.
      271

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

      272

      (a) Conceals the corpse of any issue of a woman's body with intent to prevent a determination of whether it was born dead or alive.

      (b) Unless a physician or an authority of a hospital, sanatorium, public or private institution, convalescent home, or any institution of a like nature is required to report the death under s. 979.01 (1) or unless a report conflicts with religious tenets or practices, fails to report to law enforcement the death of a child immediately after discovering the death, or as soon as practically possible if immediate reporting is impossible, if the actor is the parent, stepparent, guardian, or legal custodian of the child and if any of the following applies:

      1. The death involves unexplained, unusual, or suspicious circumstances.

      2. The death is or appears to be a homicide or a suicide.

      3. The death is due to poisoning.

      4. The death follows an accident, whether the injury is or is not the primary cause of the death.

      273

      (2) Whoever, without authorization under s. 69.18 or other legal authority to move a corpse, hides or buries the corpse of a child is guilty of a Class F felony.

      274

      (3) 

      275

      (ag) In this subsection, "missing" means absent without a reasonable explanation if the absence would raise concern in a reasonable person for the child's well-being.

      276

      (am) Within the period under par. (b), an individual must report to law enforcement a child as missing if the individual is the parent, stepparent, guardian, or legal custodian of the child.

      277

      (b)

      278

      1. The report under par. (am) must be made within 24 hours after the child is discovered to be missing if the child is under 13 years of age when the discovery is made.

      279

      2. The report under par. (am) must be made within 48 hours after the child is discovered to be missing if the child is at least 13 years of age but under 16 years of age when the discovery is made.

      280

      3. The report under par. (am) must be made within 72 hours after the child is discovered to be missing if the child is at least 16 years of age when the discovery is made.

      281

      (c) Whoever violates par. (am) is guilty of the following:

      282

      1. Except as provided in subds. 2. to 4., a Class A misdemeanor.

      2. If the child suffers bodily harm or substantial bodily harm while he or she is missing, a Class H felony.

      3. If the child suffers great bodily harm while he or she is missing, a Class F felony.

      4. If the child dies while he or she is missing or as a result of an injury he or she suffered while missing, a Class D felony.

      283

      History: 1977 c. 173; 1987 a. 332 s. 47; Stats. 1987 s. 948.23; 2001 a. 109; 2011 a. 268; s. 35.17 correction in (3) (c) 4.

      284
      948.24 Unauthorized placement for adoption.
      285

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

      286

      (a) Places or agrees to place his or her child for adoption for anything exceeding the actual cost of the items listed in s. 48.913 (1) (a) to (m) and the payments authorized under s. 48.913 (2).

      (b) For anything of value, solicits, negotiates or arranges the placement of a child for adoption except under s. 48.833.

      (c) In order to receive a child for adoption, gives anything exceeding the actual cost of the legal and other services rendered in connection with the adoption and the items listed in s. 48.913 (1) (a) to (m) and the payments authorized under s. 48.913 (2).

      287

      (2) This section does not apply to placements under s. 48.839.

      288

      History: 1981 c. 81; 1987 a. 332 s. 50; Stats. 1987 s. 948.24; 1989 a. 161; 1997 a. 104; 2001 a. 109.

      289
      948.30 Abduction of another's child; constructive custody.
      290

      (1) Any person who, for any unlawful purpose, does any of the following is guilty of a Class E felony:

      291

      (a) Takes a child who is not his or her own by birth or adoption from the child's home or the custody of his or her parent, guardian or legal custodian.

      (b) Detains a child who is not his or her own by birth or adoption when the child is away from home or the custody of his or her parent, guardian or legal custodian.

      292

      (2) Any person who, for any unlawful purpose, does any of the following is guilty of a Class C felony:

      293

      (a) By force or threat of imminent force, takes a child who is not his or her own by birth or adoption from the child's home or the custody of his or her parent, guardian or legal custodian.

      (b) By force or threat of imminent force, detains a child who is not his or her own by birth or adoption when the child is away from home or the custody of his or her parent, guardian or legal custodian.

      294

      (3) For purposes of subs. (1) (a) and (2) (a), a child is in the custody of his or her parent, guardian or legal custodian if:

      295

      (a) The child is in the actual physical custody of the parent, guardian or legal custodian; or

      (b) The child is not in the actual physical custody of his or her parent, guardian or legal custodian, but the parent, guardian or legal custodian continues to have control of the child.

      296

      History: 1987 a. 332; 2001 a. 109.

      297
      948.31 Interference with custody by parent or others.
      298

      (1) 

      299

      (a) In this subsection, "legal custodian of a child" means:

      300

      1. A parent or other person having legal custody of the child under an order or judgment in an action for divorce, legal separation, annulment, child custody, paternity, guardianship or habeas corpus.

      2. The department of children and families or the department of corrections or any person, county department under s. 46.215, 46.22, or 46.23, or licensed child welfare agency, if custody or supervision of the child has been transferred under ch. 48 or 938 to that department, person, or agency.

      301

      (b) Except as provided under chs. 48 and 938, whoever intentionally causes a child to leave, takes a child away or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period from a legal custodian with intent to deprive the custodian of his or her custody rights without the consent of the custodian is guilty of a Class F felony. This paragraph is not applicable if the court has entered an order authorizing the person to so take or withhold the child. The fact that joint legal custody has been awarded to both parents by a court does not preclude a court from finding that one parent has committed a violation of this paragraph.

      302

      (2) Whoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child's parents or, in the case of a nonmarital child whose parents do not subsequently intermarry under s. 767.803, from the child's mother or, if he has been granted legal custody, the child's father, without the consent of the parents, the mother or the father with legal custody, is guilty of a Class I felony. This subsection is not applicable if legal custody has been granted by court order to the person taking or withholding the child.

      303

      (3) Any parent, or any person acting pursuant to directions from the parent, who does any of the following is guilty of a Class F felony:

      304

      (a) Intentionally conceals a child from the child's other parent.

      (b) After being served with process in an action affecting the family but prior to the issuance of a temporary or final order determining child custody rights, takes the child or causes the child to leave with intent to deprive the other parent of physical custody as defined in s. 822.02 (14).

      (c) After issuance of a temporary or final order specifying joint legal custody rights and periods of physical placement, takes a child from or causes a child to leave the other parent in violation of the order or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period.

      305

      (4) 

      306

      (a) It is an affirmative defense to prosecution for violation of this section if the action:

      307

      1. Is taken by a parent or by a person authorized by a parent to protect his or her child in a situation in which the parent or authorized person reasonably believes that there is a threat of physical harm or sexual assault to the child;

      2. Is taken by a parent fleeing in a situation in which the parent reasonably believes that there is a threat of physical harm or sexual assault to himself or herself;

      3. Is consented to by the other parent or any other person or agency having legal custody of the child; or

      4. Is otherwise authorized by law.

      308

      (b) A defendant who raises an affirmative defense has the burden of proving the defense by a preponderance of the evidence.

      309

      (5) The venue of an action under this section is prescribed in s. 971.19 (8).

      310

      (6) In addition to any other penalties provided for violation of this section, a court may order a violator to pay restitution, regardless of whether the violator is placed on probation under s. 973.09, to provide reimbursement for any reasonable expenses incurred by any person or any governmental entity in locating and returning the child. Any such amounts paid by the violator shall be paid to the person or governmental entity which incurred the expense on a prorated basis. Upon the application of any interested party, the court shall hold an evidentiary hearing to determine the amount of reasonable expenses.

      311

      History: 1987 a. 332; 1989 a. 31, 56, 107; 1993 a. 302; 1995 a. 27 ss. 7237, 9126 (19); 1995 a. 77; 1997 a. 290; 2001 a. 109; 2005 a. 130; 2005 a. 443 s. 265; 2007 a. 20.

      312

      "Imminent physical harm" under sub. (4) is discussed. State v. McCoy, 143 Wis. 2d 274, 421 N.W.2d 107 (1988).

      313

      When a mother had agreed to the father's taking their child on a camping trip, but the father actually intended to permanently take, and did abscond to Canada with, the child, the child was taken based on the mother's "mistake of fact," which under s. 939.22 (48) rendered the taking of the child "without consent." State v. Inglin, 224 Wis. 2d 764, 592 N.W.2d 666 (Ct. App. 1999), 97-3091.

      314

      In sub. (2), "takes away" a child refers to the defendant removing the child from the parents' possession, which suggests physical manipulation or physical removal. "Causes to leave" in sub. (2) means being responsible for a child abandoning, departing, or leaving the parents, which suggest some sort of mental, rather than physical, manipulation. State v. Samuel, 2001 WI App 25, 240 Wis. 2d 756, 623 N.W.2d 565, 99-2587. Reversed on other grounds, 2002 WI 34, 252 Wis. 2d 26, 643 N.W.2d 423, 99-2587.

      315

      The common law affirmative defense of fraud is not applicable to this section. The circuit court properly prevented the defendant from collaterally attacking the underlying custody order despite his allegations that it was obtained by fraud. State v. Campbell, 2006 WI 99, 294 Wis. 2d 100, 718 N.W.2d 649, 04-0803.

      316

      For a violation of the "withholds a child for more than 12 hours" provision of sub. (2), the state must prove 3 elements: 1) on the date of the alleged offense, the child was under the age of 18 years; 2) the defendant withheld the child for more than 12 hours from the child's parents; and 3) the child's parents did not consent. There is no requirement that the state prove that the defendant had the parents' initial permission to take the child. State v. Ziegler, 2012 WI 73, 342 Wis. 2d 256, 816 N.W.2d 238, 10-2514.

      317
      948.40 Contributing to the delinquency of a child.
      318

      (1) No person may intentionally encourage or contribute to the delinquency of a child. This subsection includes intentionally encouraging or contributing to an act by a child under the age of 10 which would be a delinquent act if committed by a child 10 years of age or older.

      319

      (2) No person responsible for the child's welfare may, by disregard of the welfare of the child, contribute to the delinquency of the child. This subsection includes disregard that contributes to an act by a child under the age of 10 that would be a delinquent act if committed by a child 10 years of age or older.

      320

      (3) Under this section, a person encourages or contributes to the delinquency of a child although the child does not actually become delinquent if the natural and probable consequences of the person's actions or failure to take action would be to cause the child to become delinquent.

      321

      (4) A person who violates this section is guilty of a Class A misdemeanor, except:

      322

      (a) If death is a consequence, the person is guilty of a Class D felony; or

      (b) If the child's act which is encouraged or contributed to is a violation of a state or federal criminal law which is punishable as a felony, the person is guilty of a Class H felony.

      323

      History: 1987 a. 332; 1989 a. 31; 1995 a. 77; 2001 a. 109.

      324

      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.

      325

      Sub. (1) proscribes contributing to the delinquency of any child under the age of eighteen. The definition of "child" in s.948.01 (1) excludes those over seventeen only for the "purposes of prosecuting" a person charged with violating s. 948.40 and not that person's victim. State v. Patterson, 2010 WI 130, 329 Wis. 2d 599, 790 N.W.2d 909, 08-1968.

      326
      948.45 Contributing to truancy.
      327

      (1) Except as provided in sub. (2), any person 17 years of age or older who, by any act or omission, knowingly encourages or contributes to the truancy, as defined under s. 118.16 (1) (c), of a person 17 years of age or under is guilty of a Class C misdemeanor.

      328

      (2) Subsection (1) does not apply to a person who has under his or her control a child who has been sanctioned under s. 49.26 (1) (h).

      329

      (3) An act or omission contributes to the truancy of a child, whether or not the child is adjudged to be in need of protection or services, if the natural and probable consequences of that act or omission would be to cause the child to be truant.

      330

      History: 1987 a. 285; 1989 a. 31 s. 2835m; Stats. 1989 s. 948.45; 1995 a. 27.

      331
      948.50 Strip search by school employee.
      332

      (1) The legislature intends, by enacting this section, to protect pupils from being strip searched. By limiting the coverage of this section, the legislature is not condoning the use of strip searches under other circumstances.

      333

      (2) In this section:

      334

      (a) "School" means a public school, parochial or private school, or tribal school, as defined in s. 115.001 (15m), which provides an educational program for one or more grades between kindergarten and grade 12 and which is commonly known as a kindergarten, elementary school, middle school, junior high school, senior high school, or high school.

      (b) "Strip search" means a search in which a person's genitals, pubic area, buttock or anus, or a female person's breast, is uncovered and either is exposed to view or is touched by a person conducting the search.

      335

      (3) Any official, employee or agent of any school or school district who conducts a strip search of any pupil is guilty of a Class B misdemeanor.

      336

      (4) This section does not apply to a search of any person who:

      337

      (a) Is serving a sentence, pursuant to a conviction, in a jail, state prison or house of correction.

      (b) Is placed in or transferred to a juvenile correctional facility, as defined in s. 938.02 (10p), or a secured residential care center for children and youth, as defined in s. 938.02 (15g).

      (c) Is committed, transferred or admitted under ch. 51, 971 or 975.

      338

      (5) This section does not apply to any law enforcement officer conducting a strip search under s. 968.255.

      339

      History: 1983 a. 489; 1987 a. 332 s. 38; Stats. 1987 s. 948.50; 1995 a. 77; 2005 a. 344; 2009 a. 302.

      340
      948.51 Hazing.
      341

      (1) In this section "forced activity" means any activity which is a condition of initiation or admission into or affiliation with an organization, regardless of a student's willingness to participate in the activity.

      342

      (2) No person may intentionally or recklessly engage in acts which endanger the physical health or safety of a student for the purpose of initiation or admission into or affiliation with any organization operating in connection with a school, college or university. Under those circumstances, prohibited acts may include any brutality of a physical nature, such as whipping, beating, branding, forced consumption of any food, liquor, drug or other substance, forced confinement or any other forced activity which endangers the physical health or safety of the student.

      343

      (3) Whoever violates sub. (2) is guilty of:

      344

      (a) A Class A misdemeanor if the act results in or is likely to result in bodily harm to another.

      (b) A Class H felony if the act results in great bodily harm to another.

      (c) A Class G felony if the act results in the death of another.

      345

      History: 1983 a. 356; 1987 a. 332 s. 32; Stats. 1987 s. 948.51; 2001 a. 109.

      346
      948.53 Child unattended in child care vehicle.
      347

      (1)  Definitions. In this section:

      348

      (a) "Child care provider" means a child care center that is licensed under s. 48.65 (1), a child care provider that is certified under s. 48.651, or a child care program that is established or contracted for under s. 120.13 (14).

      (b) "Child care vehicle" means a vehicle that is owned or leased by a child care provider or a contractor of a child care provider and that is used to transport children to and from the child care provider.

      349

      (2) No child left unattended.

      350

      (a) No person responsible for a child's welfare while the child is being transported in a child care vehicle may leave the child unattended at any time from the time the child is placed in the care of that person to the time the child is placed in the care of another person responsible for the child's welfare.

      351

      (b) Any person who violates par. (a) is guilty of one of the following:

      352

      1. A Class A misdemeanor.

      2. A Class I felony if bodily harm is a consequence.

      3. A Class H felony if great bodily harm is a consequence.

      4. A Class G felony if death is a consequence.

      353

      History: 2005 a. 184; 2007 a. 80; 2009 a. 185.

      354
      948.55 Leaving or storing a loaded firearm within the reach or easy access of a child.
      355

      (1) In this section, "child" means a person who has not attained the age of 14 years.

      356

      (2) Whoever recklessly stores or leaves a loaded firearm within the reach or easy access of a child is guilty of a Class A misdemeanor if all of the following occur:

      357

      (a) A child obtains the firearm without the lawful permission of his or her parent or guardian or the person having charge of the child.

      (b) The child under par. (a) discharges the firearm and the discharge causes bodily harm or death to himself, herself or another.

      358

      (3) Whoever recklessly stores or leaves a loaded firearm within the reach or easy access of a child is guilty of a Class C misdemeanor if all of the following occur:

      359

      (a) A child obtains the firearm without the lawful permission of his or her parent or guardian or the person having charge of the child.

      (b) The child under par. (a) possesses or exhibits the firearm in a public place or in violation of s. 941.20.

      360

      (4) Subsections (2) and (3) do not apply under any of the following circumstances:

      361

      (a) The firearm is stored or left in a securely locked box or container or in a location that a reasonable person would believe to be secure.

      (b) The firearm is securely locked with a trigger lock.

      (c) The firearm is left on the person's body or in such proximity to the person's body that he or she could retrieve it as easily and quickly as if carried on his or her body.

      (d) The person is a peace officer or a member of the armed forces or national guard and the child obtains the firearm during or incidental to the performance of the person's duties. Notwithstanding s. 939.22 (22), for purposes of this paragraph, peace officer does not include a commission warden who is not a state-certified commission warden.

      (e) The child obtains the firearm as a result of an illegal entry by any person.

      (f) The child gains access to a loaded firearm and uses it in the lawful exercise of a privilege under s. 939.48.

      (g) The person who stores or leaves a loaded firearm reasonably believes that a child is not likely to be present where the firearm is stored or left.

      (h) The firearm is rendered inoperable by the removal of an essential component of the firing mechanism such as the bolt in a breech-loading firearm.

      362

      (5) Subsection (2) does not apply if the bodily harm or death resulted from an accident that occurs while the child is using the firearm in accordance with s. 29.304 or 948.60 (3).

      363

      History: 1991 a. 139; 1997 a. 248; 2007 a. 27.

      364
      948.60 Possession of a dangerous weapon by a person under 18.
      365

      (1) In this section, "dangerous weapon" means any firearm, loaded or unloaded; any electric weapon, as defined in s. 941.295 (1c) (a); metallic knuckles or knuckles of any substance which could be put to the same use with the same or similar effect as metallic knuckles; a nunchaku or any similar weapon consisting of 2 sticks of wood, plastic or metal connected at one end by a length of rope, chain, wire or leather; a cestus or similar material weighted with metal or other substance and worn on the hand; a shuriken or any similar pointed star-like object intended to injure a person when thrown; or a manrikigusari or similar length of chain having weighted ends.

      366

      (2) 

      367

      (a) Any person under 18 years of age who possesses or goes armed with a dangerous weapon is guilty of a Class A misdemeanor.

      368

      (b) Except as provided in par. (c), any person who intentionally sells, loans or gives a dangerous weapon to a person under 18 years of age is guilty of a Class I felony.

      369

      (c) Whoever violates par. (b) is guilty of a Class H felony if the person under 18 years of age under par. (b) discharges the firearm and the discharge causes death to himself, herself or another.

      370

      (d) A person under 17 years of age who has violated this subsection is subject to the provisions of ch. 938 unless jurisdiction is waived under s. 938.18 or the person is subject to the jurisdiction of a court of criminal jurisdiction under s. 938.183.

      371

      (3) 

      372

      (a) This section does not apply to a person under 18 years of age who possesses or is armed with a dangerous weapon when the dangerous weapon is being used in target practice under the supervision of an adult or in a course of instruction in the traditional and proper use of the dangerous weapon under the supervision of an adult. This section does not apply to an adult who transfers a dangerous weapon to a person under 18 years of age for use only in target practice under the adult's supervision or in a course of instruction in the traditional and proper use of the dangerous weapon under the adult's supervision.

      373

      (b) This section does not apply to a person under 18 years of age who is a member of the armed forces or national guard and who possesses or is armed with a dangerous weapon in the line of duty. This section does not apply to an adult who is a member of the armed forces or national guard and who transfers a dangerous weapon to a person under 18 years of age in the line of duty.

      374

      (c) This section applies only to a person under 18 years of age who possesses or is armed with a rifle or a shotgun if the person is in violation of s. 941.28 or is not in compliance with ss. 29.304 and 29.593. This section applies only to an adult who transfers a firearm to a person under 18 years of age if the person under 18 years of age is not in compliance with ss. 29.304 and 29.593 or to an adult who is in violation of s. 941.28.

      375

      History: 1987 a. 332; 1991 a. 18, 139; 1993 a. 98; 1995 a. 27, 77; 1997 a. 248; 2001 a. 109; 2005 a. 163; 2011 a. 35.

      376

      Sub. (2) (b) does not set a standard for civil liability, and a violation of sub. (2) (b) does not constitute negligence per se. Logarto v. Gustafson, 998 F. Supp. 998 (1998).

      377
      948.605 Gun-free school zones.
      378

      (1)  Definitions. In this section:

      379

      (a) "Encased" has the meaning given in s. 167.31 (1) (b).

      (ac) "Firearm" does not include any beebee or pellet-firing gun that expels a projectile through the force of air pressure or any starter pistol.

      (am) "Motor vehicle" has the meaning given in s. 340.01 (35).

      (b) "School" has the meaning given in s. 948.61 (1) (b).

      (c) "School zone" means any of the following:

      1. In or on the grounds of a school.

      2. Within 1,000 feet from the grounds of a school.

      380

      (2) Possession of firearm in school zone.

      381

      (a) Any individual who knowingly possesses a firearm at a place that the individual knows, or has reasonable cause to believe, is in or on the grounds of a school is guilty of a Class I felony. Any individual who knowingly possesses a firearm at a place that the individual knows, or has reasonable cause to believe, is within 1,000 feet of the grounds of a school is subject to a Class B forfeiture.

      382

      (b) Paragraph (a) does not apply to the possession of a firearm by any of the following:

      383

      1m. A person who possesses the firearm in accordance with 18 USC 922 (q) (2) (B) (i), (iv), (v), (vi), or (vii).

      1r. Except if the person is in or on the grounds of a school, a licensee, as defined in s. 175.60 (1) (d), or an out-of-state licensee, as defined in s. 175.60 (1) (g).

      2m. A state-certified commission warden acting in his or her official capacity.

      3. That is not loaded and is:

      a. Encased; or

      b. In a locked firearms rack that is on a motor vehicle;

      3m. A person who is legally hunting in a school forest if the school board has decided that hunting may be allowed in the school forest under s. 120.13 (38).

      384

      (3) Discharge of firearm in a school zone.

      385

      (a) Any individual who knowingly, or with reckless disregard for the safety of another, discharges or attempts to discharge a firearm at a place the individual knows is a school zone is guilty of a Class G felony.

      386

      (b) Paragraph (a) does not apply to the discharge of, or the attempt to discharge, a firearm:

      387

      1. On private property not part of school grounds;

      2. As part of a program approved by a school in the school zone, by an individual who is participating in the program;

      3. By an individual in accordance with a contract entered into between a school in a school zone and the individual or an employer of the individual; or

      4. By a law enforcement officer or state-certified commission warden acting in his or her official capacity.

      388

      History: 1991 a. 17; 1993 a. 336; 2001 a. 109; 2005 a. 290; 2007 a. 27; 2011 a. 35.

      389
      948.61 Dangerous weapons other than firearms on school premises.
      390

      (1) In this section:

      391

      (a) "Dangerous weapon" has the meaning specified in s. 939.22 (10), except "dangerous weapon" does not include any firearm and does include any beebee or pellet-firing gun that expels a projectile through the force of air pressure or any starter pistol.

      (b) "School" means a public school, parochial or private school, or tribal school, as defined in s. 115.001 (15m), which provides an educational program for one or more grades between grades 1 and 12 and which is commonly known as an elementary school, middle school, junior high school, senior high school, or high school.

      (c) "School premises" means any school building, grounds, recreation area or athletic field or any other property owned, used or operated for school administration.

      392

      (2) Any person who knowingly possesses or goes armed with a dangerous weapon on school premises is guilty of:

      393

      (a) A Class A misdemeanor.

      (b) A Class I felony, if the violation is the person's 2nd or subsequent violation of this section within a 5-year period, as measured from the dates the violations occurred.

      394

      (3) This section does not apply to any person who:

      395

      (a) Uses a weapon solely for school-sanctioned purposes.

      (b) Engages in military activities, sponsored by the federal or state government, when acting in the discharge of his or her official duties.

      (c) Is a law enforcement officer or state-certified commission warden acting in the discharge of his or her official duties.

      (d) Participates in a convocation authorized by school authorities in which weapons of collectors or instructors are handled or displayed.

      (e) Drives a motor vehicle in which a dangerous weapon is located onto school premises for school-sanctioned purposes or for the purpose of delivering or picking up passengers or property. The weapon may not be removed from the vehicle or be used in any manner.

      (f) Possesses or uses a bow and arrow or knife while legally hunting in a school forest if the school board has decided that hunting may be allowed in the school forest under s. 120.13 (38).

      396

      (4) A person under 17 years of age who has violated this section is subject to the provisions of ch. 938, unless jurisdiction is waived under s. 938.18 or the person is subject to the jurisdiction of a court of criminal jurisdiction under s. 938.183.

      397

      History: 1987 a. 332; 1991 a. 17; 1993 a. 336; 1995 a. 27, 77; 2001 a. 109; 2005 a. 290; 2007 a. 27; 2009 a. 302.

      398

      Pellet guns and BB guns are dangerous weapons under this section. Interest of Michelle A.D. 181 Wis. 2d 917, 512 N.W.2d 248 (Ct. App. 1994).

      399
      948.62 Receiving stolen property from a child.
      400

      (1) Whoever intentionally receives stolen property from a child or conceals stolen property received from a child is guilty of:

      401

      (a) A Class A misdemeanor, if the value of the property does not exceed $500.

      (b) A Class I felony, if the value of the property exceeds $500 but does not exceed $2,500.

      (bm) A Class H felony, if the property is a firearm or if the value of the property exceeds $2,500 but does not exceed $5,000.

      (c) A Class G felony, if the value of the property exceeds $5,000.

      402

      (2) Under this section, proof of all of the following is prima facie evidence that property received from a child was stolen and that the person receiving the property knew it was stolen:

      403

      (a) That the value of the property received from the child exceeds $500.

      (b) That there was no consent by a person responsible for the child's welfare to the delivery of the property to the person.

      404

      History: 1987 a. 332; 2001 a. 109; 2011 a. 99.

      405
      948.63 Receiving property from a child.
      406

      Whoever does either of the following is guilty of a Class A misdemeanor:

      407

      (1) As a dealer in secondhand articles or jewelry or junk, purchases any personal property, except old rags and waste paper, from any child, without the written consent of his or her parent or guardian; or

      (2) As a pawnbroker or other person who loans money and takes personal property as security therefor, receives personal property as security for a loan from any child without the written consent of his or her parent or guardian.

      408

      History: 1971 c. 228; 1977 c. 173; 1987 a. 332 s. 40; Stats. 1987 s. 948.63; 1989 a. 257.

      409
      948.70 Tattooing of children.
      410

      (1) In this section:

      411

      (a) "Physician" has the meaning given in s. 448.01 (5).

      (b) "Tattoo" means to insert pigment under the surface of the skin of a person, by pricking with a needle or otherwise, so as to produce an indelible mark or figure through the skin.

      412

      (2) Subject to sub. (3), any person who tattoos or offers to tattoo a child is subject to a Class D forfeiture.

      413

      (3) Subsection (2) does not prohibit a physician from tattooing or offering to tattoo a child in the course of his or her professional practice.

      414

      History: 1991 a. 106.

    • 1.9 HLS Sexual Harassment Policy

    • 1.10 HLS Ad Board

  • 2 V.A.ii. Cases

    • 2.1 State v. Rusk

      1
      289 Md. 230 (1981)
      2
      424 A.2d 720
      3
      STATE OF MARYLAND
      v.
      EDWARD SALVATORE RUSK
      4
      [No. 142, September Term, 1979.]
      5

      Court of Appeals of Maryland.

      6
      Decided January 13, 1981.
      7

       

      8

      The cause was argued before MURPHY, C.J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

      9

      Stephen H. Sachs, Attorney General, with whom were Deborah K. Handel and Kathleen M. Sweeney, Assistant Attorneys General, on the brief, for appellant.

      10

      Ira C. Cooke, with whom were Melnicove, Kaufman & Weiner, P.A. on the brief, for appellee.

      11

      MURPHY, C.J., delivered the opinion of the Court. SMITH, DIGGES and COLE, JJ., dissent. COLE, J., filed a dissenting Opinion at page 247 infra, which SMITH and DIGGES, JJ., concur.

      12

      Edward Rusk was found guilty by a jury in the Criminal [232] Court of Baltimore (Karwacki, J. presiding) of second degree rape in violation of Maryland Code (1957, 1976 Repl. Vol., 1980 Cum. Supp.), Art. 27, § 463 (a) (1), which provides in pertinent part:

      13

      "A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:

      (1) By force or threat of force against the will and without the consent of the other person; ...." 

      14

      On appeal, the Court of Special Appeals, sitting en banc, reversed the conviction; it concluded by an 8 — 5 majority that in view of the prevailing law as set forth in Hazel v. State, 221 Md. 464, 157 A.2d 922 (1960), insufficient evidence of Rusk's guilt had been adduced at the trial to permit the case to go to the jury. Rusk v. State, 43 Md. App. 476, 406 A.2d 624 (1979). We granted certiorari to consider whether the Court of Special Appeals properly applied the principles of Hazel in determining that insufficient evidence had been produced to support Rusk's conviction.

      15

      At the trial, the 21-year-old prosecuting witness, Pat, testified that on the evening of September 21, 1977, she attended a high school alumnae meeting where she met a girl friend, Terry. After the meeting, Terry and Pat agreed to drive in their respective cars to Fells Point to have a few drinks. On the way, Pat stopped to telephone her mother, who was baby sitting for Pat's two-year-old son; she told her mother that she was going with Terry to Fells Point and would not be late in arriving home.

      16

      The women arrived in Fells Point about 9:45 p.m. They went to a bar where each had one drink. After staying approximately one hour, Pat and Terry walked several blocks to a second bar, where each of them had another drink. After about thirty minutes, they walked two blocks to a third bar known as E.J. Buggs. The bar was crowded and a band was playing in the back. Pat ordered another drink and as she and Terry were leaning against the wall, Rusk approached and said "hello" to Terry. Terry, who was then conversing with another individual, momentarily [233] interrupted her conversation and said "Hi, Eddie." Rusk then began talking with Pat and during their conversation both of them acknowledged being separated from their respective spouses and having a child. Pat told Rusk that she had to go home because it was a week-night and she had to wake up with her baby early in the morning.

      17

      Rusk asked Pat the direction in which she was driving and after she responded, Rusk requested a ride to his apartment. Although Pat did not know Rusk, she thought that Terry knew him. She thereafter agreed to give him a ride. Pat cautioned Rusk on the way to the car that "`I'm just giving a ride home, you know, as a friend, not anything to be, you know, thought of other than a ride;'" and he said, "`Oh, okay.'" They left the bar between 12:00 and 12:20 a.m.

      18

      Pat testified that on the way to Rusk's apartment, they continued the general conversation that they had started in the bar. After a twenty-minute drive, they arrived at Rusk's apartment in the 3100 block of Guilford Avenue. Pat testified that she was totally unfamiliar with the neighborhood. She parked the car at the curb on the opposite side of the street from Rusk's apartment but left the engine running. Rusk asked Pat to come in, but she refused. He invited her again, and she again declined. She told Rusk that she could not go into his apartment even if she wanted to because she was separated from her husband and a detective could be observing her movements. Pat said that Rusk was fully aware that she did not want to accompany him to his room. Notwithstanding her repeated refusals, Pat testified that Rusk reached over and turned off the ignition to her car and took her car keys. He got out of the car, walked over to her side, opened the door and said, "`Now, will you come up?'" Pat explained her subsequent actions:

      19

      "At that point, because I was scared, because he had my car keys. I didn't know what to do. I was someplace I didn't even know where I was. It was in the city. I didn't know whether to run. I really didn't think, at that point, what to do.

      "Now, I know that I should have blown the horn. I should have run. There were a million things I [234] could have done. I was scared, at that point, and I didn't do any of them."

      20

       

      21

      Pat testified that at this moment she feared that Rusk would rape her. She said: "[I]t was the way he looked at me, and said `Come on up, come on up;' and when he took the keys, I knew that was wrong."

      22

      It was then about 1 a.m. Pat accompanied Rusk across the street into a totally dark house. She followed him up two flights of stairs. She neither saw nor heard anyone in the building. Once they ascended the stairs, Rusk unlocked the door to his one-room apartment, and turned on the light. According to Pat, he told her to sit down. She sat in a chair beside the bed. Rusk sat on the bed. After Rusk talked for a few minutes, he left the room for about one to five minutes. Pat remained seated in the chair. She made no noise and did not attempt to leave. She said that she did not notice a telephone in the room. When Rusk returned, he turned off the light and sat down on the bed. Pat asked if she could leave; she told him that she wanted to go home and "didn't want to come up." She said, "`Now, [that] I came up, can I go?'" Rusk, who was still in possession of her car keys, said he wanted her to stay.

      23

      Rusk then asked Pat to get on the bed with him. He pulled her by the arms to the bed and began to undress her, removing her blouse and bra. He unzipped her slacks and she took them off after he told her to do so. Pat removed the rest of her clothing, and then removed Rusk's pants because "he asked me to do it." After they were both undressed Rusk started kissing Pat as she was lying on her back. Pat explained what happened next:

      24
      "I was still begging him to please let, you know, let me leave. I said, `you can get a lot of other girls down there, for what you want,' and he just kept saying, `no'; and then I was really scared, because I can't describe, you know, what was said. It was more the look in his eyes; and I said, at that point — I didn't know what to say; and I said, `If I do what you want, will you let me go without killing me?' [235] Because I didn't know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat, and started lightly to choke me; and I said, `If I do what you want, will you let me go?' And he said, yes, and at that time, I proceeded to do what he wanted me to."
      25

       

      26

      Pat testified that Rusk made her perform oral sex and then vaginal intercourse.

      27

      Immediately after the intercourse, Pat asked if she could leave. She testified that Rusk said, "`Yes,'" after which she got up and got dressed and Rusk returned her car keys. She said that Rusk then "walked me to my car, and asked if he could see me again; and I said, `Yes;' and he asked me for my telephone number; and I said, `No, I'll see you down Fells Point sometime,' just so I could leave." Pat testified that she "had no intention of meeting him again." She asked him for directions out of the neighborhood and left.

      28

      On her way home, Pat stopped at a gas station, went to the ladies room, and then drove "pretty much straight home and pulled up and parked the car." At first she was not going to say anything about the incident. She explained her initial reaction not to report the incident: "I didn't want to go through what I'm going through now [at the trial]." As she sat in her car reflecting on the incident, Pat said she began to "wonder what would happen if I hadn't of done what he wanted me to do. So I thought the right thing to do was to go report it, and I went from there to Hillendale to find a police car." She reported the incident to the police at about 3:15 a.m. Subsequently, Pat took the police to Rusk's apartment, which she located without any great difficulty.

      29

      Pat's girlfriend Terry corroborated her testimony concerning the events which occurred up to the time that Pat left the bar with Rusk. Questioned about Pat's alcohol consumption, Terry said she was drinking screwdrivers that night but normally did not finish a drink. Terry testified about her acquaintanceship with Rusk: "I knew his face, and his first name, but I honestly couldn't tell you — apparently I ran into him sometime before. I couldn't tell you how I know him. I don't know him very well at all."

      30

      [236] Officer Hammett of the Baltimore City Police Department acknowledged receiving Pat's rape complaint at 3:15 a.m. on September 22, 1977. He accompanied her to the 3100 block of Guilford Avenue where it took Pat several minutes to locate Rusk's apartment. Officer Hammett entered Rusk's multi-dwelling apartment house, which contained at least six apartments, and arrested Rusk in a room on the second floor.

      31

      Hammett testified that Pat was sober, and she was taken to City Hospital for an examination. The examination disclosed that seminal fluid and spermatazoa were detected in Pat's vagina, on her underpants, and on the bed sheets recovered from Rusk's bed.

      32

      At the close of the State's case-in-chief, Rusk moved for a judgment of acquittal. In denying the motion, the trial court said:

      33

      "There is evidence that there is a taking of automobile keys forcibly, a request that the prosecuting witness accompany the Defendant to the upstairs apartment. She described a look in his eye which put her in fear.

      "Now, you are absolutely correct that there was no weapon, no physical threatening testified to. However, while she was seated on a chair next to the bed, the Defendant excused himself, and came back in five minutes; and then she testifies, he pulled her on to the bed by reaching over and grabbing her wrists, and/or had her or requested, that she disrobe, and assist him in disrobing.

      "Again, she said she was scared, and then she testified to something to the effect that she said to him, she was begging him to let her leave. She was scared. She started to cry. He started to strangle her softly she said. She asked the Defendant, that if she'd submit, would he not kill her, at which point he indicated that he would not; and she performed oral sex on him, and then had intercourse."

      34

       

      35

      [237] Rusk and two of his friends, Michael Trimp and David Carroll, testified on his behalf. According to Trimp, they went in Carroll's car to Buggs' bar to dance, drink and "tr[y] to pick up some ladies." Rusk stayed at the bar, while the others went to get something to eat.

      36

      Trimp and Carroll next saw Rusk walking down the street arm-in-arm with a lady whom Trimp was unable to identify. Trimp asked Rusk if he needed a ride home. Rusk responded that the woman he was with was going to drive him home. Trimp testified that at about 2:00 — 2:30 a.m. he returned to the room he rented with Rusk on Guilford Avenue and found Rusk to be the only person present. Trimp said that as many as twelve people lived in the entire building and that the room he rented with Rusk was referred to as their "pit stop." Both Rusk and Trimp actually resided at places other than the Guilford Avenue room. Trimp testified that there was a telephone in the apartment.

      37

      Carroll's testimony corroborated Trimp's. He saw Rusk walking down the street arm-in-arm with a woman. He said "[s]he was kind of like, you know, snuggling up to him like.... She was hanging all over him then." Carroll was fairly certain that Pat was the woman who was with Rusk.

      38

      Rusk, the 31-year-old defendant, testified that he was in the Buggs Tavern for about thirty minutes when he noticed Pat standing at the bar. Rusk said: "She looked at me, and she smiled. I walked over and said, hi, and started talking to her." He did not remember either knowing or speaking to Terry. When Pat mentioned that she was about to leave, Rusk asked her if she wanted to go home with him. In response, Pat said that she would like to, but could not because she had her car. Rusk then suggested that they take her car. Pat agreed and they left the bar arm-in-arm.

      39

      Rusk testified that during the drive to her apartment, he discussed with Pat their similar marital situations and talked about their children. He said that Pat asked him if he was going to rape her. When he inquired why she was asking, Pat said that she had been raped once before. Rusk expressed his sympathy for her. Pat then asked him if he [238] planned to beat her. He inquired why she was asking and Pat explained that her husband used to beat her. Rusk again expressed his sympathy. He testified that at no time did Pat express a fear that she was being followed by her separated husband.

      40

      According to Rusk, when they arrived in front of his apartment Pat parked the car and turned the engine off. They sat for several minutes "petting each other." Rusk denied switching off the ignition and removing the keys. He said that they walked to the apartment house and proceeded up the stairs to his room. Rusk testified that Pat came willingly to his room and that at no time did he make threatening facial expressions. Once inside his room, Rusk left Pat alone for several minutes while he used the bathroom down the hall. Upon his return, he switched the light on but immediately turned it off because Pat, who was seated in the dark in a chair next to the bed, complained it was too bright. Rusk said that he sat on the bed across from Pat and reached out

      41
      "and started to put my arms around her, and started kissing her; and we fell back into the bed, and she — we were petting, kissing, and she stuck her hand down in my pants and started playing with me; and I undid her blouse, and took off her bra; and then I sat up and I said `Let's take our clothes off;' and she said, `Okay;' and I took my clothes off, and she took her clothes off; and then we proceeded to have intercourse."
      42

       

      43

      Rusk explained that after the intercourse, Pat "got uptight."

      44

      "Well, she started to cry. She said that — she said, `You guys are all alike,' she says, `just out for,' you know, `one thing.'

      "She started talking about — I don't know, she was crying and all. I tried to calm her down and all; and I said, `What's the matter?' And she said, that she just wanted to leave; and I said, `Well, okay;' [239] and she walked out to the car. I walked out to the car. She got in the car and left."

      45

       

      46

      Rusk denied placing his hands on Pat's throat or attempting to strangle her. He also denied using force or threats of force to get Pat to have intercourse with him.

      47

      In reversing Rusk's second degree rape conviction, the Court of Special Appeals, quoting from Hazel, 221 Md. at 469, noted that:

      48
      "Force is an essential element of the crime [of rape] and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety." 
      49

       

      50

      Writing for the majority, Judge Thompson said:

      51
      "In all of the victim's testimony we have been unable to see any resistance on her part to the sex acts and certainly can we see no fear as would overcome her attempt to resist or escape as required by Hazel. Possession of the keys by the accused may have deterred her vehicular escape but hardly a departure seeking help in the rooming house or in the street. We must say that `the way he looked' fails utterly to support the fear required by Hazel." 43 Md. App. at 480. 
      52

       

      53

      The Court of Special Appeals interpreted Hazel as requiring a showing of a reasonable apprehension of fear in instances where the prosecutrix did not resist. It concluded:

      54
      "we find the evidence legally insufficient to warrant a conclusion that appellant's words or actions created in the mind of the victim a reasonable fear that if she resisted, he would have harmed her, or that faced with such resistance, he would have used force to overcome it. The prosecutrix stated that she was afraid, and submitted because of `the look in his eyes.' After both were undressed and in the bed, and [240] she pleaded to him that she wanted to leave, he started to lightly choke her. At oral argument it was brought out that the `lightly choking' could have been a heavy caress. We do not believe that `lightly choking' along with all the facts and circumstances in the case, were sufficient to cause a reasonable fear which overcame her ability to resist. In the absence of any other evidence showing force used by appellant, we find that the evidence was insufficient to convict appellant of rape." Id. at 484.
      55

       

      56

      In argument before us on the merits of the case, the parties agreed that the issue was whether, in light of the principles of Hazel, there was evidence before the jury legally sufficient to prove beyond a reasonable doubt that the intercourse was "[b]y force or threat of force against the will and without the consent" of the victim in violation of Art. 27, § 463 (a) (1). Of course, due process requirements mandate that a criminal conviction not be obtained if the evidence does not reasonably support a finding of guilt beyond a reasonable doubt. Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980). However, as the Supreme Court made clear in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the reviewing court does not ask itself whether it believes that the evidence established guilt beyond a reasonable doubt; rather, the applicable standard is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319 (emphasis in original).

      57

      The vaginal intercourse once being established, the remaining elements of rape in the second degree under § 463 (a) (1) are, as in a prosecution for common law rape (1) force — actual or constructive, and (2) lack of consent. The terms in § 463 (a) (1) — "force," "threat of force," "against the will" and "without the consent" — are not defined in the statute, but are to be afforded their "judicially determined meaning" as applied in cases involving common law rape. [241] See Art. 27, § 464E.[1] In this regard, it is well settled that the terms "against the will" and "without the consent" are synonymous in the law of rape.[2]

      58

      Hazel, which was decided in 1960, long before the enactment of § 463 (a) (1), involved a prosecution for common law rape, there defined as "the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim." 221 Md. at 468-69. The evidence in that case disclosed that Hazel followed the prosecutrix into her home while she was unloading groceries from her car. He put his arm around her neck, said he had a gun, and threatened to shoot her baby if she moved. Although the prosecutrix never saw a gun, Hazel kept one hand in his pocket and repeatedly stated that he had a gun. He robbed the prosecutrix, tied her hands, gagged her, and took her into the cellar. The prosecutrix complied with Hazel's commands to lie on the floor and to raise her legs. Hazel proceeded to have intercourse with her while her hands were still tied. The victim testified that she did not struggle because she was afraid for her life. There was evidence that she told the police that Hazel did not use force at any time and was extremely gentle. Hazel claimed that the intercourse was consensual and that he never made any threats. The Court said that the issue before it was whether "the evidence was insufficient to sustain the conviction of rape because the conduct of the prosecutrix was such as to render her failure to resist consent in law." Id. at 468. It was in the context of this evidentiary background that the Court set forth the principles of law which controlled the [242] disposition of the case. It recognized that force and lack of consent are distinct elements of the crime of rape. It said:

      59
      "Force is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety. But no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily that fact must depend upon the prevailing circumstances. As in this case force may exist without violence. 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." Id. at 469.
      60

       

      61

      As to the element of lack of consent, the Court said in Hazel:

      62
      "[I]t is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character. There is, however, a wide difference between consent and a submission to the act. Consent may involve submission, but submission does not necessarily imply consent. Furthermore, submission to a compelling force, or as a result of being put in fear, is not consent." Id.
      63

       

      64

      The Court noted that lack of consent is generally established through proof of resistance or by proof that the victim failed to resist because of fear. The degree of fear necessary to obviate the need to prove resistance, and thereby establish lack of consent, was defined in the following manner:

      65
      "The kind of fear which would render resistance by a woman unnecessary to support a conviction of [243] rape includes, but is not necessarily limited to, a fear of death or serious bodily harm, or a fear so extreme as to preclude resistance, or a fear which would well nigh render her mind incapable of continuing to resist, or a fear that so overpowers her that she does not dare resist." Id. at 470.
      66

       

      67

      Hazel thus made it clear that lack of consent could be established through proof that the victim submitted as a result of fear of imminent death or serious bodily harm. In addition, if the actions and conduct of the defendant were reasonably calculated to induce this fear in the victim's mind, then the element of force is present. Hazel recognized, therefore, that the same kind of evidence may be used in establishing both force and nonconsent, particularly when a threat rather than actual force is involved.

      68

      The Court noted in Hazel that the judges who heard the evidence, and who sat as the trier of fact in Hazel's non-jury case, had concluded that, in light of the defendant's acts of violence and threats of serious harm, there existed a genuine and continuing fear of such harm on the victim's part, so that the ensuing act of sexual intercourse under this fear "`amounted to a felonious and forcible act of the defendant against the will and consent of the prosecuting witness.'" In finding the evidence sufficient to sustain the conviction, the Court observed that "[t]he issue of whether the intercourse was accomplished by force and against the will and consent of the victim was one of credibility, properly to be resolved by the trial court." 221 Md. at 470.

      69

      Hazel did not expressly determine whether the victim's fear must be "reasonable." Its only reference to reasonableness related to whether "the acts and threats of the defendant were reasonably calculated to create in the mind of the victim ... a real apprehension, due to fear, of imminent bodily harm...." 221 Md. at 469. Manifestly, the Court was there referring to the calculations of the accused, not to the fear of the victim. While Hazel made it clear that the victim's fear had to be genuine, it did not pass upon whether a real but unreasonable fear of imminent death or serious [244] bodily harm would suffice. The vast majority of jurisdictions have required that the victim's fear be reasonably grounded in order to obviate the need for either proof of actual force on the part of the assailant or physical resistance on the part of the victim.[3] We think that, generally, this is the correct standard.

      70

      As earlier indicated, the Court of Special Appeals held that a showing of a reasonable apprehension of fear was essential under Hazel to establish the elements of the offense where the victim did not resist. The Court did not believe, however, that the evidence was legally sufficient to demonstrate the existence of "a reasonable fear" which overcame Pat's ability to resist. In support of the Court's conclusion, Rusk maintains that the evidence showed that Pat voluntarily entered his apartment without being subjected to a "single threat nor a scintilla of force"; that she made no effort to run away nor did she scream for help; that she never exhibited a will to resist; and that her subjective reaction of fear to the situation in which she had voluntarily placed herself was unreasonable and exaggerated. Rusk claims that his acts were not reasonably calculated to overcome a will to resist; that Pat's verbal resistance was not resistance within the contemplation of Hazel; that his alleged menacing look did not constitute a threat of force; and that even had he pulled Pat to the bed, and lightly choked her, as she claimed, [245] these actions, viewed in the context of the entire incident — no prior threats having been made — would be insufficient to constitute force or a threat of force or render the intercourse nonconsensual.

      71

      We think the reversal of Rusk's conviction by the Court of Special Appeals was in error for the fundamental reason so well expressed in the dissenting opinion by Judge Wilner when he observed that the majority had "trampled upon the first principle of appellate restraint ... [because it had] substituted [its] own view of the evidence (and the inferences that may fairly be drawn from it) for that of the judge and jury ... [and had thereby] improperly invaded the province allotted to those tribunals." 43 Md. App. at 484-85. In view of the evidence adduced at the trial, the reasonableness of Pat's apprehension of fear was plainly a question of fact for the jury to determine. See People v. Merritt, 64 Ill. App.3d 482, 381 N.E.2d 407 (1978); State v. Baldwin, 571 S.W.2d 236 (Mo. 1978); People v. Yannucci, 283 N.Y. 546, 29 N.E.2d 185 (1940); Schrum v. Commonwealth, 246 S.E.2d 893 (Va. 1978); Tryon v. State, 567 P.2d 290 (Wyo. 1977). The principle of these cases was applied in Giles v. State, 229 Md. 370, 382, 183 A.2d 359 (1962), a common law rape prosecution involving conflicting evidence as to the use of force and lack of consent, where the Court concluded that the question "whether the intercourse had been consented to or had been accomplished by force, was clearly one to be resolved by the trier of facts." Johnson v. State, 232 Md. 199, 192 A.2d 506 (1963), another rape case, is to the same effect. Applying the constitutional standard of review articulated in Jackson v. Virginia, supra, i.e. — whether after considering the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt — it is readily apparent to us that the trier of fact could rationally find that the elements of force and non-consent had been established and that Rusk was guilty of the offense beyond a reasonable doubt. Of course, it was for the jury to observe the witnesses and their demeanor, and to judge their credibility and weigh their testimony. Quite obviously, the [246] jury disbelieved Rusk and believed Pat's testimony. From her testimony, the jury could have reasonably concluded that the taking of her car keys was intended by Rusk to immobilize her alone, late at night, in a neighborhood with which she was not familiar; that after Pat had repeatedly refused to enter his apartment, Rusk commanded in firm tones that she do so; that Pat was badly frightened and feared that Rusk intended to rape her; that unable to think clearly and believing that she had no other choice in the circumstances, Pat entered Rusk's apartment; that once inside Pat asked permission to leave but Rusk told her to stay; that he then pulled Pat by the arms to the bed and undressed her; that Pat was afraid that Rusk would kill her unless she submitted; that she began to cry and Rusk then put his hands on her throat and began "`lightly to choke'" her; that Pat asked him if he would let her go without killing her if she complied with his demands; that Rusk gave an affirmative response, after which she finally submitted.

      72

      Just where persuasion ends and force begins in cases like the present is essentially a factual issue, to be resolved in light of the controlling legal precepts. That threats of force need not be made in any particular manner in order to put a person in fear of bodily harm is well established. Hazel, supra; Dumer v. State, 64 Wis.2d 590, 219 N.W.2d 592 (1974). Indeed, conduct, rather than words, may convey the threat. See People v. Benavidez, 63 Cal. Rptr. 357, 255 C.A.2d 563 (1967); State v. Douglas, 256 La. 572, 237 So.2d 382, death sentence vacated, 408 U.S. 937, 92 S.Ct. 2864, 33 L.Ed.2d 756 (1970); State v. Bouldin, 153 Mont. 276, 456 P.2d 830 (1969); Blotkamp v. State, 45 Md. App. 64, 411 A.2d 1068 (1980). That a victim did not scream out for help or attempt to escape, while bearing on the question of consent, is unnecessary where she is restrained by fear of violence. See People v. Merritt, 64 Ill. App.3d 482, 381 N.E.2d 407 (1978); Holland v. State, 356 N.E.2d 686 (Ind. App. 1976); State v. Stevenson, 195 N.W.2d 358 (Iowa 1972).

      73

      Considering all of the evidence in the case, with particular focus upon the actual force applied by Rusk to Pat's neck, we conclude that the jury could rationally find that the essential [247] elements of second degree rape had been established and that Rusk was guilty of that offense beyond a reasonable doubt.

      74

      Judgment of the Court of Special Appeals reversed; case remanded to that court with directions that it affirm the judgment of the Criminal Court of Baltimore; costs to be paid by the appellee.

      75

      Cole, J., dissenting:

      76

      I agree with the Court of Special Appeals that the evidence adduced at the trial of Edward Salvatore Rusk was insufficient to convict him of rape. I, therefore, respectfully dissent.

      77

      The standard of appellate review in deciding a question of sufficiency, as the majority correctly notes, is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980). However, it is equally well settled that when one of the essential elements of a crime is not sustained by the evidence, the conviction of the defendant cannot stand as a matter of law.

      78

      The majority, in applying this standard, concludes that "[i]n view of the evidence adduced at the trial, the reasonableness of Pat's apprehension of fear was plainly a question of fact for the jury to determine." In so concluding, the majority has skipped over the crucial issue. It seems to me that whether the prosecutrix's fear is reasonable becomes a question only after the court determines that the defendant's conduct under the circumstances was reasonably calculated to give rise to a fear on her part to the extent that she was unable to resist. In other words, the fear must stem from his articulable conduct, and equally, if not more importantly, [248] cannot be inconsistent with her own contemporaneous reaction to that conduct. The conduct of the defendant, in and of itself, must clearly indicate force or the threat of force such as to overpower the prosecutrix's ability to resist or will to resist. In my view, there is no evidence to support the majority's conclusion that the prosecutrix was forced to submit to sexual intercourse, certainly not fellatio.

      79

      This Court defined rape in Hazel v. State, 221 Md. 464, 468-69, 157 A.2d 922 (1960), as "the act of a man having unlawful carnal knowledge of a female over the age of ten years by force without the consent and against the will of the victim." The Court went on to declare that "[f]orce is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety." 221 Md. at 469. We noted that "no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily that fact must depend upon the prevailing circumstances." Id. However, we hastened to add that "[i]f the acts and threats of the defendant [are] reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she [is] 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." Id.

      80

      To avoid any confusion about the substantive law to be applied, we further stated in Hazel that while

      81
      [t]he authorities are by no means in accord as to what degree of resistance is necessary to establish the absence of consent ... the generally accepted doctrine seems to be that a female — who was conscious and possessed of her natural, mental and physical powers when the attack took place — must have resisted to the extent of her ability at the time, unless it appears that she was overcome by numbers or so terrified by threats as to overcome her will to resist. [221 Md. at 469-70.]
      82

       

      83

      [249] By way of illustration, we cited certain cases. In State v. Thompson, 227 N.C. 19, 40 S.E.2d 620 (1946), the victim and her friend, Straughan, were riding in a car which stalled and could not be started again even with the help of the defendants, who were strangers. One of the defendants persuaded Straughan to accompany him down the road to get a chain for the purpose of towing the car. After Straughan and one defendant left, the other three forcibly took the victim from her car into an unfinished house, a block away, and each had intercourse with her. The victim did not object to intercourse with the three defendants because she was frightened and afraid they would kill her. In addition, it was plainly a jury question whether the prosecutrix was "[i]n such place and position that resistance would have been useless." 40 S.E.2d at 625 (quoting Mills v. United States, 164 U.S. 644, 649, 17 S.Ct. 210, 41 L.Ed. 584 (1879)).

      84

      In State v. Dill, 3 Terry 533, 40 A.2d 443 (Del. 1944), the State produced evidence to show that the victim, her husband, and two children were impeded in their return home when their automobile stalled on the highway near a tavern. The husband got out and began walking home for gas, leaving his wife and two children in the car. Sometime later, the defendant happened upon the scene and induced the wife to let him take her in his automobile for the purpose of overtaking her husband along the road. Instead, the defendant drove his car off the highway into a private lane. When the car stopped, the wife got out of the car and attempted to flee but was overtaken by the defendant who on the grass plot between the two highway lanes had sexual intercourse with her.

      85

      The trial judge, in submitting the case to the jury, instructed them, in part, as follows:

      86
      In the absence of excusing circumstances it must be shown that the woman did resent the attack made upon her in good faith and without pretense, with an active determination to prevent the violation of her person, and was not merely passive and perfunctory in her resistance. [40 A.2d at 445.] [Emphasis supplied.]
      87

       

      88

      [250] In State v. Hoffman, 228 Wis. 235, 280 N.W. 357 (1938), the complaining witness entered the defendant's car under friendly circumstances and was driven out into the country without protest. When the defendant made his advances she shouted she was going home, pulled away from him and ran. He caught up with her and there was a tussle; she fell and tried to kick him. Again she ran and he caught her and said "if you run again I will choke you and throw you in the ditch...." 280 N.W. at 360. After that she walked with him back to the car. He did not order her to get in, but begged her. No force was used thereafter. Finally, she consented and acquiesced in the events which followed. At trial the complainant testified she was terribly frightened. Nevertheless the court concluded:

      89

      Suffice it to say that we have painstakingly read and re-read her testimony with the result that in our opinion it falls far short of proving that resistance which our law requires, unless her failure to resist was excused because of a fear of death or of great bodily harm or unless she was so terrified as to be unable to resist the defendant. It is apparently conceded by the State that her resistance was insufficient to prove the crime of rape unless her acquiescence or submission to the defendant was the result of that fear which our settled rules require. From the testimony of the complaining witness, it appears that she was fully cognizant of everything that was going on, fully able to relate every detail thereof and that she was in no reasonable sense dominated by that fear which excused the "utmost resistance" within her power.

      While the evidence is well calculated to arouse keen indignation against the defendant who so persistently and importunately pursued the complaining witness, who at that time was a virgin, it falls short, in our opinion, of proving a case of rape. [280 N.W. at 360-361.]

      90

       

      91

      [251] In Selvage v. State, 148 Neb. 409, 27 N.W.2d 636 (1947), an 18-year-old woman went to a dance with her brother and later decided to go to a cafe with the defendants and some other acquaintances. They drove to a ball park several blocks away where she and the defendant and another got out. The others in the car drove away. She and the two males walked about a block into the park; she refused their advances for intercourse. She claimed they threw her to the ground, held her while they took turns having sexual intercourse. While this was going on a car with its lights on drove up and the two young men hurried some distance away from her. She made no outcry, nor attempted to communicate with the people in this car. Later at a different place in the park, she claimed each had intercourse with her again. The three walked back to the cafe, drank coffee, and waited to get a car to take them to the city near her home. When they finally got a car, she testified the two repeated the acts of intercourse with her. She resisted but made no complaint to those riding in the front seat. When she got home she related to her parents what had happened.

      92

      The Supreme Court of Nebraska, in holding the evidence insufficient to convict for rape, said:

      93
      Resistance or opposition by mere words is not enough; the resistance must be by acts, and must be reasonably proportionate to the strength and opportunities of the woman. She must resist the consummation of the act, and her resistance must not be a mere pretense, but must be in good faith, and must persist until the offense is consummated. [27 N.W.2d at 637.]
      94

       

      95

      In Kidd v. State, 97 Okla. Crim. 415, 266 P.2d 992 (1953), the rape took place in a car in an isolated spot. One assailant in that case told the victim that if she did not shut up he would kill her with a beer bottle. "By the time [the defendant] took over," the court concluded, "this victim was whipped down and demoralized." 266 P.2d at 1001.

      96

      These cases make plain that Hazel intended to require clear and cognizable evidence of force or the threat of force [252] sufficient to overcome or prevent resistance by the female before there would arise a jury question of whether the prosecutrix had a reasonable apprehension of harm.[*] The majority today departs from this requirement and places its imprimatur on the female's conclusory statements that she was in fear, as sufficient to support a conviction of rape.

      97

      It is significant to note that in each of the fourteen reported rape cases decided since Hazel, in which sufficiency of the evidence was the issue, the appellate courts of this State have adhered to the requirement that evidence of force or the threat of force overcoming or preventing resistance by the female must be demonstrated on the record to sustain a conviction. In two of those cases, Goldberg v. State, 41 Md. App. 58, 395 A.2d 1213, certiorari dismissed as improvidently granted, September 18, 1979, and Winegan v. State, 10 Md. App. 196, 268 A.2d 585 (1970), the convictions were reversed by the Court of Special Appeals. Goldberg concerned a student, professing to be a talent agent, who lured a young woman to an apartment upon the pretext of offering her a modeling job. She freely accompanied him, and though she protested verbally, she did not physically resist his advances. The Court of Special Appeals held:

      98
      The prosecutrix swore that the reasons for her fear of being killed if she did not accede to appellant's advances were two-fold: 1) she was alone with the appellant in a house with no buildings close by and no one to help her if she resisted, and 2) the appellant was much larger than she was. In the complete absence of any threatening words or actions by the appellant, these two factors, as a matter of law, are simply not enough to have created a reasonable fear of harm so as to preclude resistance and be "the equivalent of force". (Hazel v. State, supra, at 469.) Without proof of force, actual or constructive, evidenced by words or conduct of the defendant or those acting in consort with him, sexual intercourse is not rape. [41 Md. App. at 69.] [Footnote omitted.]
      99

       

      100

      [253] In Winegan, the appellant's conviction was reversed because, although the prosecutrix accompanied him to a boarding house and had sexual intercourse only because she thought he had a gun, he in fact had no gun nor at any time claimed to have one. It was on this basis, coupled with the facts that (1) the complainant at no time made outcry and (2) she followed him up the steps to his room, that the court concluded that her fear, if actually present, was so unreasonable as to preclude a conviction for rape.

      101

      Of the other twelve cases, four from this Court, not one contains the paucity of evidence regarding force or threat of force which exists in the case sub judice. In Johnson, Jr. v. State, 232 Md. 199, 192 A.2d 506 (1963), the court stated that although there was some evidence tending to indicate consent, which, standing alone, might have justified a judgment of acquittal, there was also evidence of violent acts and verbal threats on the part of the appellant, which, if believed, would have been the equivalent of such force as was reasonably calculated to create the apprehension of imminent bodily harm which could have impaired or overcome the victim's will to resist. In that case, the court related:

      102
      The acts alluded to took place at the parked car. The jury had testimony before it that obscene remarks and threats were directed to her and [her companion] while they were locked in the car, and that rocks were thrown at the windows, breaking them. [The prosecutrix] testified that one of the three men suggested shooting [her companion]. The victim may have submitted to sexual relations but that does not necessarily imply consent. [232 Md. at 204.]
      103

       

      104

      In Thompson v. State, 230 Md. 113, 186 A.2d 461 (1962), the victim was murdered and there was no question whether the act had been accomplished by force. The woman died as a result of injuries she sustained.

      105

      In Giles v. State, 229 Md. 370, 183 A.2d 359 (1962), appeal dismissed, 372 U.S. 767, 83 S.Ct. 1102, 10 L.Ed.2d 137 [254] (1963), as in Johnson, there was some evidence tending to indicate consent, "[b]ut there was also evidence of violent acts and verbal threats on the part of the defendants, which, if believed, would have been the equivalent of such force...." 229 Md. at 381.

      106

      In Lipscomb v. State, 223 Md. 599, 165 A.2d 918 (1960), as in Thompson, the victims were killed in the attempt or perpetration of rape.

      107

      In Blotkamp v. State, 45 Md. App. 64, 411 A.2d 1068 (1980), the Court of Special Appeals upheld a rape conviction in a case in which the victim was physically harmed in the assault. She "received substantial injuries to her genital area, requiring as noted, surgical suturing. This was force, raw, actual force; unnecessary force; force beyond that normally involved in completing the coital act." 45 Md. App. at 70 (emphasis supplied). In addition, the assailant made "pointed and repeated reference to having a knife, [which,] under the circumstances in which it was made, was certainly calculated — reasonably calculated — to create in [the victim's] mind a real apprehension of serious and imminent bodily injury if she did not comply...." 45 Md. App. at 70-71. At the time, the court concluded, the victim was absolutely helpless.

      108

      In Briscoe v. State, 40 Md. App. 120, 388 A.2d 153, cert. denied, 283 Md. 730 (1978), the facts were similar to those in Hazel. The assailant broke into the victim's home, pointed a shotgun at her and tied her up.

      109

      In Dove v. State, 33 Md. App. 601, 365 A.2d 1009 (1976), "the victim tried to run, but was leaped upon and smothered when she fell. There [was] nothing to indicate she would not have been injured more substantially if she had continued to resist his advances." 33 Md. App. at 617.

      110

      Along the same lines was Burnette v. State, 15 Md. App. 371, 290 A.2d 816 (1972). The victim "was alone with appellant who in a lonely spot assaulted and beat her." 15 Md. App. at 377. And in Coward v. State, 10 Md. App. 127, 268 A.2d 508, cert. denied, 259 Md. 730 (1970), the victim was driven to a wooded area by two men, and the driver threatened to break her neck.

      111

      [255] In Rice v. State, 9 Md. App. 552, 267 A.2d 261, cert. denied, 259 Md. 735 (1970), it was explained: "Where, as here, a woman submits to a stranger who has forced his way into her home and manhandled her, we do not look upon the case with the same eye as when intercourse occurs after an initially friendly encounter." 9 Md. App. at 560.

      112

      And in Walter v. State, 9 Md. App. 385, 264 A.2d 882, cert. denied, 258 Md. 731 (1970), and Lucas v. State, 2 Md. App. 590, 235 A.2d 780, cert. denied, 249 Md. 732 (1968), the circumstances were also persuasive to show fear induced by force or threats. In Walter a police officer subdued a woman who, realizing he had a gun, became hysterical. She was also afraid of his abrupt tone of voice. The court concluded that it was "apparent the accused deliberately placed the victim in a situation where she would be afraid, with the expectation she would thereby yield to his lustful demands without physical resistance." 9 Md. App. at 395. In Lucas the perpetrator threatened the victim and her four infant children with a knife.

      113

      In each of the above 12 cases there was either physical violence or specific threatening words or conduct which were calculated to create a very real and specific fear of immediate physical injury to the victim if she did not comply, coupled with the apparent power to execute those threats in the event of non-submission.

      114

      While courts no longer require a female to resist to the utmost or to resist where resistance would be foolhardy, they do require her acquiescence in the act of intercourse to stem from fear generated by something of substance. She may not simply say, "I was really scared," and thereby transform consent or mere unwillingness into submission by force. These words do not transform a seducer into a rapist. She must follow the natural instinct of every proud female to resist, by more than mere words, the violation of her person by a stranger or an unwelcomed friend. She must make it plain that she regards such sexual acts as abhorrent and repugnant to her natural sense of pride. She must resist unless the defendant has objectively manifested his intent to use physical force to accomplish his purpose. The law [256] regards rape as a crime of violence. The majority today attenuates this proposition. It declares the innocence of an at best distraught young woman. It does not demonstrate the defendant's guilt of the crime of rape.

      115

      My examination of the evidence in a light most favorable to the State reveals no conduct by the defendant reasonably calculated to cause the prosecutrix to be so fearful that she should fail to resist and thus, the element of force is lacking in the State's proof.

      116

      Here we have a full grown married woman who meets the defendant in a bar under friendly circumstances. They drink and talk together. She agrees to give him a ride home in her car. When they arrive at his house, located in an area with which she was unfamiliar but which was certainly not isolated, he invites her to come up to his apartment and she refuses. According to her testimony he takes her keys, walks around to her side of the car, and says "Now will you come up?" She answers, "yes." The majority suggests that "from her testimony the jury could have reasonably concluded that the taking of her keys was intended by Rusk to immobilize her alone, late at night, in a neighborhood with which she was unfamiliar...." But on what facts does the majority so conclude? There is no evidence descriptive of the tone of his voice; her testimony indicates only the bare statement quoted above. How can the majority extract from this conduct a threat reasonably calculated to create a fear of imminent bodily harm? There was no weapon, no threat to inflict physical injury.

      117

      She also testified that she was afraid of "the way he looked," and afraid of his statement, "come on up, come on up." But what can the majority conclude from this statement coupled with a "look" that remained undescribed? There is no evidence whatsoever to suggest that this was anything other than a pattern of conduct consistent with the ordinary seduction of a female acquaintance who at first suggests her disinclination.

      118

      After reaching the room she described what occurred as follows:

      119
      [257] I was still begging him to please let, you know, let me leave. I said, "you can get a lot of other girls down there, for what you want," and he just kept saying, "no," and then I was really scared, because I can't describe, you know, what was said. It was more the look in his eyes; and I said, at that point — I didn't know what to say; and I said, "If I do what you want, will you let me go without killing me?" Because I didn't know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat and started lightly to choke me; and I said "If I do what you want, will you let me go?" And he said, yes, and at that time, I proceeded to do what he wanted me to.
      120

       

      121

      The majority relies on the trial court's statement that the defendant responded affirmatively to her question "If I do what you want, will you let me go without killing me?" The majority further suggests that the jury could infer the defendant's affirmative response. The facts belie such inference since by the prosecutrix's own testimony the defendant made no response. He said nothing!

      122

      She then testified that she started to cry and he "started lightly to choke" her, whatever that means. Obviously, the choking was not of any persuasive significance. During this "choking" she was able to talk. She said "If I do what you want will you let me go?" It was at this point that the defendant said yes.

      123

      I find it incredible for the majority to conclude that on these facts, without more, a woman was forced to commit oral sex upon the defendant and then to engage in vaginal intercourse. In the absence of any verbal threat to do her grievous bodily harm or the display of any weapon and threat to use it, I find it difficult to understand how a victim could participate in these sexual activities and not be willing.

      124

      What was the nature and extent of her fear anyhow? She herself testified she was "fearful that maybe I had someone following me." She was afraid because she didn't know him [258] and she was afraid he was going to "rape" her. But there are no acts or conduct on the part of the defendant to suggest that these fears were created by the defendant or that he made any objective, identifiable threats to her which would give rise to this woman's failure to flee, summon help, scream, or make physical resistance.

      125

      As the defendant well knew, this was not a child. This was a married woman with children, a woman familiar with the social setting in which these two actors met. It was an ordinary city street, not an isolated spot. He had not forced his way into her car; he had not taken advantage of a difference in years or any state of intoxication or mental or physical incapacity on her part. He did not grapple with her. She got out of the car, walked with him across the street and followed him up the stairs to his room. She certainly had to realize that they were not going upstairs to play Scrabble.

      126

      Once in the room she waited while he went to the bathroom where he stayed for five minutes. In his absence, the room was lighted but she did not seek a means of escape. She did not even "try the door" to determine if it was locked. She waited.

      127

      Upon his return, he turned off the lights and pulled her on the bed. There is no suggestion or inference to be drawn from her testimony that he yanked her on the bed or in any manner physically abused her by this conduct. As a matter of fact there is no suggestion by her that he bruised or hurt her in any manner, or that the "choking" was intended to be disabling.

      128

      He then proceeded to unbutton her blouse and her bra. He did not rip her clothes off or use any greater force than was necessary to unfasten her garments. He did not even complete this procedure but requested that she do it, which she did "because he asked me to." However, she not only removed her clothing but took his clothes off, too.

      129

      Then for a while they lay together on the bed kissing, though she says she did not return his kisses. However, without protest she then proceeded to perform oral sex and later submitted to vaginal intercourse. After these activities [259] were completed, she asked to leave. They dressed and he walked her to her car and asked to see her again. She indicated that perhaps they might meet at Fells Point. He gave her directions home and returned to his apartment where the police found him later that morning.

      130

      The record does not disclose the basis for this young woman's misgivings about her experience with the defendant. The only substantive fear she had was that she would be late arriving home. The objective facts make it inherently improbable that the defendant's conduct generated any fear for her physical well-being.

      131

      In my judgment the State failed to prove the essential element of force beyond a reasonable doubt and, therefore, the judgment of conviction should be reversed.

      132

      Judges Smith and Digges have authorized me to state that they concur in the views expressed herein.

      133
      APPENDIX
      134

       

      135

      In the following cases rape convictions were overturned because the requirement of force necessary to affirmatively demonstrate lack of consent was not strictly complied with, or the facts were so sketchy or inherently improbable that this element could not be established, as a matter of law, beyond a reasonable doubt.

      136

      In Zamora v. State, 449 S.W.2d 43 (Tex. Crim. App. 1969), it was held that the evidence was insufficient to sustain a conviction of rape by force and threats where the sixteen-year-old prosecutrix, who had been engaging in sexual relations with the defendant stepfather for about six years, went to his bedroom to take him coffee, did not try to leave, took off part of her clothes at his request, made no outcry, and did not resist in any way, even though she knew what was going to happen when she sat on the bed. On appeal reference was made to certain threats which, if sufficient, would have excused the complainant's failure to resist. The defendant threatened to put the girl in a juvenile home and to whip her younger brother and sisters if she told her [260] mother. But the court explained, "the threats that were made occurred after the alleged act and were not made to cause the prosecutrix to yield, but to prevent her from informing her mother." 449 S.W.2d at 47 (emphasis supplied). The conviction was reversed.

      137

      In People v. Bales, 74 Cal. App.2d 732, 169 P.2d 262 (1946), the complaining witness testified that she met the appellant in a bar and later he physically forced her into his car and drove off. (The evidence in this respect was sufficient to sustain a charge of kidnapping.) Appellant next drove the woman down the highway and stopped the car off the road. He "came around to her side, and make a remark to the effect that he would then find out what kind of woman she was." 169 P.2d at 264. She testified "that she was `afraid' of the threat." Id. The court concluded:

      138
      There is an entire absence of evidence that she voiced any objection, made any appeal for help or tried to fight or struggle. There is no evidence of any force or threat by the appellant at that time, and no substantial evidence of any apprehension of immediate bodily harm accompanied by apparent power of execution. The evidence material to his charge fails to show either any reasonable resistance or any reasonable excuse for its absence. The old rule that there must be resistance to the utmost has been relaxed (People v. Cline, 117 Cal. App. 181, 3 P.2d 575), but not to the extent of doing away with the need of showing some resistance or, in proper cases, showing facts which fairly indicate some good reason for not resisting. [169 P.2d at 265.]
      139

       

      140

      In Farrar v. United States, 275 F.2d 868 (D.C. Cir.1959), opinion amended (1960), the words of Chief Judge Prettyman, speaking for the court, are better left to speak for themselves:

      141

      As I understand the law of rape, if no force is used and the girl in fact acquiesces, the acquiescence may nevertheless be deemed to be non-consent if it [261] is induced by fear; but the fear, to be sufficient for this purpose, must be based upon something of substance; and furthermore the fear must be of death or severe bodily harm. A girl cannot simply say, "I was scared," and thus transform an apparent consent into a legal non-consent which makes the man's act a capital offense. She must have a reasonable apprehension, as I understand the law, of something real; her fear must be not fanciful but substantial.

      In the case at bar there was an apparent acquiescence on the girl's part. She said she took off all her clothes, lay down on the bed, and had intercourse twice, some forty-five minutes apart. But she said she did this because she was scared. And she was quite clear, emphatic and insistent upon the cause of her fear; the man had a knife in his hand. The reason for her fear was tangible and definite. It was a knife, and it was in his hand. She so testified repeatedly.

      But she never saw any knife. Now it is perfectly apparent that, if this man had had a knife in his hand while he was doing all the things she said he did over this two or three hour period, she must have seen it. He could not have had a knife and have done all these things, with her watching him as she said she did, without her seeing the knife. As a matter of fact, at the close of the Government's testimony the trial judge struck from the record all the testimony concerning the knife, "leaving her testimony in that it was something that felt sharp and felt like a knife." The judge said if there had been a knife the girl would have seen it.

      ...

      Upon the foregoing facts and circumstances, when the knife disappeared from the record as a possible fact, the charge of rape disappeared, as I view the matter. The only basis for fear advanced by the prosecutrix was the knife; she suggested no alternative cause for fear. The only factual substance to [262] any of the intangible threats allegedly made by him to her was the knife. There was no force or violence and no threat or fear of force or violence except for the knife. The charge of rape rested upon the presence of the knife. The Government failed to prove a case of rape. [275 F.2d at 876-77.] [Footnotes omitted.]

      142

       

      143

      In Gonzales v. State, 516 P.2d 592 (Wyo. 1973), the complaining witness was 33 years old and the divorced mother of three children. She was working in a bar and defendant, someone she knew, came in shortly before closing and had been drinking. He asked her for a ride home and she refused, but he followed her and got into her car anyway. She testified she was nervous and scared at the time and made no further protest nor signalled with her horn. On a side road "[h]e asked her to stop `to go to the bathroom' and took the keys out of the ignition, telling her she would not drive off and leave him. She stayed in the car...." 516 P.2d at 593.

      144
      When he returned he told her he was going to rape her and she kept trying to talk him out of it. He told her he was getting mad at her and then put his fist against her face and said, "I'm going to do it. You can have it one way or the other." [Id.]
      145

       

      146

      There were no other threats. The witness testified she knew defendant's temper and was scared of him. She related several previous incidents to sustain her knowledge of his temper. The court concluded, "This is not a firm basis upon which to sketch a man of violence and one who would inspire fear." 516 P.2d at 593-94. It should be noted that although the conviction was reversed on other grounds, the court concluded that:

      147
      [i]nasmuch as the case must be retried in conformity with these principles [having quoted from Farrar and cited Winegan v. State, 10 Md. App. 196, 268 A.2d 585 (1970)] we do not deem it amiss to state it is not entirely fair to a trial court or to the defendant to rely on the sketchy showing and lack of detail presented at this trial. [516 P.2d at 595.]
      148

       

      149

      [263] There are a number of other cases in which the threats relied upon were found insufficient. In State v. Horne, 12 Utah, 2d 162, 364 P.2d 109 (1961), the prosecutrix was a 21-year-old married woman with two young children. They lived in a trailer. The defendant and she were acquainted, and he had visited her on previous occasions. On this particular night he entered her trailer uninvited and stated he was going to make love to her. She protested, she struggled, and her little girl, who had been asleep in her mother's bed, awoke and began crying. Finally he let her go to the bathroom and she refused to come out. He came and got her and they struggled some more. Eventually she gave in. She testified she was afraid for her children.

      150

      The court set forth the rule to be applied and applied it to the facts:

      151

      The old rule of "resistance to the utmost" is obsolete. The law does not require that the woman shall do more than her age, strength, the surrounding facts, and all attending circumstances make reasonable for her to do in order to manifest her opposition. However, in determining the sufficiency of the evidence, there must be considered the ease of assertion of the forcible accomplishment of the sexual act, with impossibility of defense except by direct denial, or of the proneness of the woman, when she finds the fact of her disgrace discovered or likely of discovery to minimize her fault by asserting force or violence, which had led courts to hold to a very strict rule of proof in such cases.

      ...

      The prosecutrix did not attempt to leave the trailer to seek help, although she had ample opportunity. When she went to the bathroom the defendant, according to her testimony, had already removed his pants and had made indecent proposals and advances. Yet, she did not avail herself of the opportunity to seek help. It is the natural impulse of every honest and virtuous female to flee from threatened outrage. Her explanation that she did [264] not want to leave the children alone with the defendant is a rather weak one, to say the least. It would have taken less than a minute to rouse her neighbors. Furthermore, she left the defendant with the children for 10 to 15 minutes while she was in the bathroom.

      ...

      There was no evidence of any threats made to either the prosecutrix or her children.

      We have carefully evaluated the testimony of the prosecutrix and conclude that it is so inherently improbable as to be unworthy of belief and that, upon objective analysis, it appears that reasonable minds could not believe beyond a reasonable doubt that the defendant was guilty. The jury's verdict cannot stand. [364 P.2d at 112-13.] [Footnotes omitted.]

      152

       

      153

      In Johnson v. State, 118 So.2d 806 (Fla. Dist. Ct. App. 1960), the evidence was insufficient to sustain a jury finding that the prosecutrix was forced against her will to have intercourse with defendant or that her fear was sufficient for the jury to find that defendant was guilty of rape through fear. In this case an eighteen-year-old high school student accepted a ride home from an acquaintance, which eventually led to her seduction. At no time did the defendant threaten her with any weapon. She screamed, but did not resist in any other way, nor attempt to flee. Quoting from State v. Remley, 237 S.W. 489, 492 (Mo. 1922), the Florida court stated:

      154
      The statements of plaintiff as to this occurrence must be viewed in the light of all the surrounding facts and circumstances. If the physical facts and all the circumstances appearing in evidence, together with the surrounding conditions, absolutely negative and destroy the force of such statements, then, in contemplation of law, such statements do not amount to any substantial evidence of the facts [265] to which they relate. We do not mean by this fact that the prosecutrix must be corroborated, for such is not the law of this State. State v. Marcks, 140 Mo. 656, [41 S.W. 973, 43 S.W. 1095]. But we do hold that statements made by a witness that are not only in conflict with the experience of common life and of the ordinary instincts and promptings of human nature, but negatived as well by the conduct of the witness, and the conditions and circumstances surrounding the occurrence to which they have application, are not sufficient to support the grave and serious charge of rape, and this is true whether the charge is made in either a civil or criminal proceeding. [118 So.2d at 815-16.]
      155

       

      156

      And in People v. Blevins, 98 Ill. App.2d 172, 240 N.E.2d 434 (1968), the evidence was insufficient where there were unexplained inconsistencies in the prosecution's case and the defendant was found peacefully asleep at the scene of the "crime" when arrested.

      157

      Even in the closest cases which have been upheld by other jurisdictions there existed more evidence of threat-induced fear of imminent bodily harm than existed in the present case.

      158

      In Brown v. State, 59 Wis. 200, 207 N.W.2d 602 (1973), the defendant threatened his victim with a water pistol. She had reason to believe it was real, and reason to believe he would shoot her if she did not comply.

      159

      In Johnson v. United States, 426 F.2d 651, 654 (D.C. Cir.1970), the victim's failure to resist "was based on a general fear of her assailant who had dragged her from her car, kept his arm around her neck when they stopped for gas, drove her to a deserted location and told her it would be useless for her to scream because no one would hear." (Emphasis in original.)

      160

      In Brown v. State, 581 P.2d 189 (Wyo. 1978), the victim was treated very roughly and bruised. She didn't resist because she was three or four months pregnant (which the defendant knew) and because she was afraid for both her own and her baby's lives.

      161

      [266] In Tryon v. State, 567 P.2d 290 (Wyo. 1970), the victim did not resist, out of fear. Although he did not threaten her, the conviction was sustained. The court explained:

      162

      We find here a child afraid of the dark alone with this defendant several miles from her home, very late at night — and with a man whom she knew had been drinking and quarreling with the woman for whom she had been baby-sitting. We cannot help but suggest that all of these elements could totally terrify a child of tender years or that the jury could have so reasonably inferred.

      ...

      Although the defendant did not express threats, wielded no weapons, and did not strike the victim, the force applied when considered in light of the facts previously related is sufficient to support the jury's finding of non-consent. [567 P.2d at 292-93.]

       

      163

      [1] Section 464E provides as follows:

      164

      "Undefined words or phrases in this subheading which describe elements of the common-law crime of rape shall retain their judicially determined meaning except to the extent expressly or by implication changed in this subheading."

      165

      [2] See, e.g., McDonald v. State, 225 Ark. 38, 279 S.W.2d 44 (1955); Wilson v. State, 49 Del. 37, 109 A.2d 381 (1954), cert. denied, 348 U.S. 983, 75 S.Ct. 574, 99 L.Ed. 765 (1955); Commonwealth v. Goldenberg, 338 Mass. 377, 155 N.E.2d 187, cert. denied, 359 U.S. 1001, 79 S.Ct. 1143, 3 L.Ed.2d 1032 (1959); State v. Catron, 317 Mo. 894, 296 S.W. 141 (1927); State v. Carter, 265 N.C. 626, 144 S.E.2d 826 (1965); Commonwealth v. Stephens, 143 Pa. Super. 394, 17 A.2d 919 (1941); R. Perkins, Perkins on Criminal Law, 160-61 (2d ed. 1969).

      166

      [3] See State v. Reinhold, 123 Ariz. 50, 597 P.2d 532 (1979); People v. Hunt, 72 Cal. App.3d 190, 139 Cal. Rptr. 675 (1977); State v. Dill, 42 Del. 533, 40 A.2d 443 (1944); Arnold v. United States, 358 A.2d 335 (D.C. App. 1976); Doyle v. State, 39 Fla. 155, 22 So. 272 (1897); Curtis v. State, 236 Ga. 362, 223 S.E.2d 721 (1976); People v. Murphy, 124 Ill. App.2d 71, 260 N.E.2d 386 (1970); Carroll v. State, 263 Ind. 86, 324 N.E.2d 809 (1975); Fields v. State, 293 So.2d 430 (Miss. 1974); State v. Beck, 368 S.W.2d 490 (Mo. 1963); Cascio v. State, 147 Neb. 1075, 25 N.W.2d 897 (1947); State v. Burns, 287 N.C. 102, 214 S.E.2d 56, cert. denied, 423 U.S. 933, 96 S.Ct. 288, 46 L.Ed.2d 264 (1975); State v. Verdone, 114 R.I. 613, 337 A.2d 804 (1975); Brown v. State, 576 S.W.2d 820 (Tex. Cr. App. 1979); Jones v. Com., 219 Va. 983, 252 S.E.2d 370 (1979); State v. Baker, 30 Wash.2d 601, 192 P.2d 839 (1948); Brown v. State, 581 P.2d 189 (Wyo. 1978).

      167

      Some jurisdictions do not require that the victim's fear be reasonably grounded. See Struggs v. State, 372 So.2d 49 (Ala. Cr. App.), cert. denied, 444 U.S. 936, 100 S.Ct. 285, 62 L.Ed.2d 195 (1979); Kirby v. State, 5 Ala. App. 128, 59 So. 374 (1912); Dinkens v. State, 92 Nev. 74, 546 P.2d 228 (1976), citing Hazel v. State, supra; State v. Herfel, 49 Wis.2d 513, 182 N.W.2d 232 (1971). See also Salsman v. Com., 565 S.W.2d 638 (Ky. App. 1978); State v. Havens, 264 N.W.2d 918 (S.D. 1978).

      168

      [*] See the attached Appendix for a further recitation of cases which support this view.

    • 2.2 State of New Jersey in the Interest of M.T.S.

      1
      129 N.J. 422 (1992)
      2
      609 A.2d 1266
      3
      STATE OF NEW JERSEY IN THE INTEREST OF M.T.S.
      4

      The Supreme Court of New Jersey.

      5
      Argued January 7, 1992.
      6
      Decided July 30, 1992.
      7

       

      8

      [424] Carol M. Henderson, Deputy Attorney General, argued the cause for appellant, State of New Jersey (Robert J. Del Tufo, Attorney General of New Jersey, attorney; Jessica S. Oppenheim, Deputy Attorney General, of counsel and on the brief).

      9

      Susan Herman, Assistant Deputy Public Defender, argued the cause for respondent M.T.S. (Wilfredo Caraballo, Public Defender, attorney).

      10

      The opinion of the Court was delivered by HANDLER, J.

      11

      Under New Jersey law a person who commits an act of sexual penetration using physical force or coercion is guilty of second-degree sexual assault. The sexual assault statute does not define the words "physical force." The question posed by [425] this appeal is whether the element of "physical force" is met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result.

      12

      That issue is presented in the context of what is often referred to as "acquaintance rape." The record in the case discloses that the juvenile, a seventeen-year-old boy, engaged in consensual kissing and heavy petting with a fifteen-year-old girl and thereafter engaged in actual sexual penetration of the girl to which she had not consented. There was no evidence or suggestion that the juvenile used any unusual or extra force or threats to accomplish the act of penetration.

      13

      The trial court determined that the juvenile was delinquent for committing a sexual assault. The Appellate Division reversed the disposition of delinquency, concluding that non-consensual penetration does not constitute sexual assault unless it is accompanied by some level of force more than that necessary to accomplish the penetration. 247 N.J. Super. 254, 588 A.2d 1282 (1991). We granted the State's petition for certification. 126 N.J. 341, 598 A.2d 897 (1991).

      14
      I
      15

       

      16

      The issues in this case are perplexing and controversial. We must explain the role of force in the contemporary crime of sexual assault and then define its essential features. We then must consider what evidence is probative to establish the commission of a sexual assault. The factual circumstances of this case expose the complexity and sensitivity of those issues and underscore the analytic difficulty of those seemingly-straightforward legal questions.

      17

      On Monday, May 21, 1990, fifteen-year-old C.G. was living with her mother, her three siblings, and several other people, including M.T.S. and his girlfriend. A total of ten people resided in the three-bedroom town-home at the time of the incident. M.T.S., then age seventeen, was temporarily residing at the home with the permission of the C.G.'s mother; he slept [426] downstairs on a couch. C.G. had her own room on the second floor. At approximately 11:30 p.m. on May 21, C.G. went upstairs to sleep after having watched television with her mother, M.T.S., and his girlfriend. When C.G. went to bed, she was wearing underpants, a bra, shorts, and a shirt. At trial, C.G. and M.T.S. offered very different accounts concerning the nature of their relationship and the events that occurred after C.G. had gone upstairs. The trial court did not credit fully either teenager's testimony.

      18

      C.G. stated that earlier in the day, M.T.S. had told her three or four times that he "was going to make a surprise visit up in [her] bedroom." She said that she had not taken M.T.S. seriously and considered his comments a joke because he frequently teased her. She testified that M.T.S. had attempted to kiss her on numerous other occasions and at least once had attempted to put his hands inside of her pants, but that she had rejected all of his previous advances.

      19

      C.G. testified that on May 22, at approximately 1:30 a.m., she awoke to use the bathroom. As she was getting out of bed, she said, she saw M.T.S., fully clothed, standing in her doorway. According to C.G., M.T.S. then said that "he was going to tease [her] a little bit." C.G. testified that she "didn't think anything of it"; she walked past him, used the bathroom, and then returned to bed, falling into a "heavy" sleep within fifteen minutes. The next event C.G. claimed to recall of that morning was waking up with M.T.S. on top of her, her underpants and shorts removed. She said "his penis was into [her] vagina." As soon as C.G. realized what had happened, she said, she immediately slapped M.T.S. once in the face, then "told him to get off [her], and get out." She did not scream or cry out. She testified that M.T.S. complied in less than one minute after being struck; according to C.G., "he jumped right off of [her]." She said she did not know how long M.T.S. had been inside of her before she awoke.

      20

      [427] C.G. said that after M.T.S. left the room, she "fell asleep crying" because "[she] couldn't believe that he did what he did to [her]." She explained that she did not immediately tell her mother or anyone else in the house of the events of that morning because she was "scared and in shock." According to C.G., M.T.S. engaged in intercourse with her "without [her] wanting it or telling him to come up [to her bedroom]." By her own account, C.G. was not otherwise harmed by M.T.S.

      21

      At about 7:00 a.m., C.G. went downstairs and told her mother about her encounter with M.T.S. earlier in the morning and said that they would have to "get [him] out of the house." While M.T.S. was out on an errand, C.G.'s mother gathered his clothes and put them outside in his car; when he returned, he was told that "[he] better not even get near the house." C.G. and her mother then filed a complaint with the police.

      22

      According to M.T.S., he and C.G. had been good friends for a long time, and their relationship "kept leading on to more and more." He had been living at C.G.'s home for about five days before the incident occurred; he testified that during the three days preceding the incident they had been "kissing and necking" and had discussed having sexual intercourse. The first time M.T.S. kissed C.G., he said, she "didn't want him to, but she did after that." He said C.G. repeatedly had encouraged him to "make a surprise visit up in her room."

      23

      M.T.S. testified that at exactly 1:15 a.m. on May 22, he entered C.G.'s bedroom as she was walking to the bathroom. He said C.G. soon returned from the bathroom, and the two began "kissing and all," eventually moving to the bed. Once they were in bed, he said, they undressed each other and continued to kiss and touch for about five minutes. M.T.S. and C.G. proceeded to engage in sexual intercourse. According to M.T.S., who was on top of C.G., he "stuck it in" and "did it [thrust] three times, and then the fourth time [he] stuck it in, that's when [she] pulled [him] off of her." M.T.S. said that as [428] C.G. pushed him off, she said "stop, get off," and he "hopped off right away."

      24

      According to M.T.S., after about one minute, he asked C.G. what was wrong; she replied with a back-hand to his face. He recalled asking C.G. what was wrong a second time, and her replying, "how can you take advantage of me or something like that." M.T.S. said that he proceeded to get dressed and told C.G. to calm down, but that she then told him to get away from her and began to cry. Before leaving the room, he told C.G., "I'm leaving ... I'm going with my real girlfriend, don't talk to me ... I don't want nothing to do with you or anything, stay out of my life ... don't tell anybody about this ... it would just screw everything up." He then walked downstairs and went to sleep.

      25

      On May 23, 1990, M.T.S. was charged with conduct that if engaged in by an adult would constitute second-degree sexual assault of the victim, contrary to N.J.S.A. 2C:14-2c(1). In addition, he faced unrelated charges for third-degree theft of movable property, contrary to N.J.S.A. 2C:20-3a, third-degree escape, contrary to N.J.S.A. 2C:29-5, and fourth-degree criminal trespass, contrary to N.J.S.A. 2C:18-3.

      26

      Following a two-day trial on the sexual assault charge, M.T.S. was adjudicated delinquent. After reviewing the testimony, the court concluded that the victim had consented to a session of kissing and heavy petting with M.T.S. The trial court did not find that C.G. had been sleeping at the time of penetration, but nevertheless found that she had not consented to the actual sexual act. Accordingly, the court concluded that the State had proven second-degree sexual assault beyond a reasonable doubt. On appeal, following the imposition of suspended sentences on the sexual assault and the other remaining charges, the Appellate Division determined that the absence of force beyond that involved in the act of sexual penetration precluded a finding of second-degree sexual assault. It therefore reversed [429] the juvenile's adjudication of delinquency for that offense. 247 N.J. Super. at 260-61, 588 A.2d 1282.

      27
      II
      28

       

      29

      The New Jersey Code of Criminal Justice, N.J.S.A. 2C:14-2c(1), defines "sexual assault" as the commission "of sexual penetration" "with another person" with the use of "physical force or coercion."[1] An unconstrained reading of the statutory language indicates that both the act of "sexual penetration" and the use of "physical force or coercion" are separate and distinct elements of the offense. See Medical Soc. v. Department of Law & Pub. Safety, 120 N.J. 18, 26, 575 A.2d 1348 (1990) (declaring that no part of a statute should be considered meaningless or superfluous). Neither the definitions section of N.J.S.A. 2C:14-1 to -8, nor the remainder of the Code of Criminal Justice provides assistance in interpreting the words "physical force." The initial inquiry is, therefore, whether the statutory words are unambiguous on their face and can be [430] understood and applied in accordance with their plain meaning. The answer to that inquiry is revealed by the conflicting decisions of the lower courts and the arguments of the opposing parties. The trial court held that "physical force" had been established by the sexual penetration of the victim without her consent. The Appellate Division believed that the statute requires some amount of force more than that necessary to accomplish penetration.

      30

      The parties offer two alternative understandings of the concept of "physical force" as it is used in the statute. The State would read "physical force" to entail any amount of sexual touching brought about involuntarily. A showing of sexual penetration coupled with a lack of consent would satisfy the elements of the statute. The Public Defender urges an interpretation of "physical force" to mean force "used to overcome lack of consent." That definition equates force with violence and leads to the conclusion that sexual assault requires the application of some amount of force in addition to the act of penetration.

      31

      Current judicial practice suggests an understanding of "physical force" to mean "any degree of physical power or strength used against the victim, even though it entails no injury and leaves no mark." Model Jury Charges, Criminal 3 (revised Mar. 27, 1989). Resort to common experience or understanding does not yield a conclusive meaning. The dictionary provides several definitions of "force," among which are the following: (1) "power, violence, compulsion, or constraint exerted upon or against a person or thing," (2) "a general term for exercise of strength or power, esp. physical, to overcome resistance," or (3) "strength or power of any degree that is exercised without justification or contrary to law upon a person or thing." Webster's Third New International Dictionary 887 (1961).

      32

      Thus, as evidenced by the disagreements among the lower courts and the parties, and the variety of possible usages, the statutory words "physical force" do not evoke a single [431] meaning that is obvious and plain. Hence, we must pursue avenues of construction in order to ascertain the meaning of that statutory language. Those avenues are well charted. When a statute is open to conflicting interpretations, the court seeks the underlying intent of the legislature, relying on legislative history and the contemporary context of the statute. Monmouth County v. Wissell, 68 N.J. 35, 41-42, 342 A.2d 199 (1975). With respect to a law, like the sexual assault statute, that "alters or amends the previous law or creates or abolishes types of actions, it is important, in discovering the legislative intent, to ascertain the old law, the mischief and the proposed remedy." Grobart v. Grobart, 5 N.J. 161, 166, 74 A.2d 294 (1950); accord Key Agency v. Continental Casualty Co., 31 N.J. 98, 155 A.2d 547 (1959) (noting that ambiguous statutory phrases should be interpreted in light of the occasion and necessity of the law, mischief felt, and remedy in view). We also remain mindful of the basic tenet of statutory construction that penal statutes are to be strictly construed in favor of the accused. Nevertheless, the construction must conform to the intent of the Legislature. See State v. Des Marets, 92 N.J. 62, 68-70, 455 A.2d 1074 (1983); State v. Brown, 22 N.J. 405, 126 A.2d 161 (1956).

      33

      The provisions proscribing sexual offenses found in the Code of Criminal Justice, N.J.S.A. 2C:14-2c(1), became effective in 1979, and were written against almost two hundred years of rape law in New Jersey. The origin of the rape statute that the current statutory offense of sexual assault replaced can be traced to the English common law. Under the common law, rape was defined as "carnal knowledge of a woman against her will." Cynthia A. Wicktom, Note, Focusing on the Offender's Forceful Conduct: A Proposal for the Redefinition of Rape Laws, 56 Geo.Wash.L.Rev. 399, 401 (1988) (Offender's Forceful Conduct). American jurisdictions generally adopted the English view, but over time states added the requirement that the carnal knowledge have been forcible, apparently in order to prove that the act was against the victim's will. Id. at 402 [432] (citing Rollin Perkins & Ronald Boyce, Criminal Law 211 (3d ed. 1982)). As of 1796, New Jersey statutory law defined rape as "carnal knowledge of a woman, forcibly and against her will." Crimes Act of March 18, 1796 § 8, [1821] N.J.Rev.Laws (Pennington) 246. Those three elements of rape — carnal knowledge, forcibly, and against her will — remained the essential elements of the crime until 1979. Leigh Bienen, Rape III — National Developments in Rape Reform Legislation, 6 Women's Rts.L.Rep. 170, 207 (1981) (Bienen, Rape III).

      34

      Under traditional rape law, in order to prove that a rape had occurred, the state had to show both that force had been used and that the penetration had been against the woman's will. Force was identified and determined not as an independent factor but in relation to the response of the victim, which in turn implicated the victim's own state of mind. "Thus, the perpetrator's use of force became criminal only if the victim's state of mind met the statutory requirement. The perpetrator could use all the force imaginable and no crime would be committed if the state could not prove additionally that the victim did not consent." National Institute of Law Enforcement and Criminal Justice, Forcible Rape — An Analysis of Legal Issues 5 (March 1978) (Forcible Rape). Although the terms "non-consent" and "against her will" were often treated as equivalent, see, e.g., Wilson v. State, 109 A.2d 381 (Del. 1954), cert. den., 348 U.S. 983, 75 S.Ct. 574, 99 L.Ed. 765 (1955), under the traditional definition of rape, both formulations squarely placed on the victim the burden of proof and of action. Effectively, a woman who was above the age of consent had actively and affirmatively to withdraw that consent for the intercourse to be against her will. As a Delaware court stated, "If sexual intercourse is obtained by milder means, or with the consent or silent submission of the female, it cannot constitute the crime of rape." State v. Brown, 83 A. 1083, 1084 (O.T. 1912); 75 C.J.S. Rape § 11-12 (1952).

      35

      The presence or absence of consent often turned on credibility. To demonstrate that the victim had not consented to the [433] intercourse, and also that sufficient force had been used to accomplish the rape, the state had to prove that the victim had resisted. According to the oft-quoted Lord Hale, to be deemed a credible witness, a woman had to be of good fame, disclose the injury immediately, suffer signs of injury, and cry out for help. 1 Matthew Hale, History of the Pleas of the Crown 633 (1st ed. 1847). Courts and commentators historically distrusted the testimony of victims, "assuming that women lie about their lack of consent for various reasons: to blackmail men, to explain the discovery of a consensual affair, or because of psychological illness." Offender's Forceful Conduct, supra, 56 Geo. Wash.L.Rev. at 403. Evidence of resistance was viewed as a solution to the credibility problem; it was the "outward manifestation of nonconsent, [a] device for determining whether a woman actually gave consent." Note, The Resistance Standard in Rape Legislation, 18 Stan.L.Rev. 680, 689 (1966).

      36

      The resistance requirement had a profound effect on the kind of conduct that could be deemed criminal and on the type of evidence needed to establish the crime. See, e.g., State v. Brown, 127 Wis. 193, 106 N.W. 536 (1906) (overturning forcible rape conviction based on inadequate resistance by the victim); People v. Dohring, 59 N.Y. 374 (1874). Courts assumed that any woman who was forced to have intercourse against her will necessarily would resist to the extent of her ability. People v. Barnes, 42 Cal.3d 284, 228 Cal. Rptr. 228, 721 P.2d 110, 117 (1986) (observing that "[h]istorically, it was considered inconceivable that a woman who truly did not consent to sexual intercourse would not meet force with force"). In many jurisdictions the requirement was that the woman have resisted to the utmost. "Rape is not committed unless the woman oppose the man to the utmost limit of her power." People v. Carey, 223 N.Y. 519, 119 N.E. 83 (N.Y. 1918). "[A] mere tactical surrender in the face of an assumed superior physical force is not enough. Where the penalty for the defendant may be supreme, so must resistance be unto the uttermost." Moss v. State, 208 Miss. 531, 45 So.2d 125, 126 (1950). Other states [434] followed a "reasonableness" standard, while some required only sufficient resistance to make non-consent reasonably manifest. Forcible Rape, supra, at 5.

      37

      At least by the 1960s courts in New Jersey followed a standard for establishing resistance that was somewhat less drastic than the traditional rule. In State v. Harris, 70 N.J. Super. 9, 174 A.2d 645 (1961), the Appellate Division recognized that the "to the uttermost" test was obsolete. Id. at 16, 174 A.2d 645. "The fact that a victim finally submits does not necessarily imply that she consented. Submission to a compelling force, or as a result of being put in fear, is not consent." Id. at 16-17, 174 A.2d 645. Nonetheless, the "resistance" requirement remained an essential feature of New Jersey rape law. Thus, in 1965 the Appellate Division stated: "[W]e have rejected the former test that a woman must resist `to the uttermost.' We only require that she resist as much as she possibly can under the circumstances." State v. Terry, 89 N.J. Super. 445, 449, 215 A.2d 374.

      38

      The judicial interpretation of the pre-reform rape law in New Jersey, with its insistence on resistance by the victim, greatly minimized the importance of the forcible and assaultive aspect of the defendant's conduct. Rape prosecutions turned then not so much on the forcible or assaultive character of the defendant's actions as on the nature of the victim's response. Note, Recent Statutory Developments in the Definition of Forcible Rape, 61 Va.L.Rev. 1500, 1505-07 (1975) (Definition of Forcible Rape). "[I]f a woman assaulted is physically and mentally able to resist, is not terrified by threats, and is not in a place and position that resistance would have been useless, it must be shown that she did, in fact, resist the assault." State v. Terry, supra, 89 N.J. Super. at 449, 215 A.2d 374. Under the pre-reform law, the resistance offered had to be "in good faith and without pretense, with an active determination to prevent the violation of her person, and must not be merely passive and perfunctory." State v. Terry, supra, 89 N.J. Super. at 450, 215 A.2d 374. That the law put the rape victim on trial was clear.

      39

      [435] The resistance requirement had another untoward influence on traditional rape law. Resistance was necessary not only to prove non-consent but also to demonstrate that the force used by the defendant had been sufficient to overcome the victim's will. The amount of force used by the defendant was assessed in relation to the resistance of the victim. See, e.g., Tex.Penal Code Ann. § 21.02 (1974) (repealed 1983) (stating that "the amount of force necessary to negate consent is a relative matter to be judged under all the circumstances, the most important of which is the resistance of the female"). In New Jersey the amount of force necessary to establish rape was characterized as "`the degree of force sufficient to overcome any resistance that had been put up by the female.'" State v. Terry, supra, 89 N.J. Super. at 451, 215 A.2d 374 (quoting jury charge by trial court). Resistance, often demonstrated by torn clothing and blood, was a sign that the defendant had used significant force to accomplish the sexual intercourse. Thus, if the defendant forced himself on a woman, it was her responsibility to fight back, because force was measured in relation to the resistance she put forward. Only if she resisted, causing him to use more force than was necessary to achieve penetration, would his conduct be criminalized. See, e.g., Moss v. State, supra, 45 So.2d at 125. Indeed, the significance of resistance as the proxy for force is illustrated by cases in which victims were unable to resist; in such cases the force incident to penetration was deemed sufficient to establish the "force" element of the offense. E.g., Pomeroy v. State, 94 Ind. 96 (1884); State v. Atkins, 292 S.W. 422 (Mo. 1926); Lee v. State, 322 So.2d 751, 752 (Miss. 1975).

      40

      The importance of resistance as an evidentiary requirement set the law of rape apart from other common-law crimes, particularly in the eyes of those who advocated reform of rape law in the 1970s. See, e.g., Note, The Victim in a Forcible Rape Case: A Feminist View, 11 Am.Crim.L.Rev. 335, 346 (1973). However, the resistance requirement was not the only special rule applied in the rape context. A host of evidentiary [436] rules and standards of proof distinguished the legal treatment of rape from the treatment of other crimes. Many jurisdictions held that a rape conviction could not be sustained if based solely on the uncorroborated testimony of the victim. See, e.g., Allison v. United States, 409 F.2d 445, 448 (D.C. Cir.1969). Often judges added cautionary instructions to jury charges warning jurors that rape was a particularly difficult charge to prove. Courts in New Jersey allowed greater latitude in cross-examining rape victims and in delving into their backgrounds than in ordinary cases. State v. Conner, 97 N.J.L. 423, 424, 118 A. 211 (Sup.Ct. 1922). Rape victims were required to make a prompt complaint or have their allegations rejected or viewed with great skepticism. Some commentators suggested that there be mandatory psychological testing of rape victims. E.g., 3A Wigmore on Evidence § 924a (Chadbourn rev. ed. 1970).

      41

      During the 1970s feminists and others criticized the stereotype that rape victims were inherently more untrustworthy than other victims of criminal attack. See, e.g., House [of Delegates] Urges New Definition of Rape, 61 A.B.A.J. 464 (1975); Note, Toward a Consent Standard in the Law of Rape, 43 U.Chi.L.Rev. 613, 638 (1976) (Toward a Consent Standard); see also People v. Barnes, supra, 721 P.2d at 117 (discussing influence of distrust of female rape victims on legal standards). Reformers condemned such suspicion as discrimination against victims of rape. See, e.g., The Legal Bias against Rape Victims, 61 A.B.A.J. 464 (1975). They argued that "[d]istrust of the complainant's credibility [had] led to an exaggerated insistence on evidence of resistance," resulting in the victim rather than the defendant being put on trial. Toward a Consent Standard, supra 43 U.Chi.L.Rev. at 626. Reformers also challenged the assumption that a woman would seduce a man and then, in order to protect her virtue, claim to have been raped. If women are no less trustworthy than other purported victims of criminal attack, the reformers argued, then women should face no additional burdens of proving that they had not consented to or had actively resisted the assault. [437] See Linda Brookover Bourque, Defining Rape 110 (1989) (declaring objective of reform to "bring[] legal standards for rape cases in line with those used in other violent crimes by normalizing requirements for evidence").

      42

      To refute the misguided belief that rape was not real unless the victim fought back, reformers emphasized empirical research indicating that women who resisted forcible intercourse often suffered far more serious injury as a result. Menachem Amir, Patterns in Forcible Rape, 164-65, 169-171 (1971); Definition of Forcible Rape, supra, 61 Va.L.Rev. at 1506; Note, Elimination of the Resistance Requirement and Other Rape Law Reforms: The New York Experience, 47 Alb.L.Rev. 871, 872 (1983). That research discredited the assumption that resistance to the utmost or to the best of a woman's ability was the most reasonable or rational response to a rape.

      43

      The research also helped demonstrate the underlying point of the reformers that the crime of rape rested not in the overcoming of a woman's will or the insult to her chastity but in the forcible attack itself — the assault on her person. Reformers criticized the conception of rape as a distinctly sexual crime rather than a crime of violence. They emphasized that rape had its legal origins in laws designed to protect the property rights of men to their wives and daughters. Susan Brownmiller, Against Our Will: Men, Women, and Rape 377 (1975); Acquaintance Rape: The Hidden Crime 318 (Andrea Parrot & Laurie Bechhofer, eds. 1991). Although the crime had evolved into an offense against women, reformers argued that vestiges of the old law remained, particularly in the understanding of rape as a crime against the purity or chastity of a woman. Definition of Forcible Rape, supra, 61 Va.L.Rev. at 1506. The burden of protecting that chastity fell on the woman, with the state offering its protection only after the woman demonstrated that she had resisted sufficiently.

      44

      That rape under the traditional approach constituted a sexual rather than an assaultive crime is underscored by the spousal [438] exemption. According to the traditional reasoning, a man could not rape his wife because consent to sexual intercourse was implied by the marriage contract. See, e.g., State v. Smith, 85 N.J. 193, 426 A.2d 38 (1981); see also Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 184, 207 (noting that common-law principles excluded spouses from prosecution in New Jersey as in most other jurisdictions). Therefore, sexual intercourse between spouses was lawful regardless of the force or violence used to accomplish it. Offender's Forceful Conduct, supra, 58 Geo.Wash.L.Rev. at 402; Note, To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment, 99 Harv.L.Rev. 1255, 1258-60 (1986); see also Hale, supra, at 629 (noting that "a `ravished' woman could `redeem' the convicted offender and save him from execution by marrying him").

      45

      Critics of rape law agreed that the focus of the crime should be shifted from the victim's behavior to the defendant's conduct, and particularly to its forceful and assaultive, rather than sexual, character. Reformers also shared the goals of facilitating rape prosecutions and of sparing victims much of the degradation involved in bringing and trying a charge of rape. There were, however, differences over the best way to redefine the crime. Some reformers advocated a standard that defined rape as unconsented-to sexual intercourse, Towards a Consent Standard, supra, 43 U.Chi.L.Rev. 613; others urged the elimination of any reference to consent from the definition of rape, Offender's Forceful Conduct, supra, 56 Geo.Wash.L.Rev. at 401. Nonetheless, all proponents of reform shared a central premise: that the burden of showing non-consent should not fall on the victim of the crime. In dealing with the problem of consent the reform goal was not so much to purge the entire concept of consent from the law as to eliminate the burden that had been placed on victims to prove they had not consented. Ibid.

      46

      Similarly, with regard to force, rape law reform sought to give independent significance to the forceful or assaultive conduct of the defendant and to avoid a definition of force that [439] depended on the reaction of the victim. Traditional interpretations of force were strongly criticized for failing to acknowledge that force may be understood simply as the invasion of "bodily integrity." Susan Estrich, Rape, 95 Yale L.J. 1087, 1105, (1986). In urging that the "resistance" requirement be abandoned, reformers sought to break the connection between force and resistance.

      47
      III
      48

       

      49

      The history of traditional rape law sheds clearer light on the factors that became most influential in the enactment of current law dealing with sexual offenses. The circumstances surrounding the actual passage of the current law reveal that it was conceived as a reform measure reconstituting the law to address a widely-sensed evil and to effectuate an important public policy. Those circumstances are highly relevant in understanding legislative intent and in determining the objectives of the current law.

      50

      In October 1971, the New Jersey Criminal Law Revision Commission promulgated a Final Report and Commentary on its proposed New Jersey Penal Code. New Jersey Criminal Law Revision Commission, The New Jersey Penal Code, Vol. I: Report and Penal Code (1971). The proposed Code substantially followed the American Law Institute's Model Penal Code (MPC) with respect to sexual offenses. See M.P.C. §§ 213.1 to 213.4. The proposed provisions did not present a break from traditional rape law. They would have established two principal sexual offenses: aggravated rape, a first-degree or second-degree crime involving egregious circumstances; and rape, a crime of the third-degree. 1971 Penal Code, § 2C:14-1(a)(1). Rape was defined as sexual intercourse with a female to which she was compelled to submit by any threat that would prevent resistance by a woman of ordinary resolution. Id. at § 14-1(b)(1). The comments to the MPC, on which the proposed Code was based, state that "[c]ompulsion plainly implies non-consent," [440] and that the words "compels to submit" require more than "a token initial resistance." A.L.I., MPC, § 213.1, comments at 306 (revised commentary 1980).

      51

      The Legislature did not endorse the Model Penal Code approach to rape. Rather, it passed a fundamentally different proposal in 1978 when it adopted the Code of Criminal Justice. L. 1978, c. 95 § 2C:14-1 to -7; N.J.S.A. 2C:14-1 to -7. The new statutory provisions covering rape were formulated by a coalition of feminist groups assisted by the National Organization of Women (NOW) National Task Force on Rape. Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 207. Both houses of the Legislature adopted the NOW bill, as it was called, without major changes and Governor Byrne signed it into law on August 10, 1978. Id. at 207-08. The NOW bill had been modeled after the 1976 Philadelphia Center for Rape Concern Model Sex Offense Statute. Leigh Bienen, Rape II, 3 Women's Rts.L.Rep. 90 (1977). The Model Sex Offense Statute in turn had been based on selected provisions of the Michigan Criminal Sexual Conduct Statute, Mich. Stat. Ann. § 28.788(4)(b) (Callaghan 1990), [M.C.L.A. § 750.520d] and on the reform statutes in New Mexico, Minnesota, and Wisconsin. Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 207. The stated intent of the drafters of the Philadelphia Center's Model Statute had been to remove all features found to be contrary to the interests of rape victims. John M. Cannel, New Jersey Criminal Code Annotated 279 (1991). According to its proponents the statute would "`normalize the law. We are no longer saying rape victims are likely to lie. What we are saying is that rape is just like other violent crimes.'" Stuart Marques, Women's Coalition Lauds Trenton Panel: Tough Rape Law Revisions Advance, Newark Star Ledger, (May 10, 1978) at 1 (quoting Roberta Kaufman, New Jersey Coalition Against Rape).

      52

      Since the 1978 reform, the Code has referred to the crime that was once known as "rape" as "sexual assault." The crime now requires "penetration," not "sexual intercourse." It requires "force" or "coercion," not "submission" or "resistance." [441] It makes no reference to the victim's state of mind or attitude, or conduct in response to the assault. It eliminates the spousal exception based on implied consent. It emphasizes the assaultive character of the offense by defining sexual penetration to encompass a wide range of sexual contacts, going well beyond traditional "carnal knowledge."[2] Consistent with the assaultive character, as opposed to the traditional sexual character, of the offense, the statute also renders the crime gender-neutral: both males and females can be actors or victims.

      53

      The reform statute defines sexual assault as penetration accomplished by the use of "physical force" or "coercion," but it does not define either "physical force" or "coercion" or enumerate examples of evidence that would establish those elements. Some reformers had argued that defining "physical force" too specifically in the sexual offense statute might have the effect of limiting force to the enumerated examples. Bienen, Rape III, supra, 6 Women's Rts.L.Rep. at 181. The task of defining "physical force" therefore was left to the courts.

      54

      That definitional task runs the risk of undermining the basic legislative intent to reformulate rape law. See Susan Estrich, Real Rape 60 (1987) (noting that under many modern formulations of rape "[t]he prohibition of force or `forcible compulsion' ends up being defined in terms of a woman's resistance"). That risk was encountered by the Michigan Supreme Court in People v. Patterson, 428 Mich. 502, 410 N.W.2d 733 (1987). That court considered the sufficiency of the evidence of force or coercion in the prosecution of a sexual contact charge against a defendant who had placed his hands on the genital area of a seventeen-year-old girl while she was sleeping. A majority of [442] the court concluded that the defendant had not used force as required by the statute because there was "no evidence of physical overpowering ... [and] there was no submission." Id. 410 N.W.2d at 740. Justice Boyle, in dissent, soundly criticized the majority's position as a distortion of the legislature's intent to protect the sexual privacy of persons from the use of force, coercion, or other undue advantage. Concluding that the statute did not require a showing of any extra force, Justice Boyle pointed out that in "defin[ing] force by measuring the degree of resistance by the victim," the majority had effectively "reintroduc[ed] the resistance requirement, when the proper focus ought to be on whether the contact was unpermitted." Id. at 747-49.

      55

      Unlike the Michigan statute interpreted in Patterson, the New Jersey Code of Criminal Justice does not refer to force in relation to "overcoming the will" of the victim, or to the "physical overpowering" of the victim, or the "submission" of the victim. It does not require the demonstrated non-consent of the victim. As we have noted, in reforming the rape laws, the Legislature placed primary emphasis on the assaultive nature of the crime, altering its constituent elements so that they focus exclusively on the forceful or assaultive conduct of the defendant.

      56

      The Legislature's concept of sexual assault and the role of force was significantly colored by its understanding of the law of assault and battery. As a general matter, criminal battery is defined as "the unlawful application of force to the person of another." 2 Wayne LaFave & Austin Scott, Criminal Law, § 7.15 at 301 (1986). The application of force is criminal when it results in either (a) a physical injury or (b) an offensive touching. Id. at 301-02. Any "unauthorized touching of another [is] a battery." Perna v. Pirozzi, 92 N.J. 446, 462, 457 A.2d 431 (1983). Thus, by eliminating all references to the victim's state of mind and conduct, and by broadening the definition of penetration to cover not only sexual intercourse [443] between a man and a woman but a range of acts that invade another's body or compel intimate contact, the Legislature emphasized the affinity between sexual assault and other forms of assault and battery.

      57

      The intent of the Legislature to redefine rape consistent with the law of assault and battery is further evidenced by the legislative treatment of other sexual crimes less serious than and derivative of traditional rape. The Code redefined the offense of criminal sexual contact to emphasize the involuntary and personally-offensive nature of the touching. N.J.S.A. 2C:14-1(d). Sexual contact is criminal under the same circumstances that render an act of sexual penetration a sexual assault, namely, when "physical force" or "coercion" demonstrates that it is unauthorized and offensive. N.J.S.A. 2C:14-3(b). Thus, just as any unauthorized touching is a crime under traditional laws of assault and battery, so is any unauthorized sexual contact a crime under the reformed law of criminal sexual contact, and so is any unauthorized sexual penetration a crime under the reformed law of sexual assault.

      58

      The understanding of sexual assault as a criminal battery, albeit one with especially serious consequences, follows necessarily from the Legislature's decision to eliminate non-consent and resistance from the substantive definition of the offense. Under the new law, the victim no longer is required to resist and therefore need not have said or done anything in order for the sexual penetration to be unlawful. The alleged victim is not put on trial, and his or her responsive or defensive behavior is rendered immaterial. We are thus satisfied that an interpretation of the statutory crime of sexual assault to require physical force in addition to that entailed in an act of involuntary or unwanted sexual penetration would be fundamentally inconsistent with the legislative purpose to eliminate any consideration of whether the victim resisted or expressed non-consent.

      59

      [444] We note that the contrary interpretation of force — that the element of force need be extrinsic to the sexual act — would not only reintroduce a resistance requirement into the sexual assault law, but also would immunize many acts of criminal sexual contact short of penetration. The characteristics that make a sexual contact unlawful are the same as those that make a sexual penetration unlawful. An actor is guilty of criminal sexual contact if he or she commits an act of sexual contact with another using "physical force" or "coercion." N.J.S.A. 2C:14-3(b). That the Legislature would have wanted to decriminalize unauthorized sexual intrusions on the bodily integrity of a victim by requiring a showing of force in addition to that entailed in the sexual contact itself is hardly possible.

      60

      Because the statute eschews any reference to the victim's will or resistance, the standard defining the role of force in sexual penetration must prevent the possibility that the establishment of the crime will turn on the alleged victim's state of mind or responsive behavior. We conclude, therefore, that any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of "physical force" is satisfied under N.J.S.A. 2C:14-2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.

      61

      Under the reformed statute, permission to engage in sexual penetration must be affirmative and it must be given freely, but that permission may be inferred either from acts or statements reasonably viewed in light of the surrounding circumstances. See Ill. Rev. Stat. ch. 38, para. 12-17 (1984) (defining consent as "freely given agreement"); see also, People v. [445] Patterson, supra, 410 N.W.2d at 749 (Boyle, J., dissenting) (reasoning that "force" may include "a sexual touching brought about involuntarily," and may consist of "a contact which occurs before consent can be given or refused"); cf. N.J.S.A. 2C:2-10(c)(3) (indicating that "consent" does not constitute a defense sufficient to negate an element of a crime if consent was induced or accomplished by force or coercion). Persons need not, of course, expressly announce their consent to engage in intercourse for there to be affirmative permission. Permission to engage in an act of sexual penetration can be and indeed often is indicated through physical actions rather than words. Permission is demonstrated when the evidence, in whatever form, is sufficient to demonstrate that a reasonable person would have believed that the alleged victim had affirmatively and freely given authorization to the act.

      62

      Our understanding of the meaning and application of "physical force" under the sexual assault statute indicates that the term's inclusion was neither inadvertent nor redundant. The term "physical force," like its companion term "coercion," acts to qualify the nature and character of the "sexual penetration." Sexual penetration accomplished through the use of force is unauthorized sexual penetration. That functional understanding of "physical force" encompasses the notion of "unpermitted touching" derived from the Legislature's decision to redefine rape as a sexual assault. As already noted, under assault and battery doctrine, any amount of force that results in either physical injury or offensive touching is sufficient to establish a battery. Hence, as a description of the method of achieving "sexual penetration," the term "physical force" serves to define and explain the acts that are offensive, unauthorized, and unlawful.

      63

      That understanding of the crime of sexual assault fully comports with the public policy sought to be effectuated by the Legislature. In redefining rape law as sexual assault, the Legislature adopted the concept of sexual assault as a crime against the bodily integrity of the victim. Although it is [446] possible to imagine a set of rules in which persons must demonstrate affirmatively that sexual contact is unwanted or not permitted, such a regime would be inconsistent with modern principles of personal autonomy. The Legislature recast the law of rape as sexual assault to bring that area of law in line with the expectation of privacy and bodily control that long has characterized most of our private and public law. See Hennessey v. Coastal Eagle Paint Oil Co., 129 N.J. 81, 94-96, 609 A.2d 11 (1992) (recognizing importance of constitutional and common-law protection of personal privacy); id. at 106, 609 A.2d 11 (Pollock, J., concurring) (emphasizing that common-law right of privacy protects individual self-determination and autonomy). In interpreting "physical force" to include any touching that occurs without permission we seek to respect that goal.

      64

      Today the law of sexual assault is indispensable to the system of legal rules that assures each of us the right to decide who may touch our bodies, when, and under what circumstances. The decision to engage in sexual relations with another person is one of the most private and intimate decisions a person can make. Each person has the right not only to decide whether to engage in sexual contact with another, but also to control the circumstances and character of that contact. No one, neither a spouse, nor a friend, nor an acquaintance, nor a stranger, has the right or the privilege to force sexual contact. See Definition of Forcible Rape, supra, 61 Va.L.Rev. at 1529 (arguing that "forcible rape is viewed as a heinous crime primarily because it is a violent assault on a person's bodily security, particularly degrading because that person is forced to submit to an act of the most intimate nature").

      65

      We emphasize as well that what is now referred to as "acquaintance rape" is not a new phenomenon. Nor was it a "futuristic" concept in 1978 when the sexual assault law was enacted. Current concern over the prevalence of forced sexual intercourse between persons who know one another reflects both greater awareness of the extent of such behavior and a growing appreciation of its gravity. Notwithstanding the [447] stereotype of rape as a violent attack by a stranger, the vast majority of sexual assaults are perpetrated by someone known to the victim. Acquaintance Rape, supra, at 10. One respected study indicates that more than half of all rapes are committed by male relatives, current or former husbands, boyfriends or lovers. Diana Russell, The Prevalence and Incidence of Forcible Rape and Attempted Rape of Females, 7 Victimology 81 (1982). Similarly, contrary to common myths, perpetrators generally do not use guns or knives and victims generally do not suffer external bruises or cuts. Acquaintance Rape, supra, at 10. Although this more realistic and accurate view of rape only recently has achieved widespread public circulation, it was a central concern of the proponents of reform in the 1970s. Id. at 18.

      66

      The insight into rape as an assaultive crime is consistent with our evolving understanding of the wrong inherent in forced sexual intimacy. It is one that was appreciated by the Legislature when it reformed the rape laws, reflecting an emerging awareness that the definition of rape should correspond fully with the experiences and perspectives of rape victims. Although reformers focused primarily on the problems associated with convicting defendants accused of violent rape, the recognition that forced sexual intercourse often takes place between persons who know each other and often involves little or no violence comports with the understanding of the sexual assault law that was embraced by the Legislature. Any other interpretation of the law, particularly one that defined force in relation to the resistance or protest of the victim, would directly undermine the goals sought to be achieved by its reform.

      67
      IV
      68

       

      69

      In a case such as this one, in which the State does not allege violence or force extrinsic to the act of penetration, the factfinder must decide whether the defendant's act of penetration was undertaken in circumstances that led the defendant reasonably [448] to believe that the alleged victim had freely given affirmative permission to the specific act of sexual penetration. Such permission can be indicated either through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person affirmative and freely-given authorization for the specific act of sexual penetration.

      70

      In applying that standard to the facts in these cases, the focus of attention must be on the nature of the defendant's actions. The role of the factfinder is not to decide whether reasonable people may engage in acts of penetration without the permission of others. The Legislature answered that question when it enacted the reformed sexual assault statute: reasonable people do not engage in acts of penetration without permission, and it is unlawful to do so. The role of the factfinder is to decide not whether engaging in an act of penetration without permission of another person is reasonable, but only whether the defendant's belief that the alleged victim had freely given affirmative permission was reasonable.

      71

      In these cases neither the alleged victim's subjective state of mind nor the reasonableness of the alleged victim's actions can be deemed relevant to the offense. The alleged victim may be questioned about what he or she did or said only to determine whether the defendant was reasonable in believing that affirmative permission had been freely given. To repeat, the law places no burden on the alleged victim to have expressed non-consent or to have denied permission, and no inquiry is made into what he or she thought or desired or why he or she did not resist or protest.

      72

      In short, in order to convict under the sexual assault statute in cases such as these, the State must prove beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the affirmative and freely-given permission of the alleged victim. As we have indicated, such proof can be based on evidence of conduct or words in light of [449] surrounding circumstances and must demonstrate beyond a reasonable doubt that a reasonable person would not have believed that there was affirmative and freely-given permission. If there is evidence to suggest that the defendant reasonably believed that such permission had been given, the State must demonstrate either that defendant did not actually believe that affirmative permission had been freely-given or that such a belief was unreasonable under all of the circumstances. Thus, the State bears the burden of proof throughout the case.

      73

      In the context of a sexual penetration not involving unusual or added "physical force," the inclusion of "permission" as an aspect of "physical force" effectively subsumes and obviates any defense based on consent. See N.J.S.A. 2C:2-10c(3). The definition of "permission" serves to define the "consent" that otherwise might allow a defendant to avoid criminal liability. Because "physical force" as an element of sexual assault in this context requires the absence of affirmative and freely-given permission, the "consent" necessary to negate such "physical force" under a defense based on consent would require the presence of such affirmative and freely-given permission. Any lesser form of consent would render the sexual penetration unlawful and cannot constitute a defense.

      74

      In this case, the Appellate Division concluded that non-consensual penetration accomplished with no additional physical force or coercion is not criminalized under the sexual assault statute. 247 N.J. Super. at 260, 588 A.2d 1282. It acknowledged that its conclusion was "anomalous" because it recognized that "a woman has every right to end [physically intimate] activity without sexual penetration." Ibid. Thus, it added to its holding that "[e]ven the force of penetration might... be sufficient if it is shown to be employed to overcome the victim's unequivocal expressed desire to limit the encounter." Ibid.

      75

      The Appellate Division was correct in recognizing that a woman's right to end intimate activity without penetration is a [450] protectable right the violation of which can be a criminal offense. However, it misperceived the purpose of the statute in believing that the only way that right can be protected is by the woman's unequivocally-expressed desire to end the activity. The effect of that requirement would be to import into the sexual assault statute the notion that an assault occurs only if the victim's will is overcome, and thus to reintroduce the requirement of non-consent and victim-resistance as a constituent material element of the crime. Under the reformed statute, a person's failure to protest or resist cannot be considered or used as justification for bodily invasion.

      76

      We acknowledge that cases such as this are inherently fact sensitive and depend on the reasoned judgment and common sense of judges and juries. The trial court concluded that the victim had not expressed consent to the act of intercourse, either through her words or actions. We conclude that the record provides reasonable support for the trial court's disposition.

      77

      Accordingly, we reverse the judgment of the Appellate Division and reinstate the disposition of juvenile delinquency for the commission of second-degree sexual assault.

      78

      For reversal and reinstatement — Chief Justice WILENTZ, and Justices CLIFFORD, HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN — 7.

      79

      Opposed — None.

      80

      [1] The sexual assault statute, N.J.S.A.: 2C:14-2c(1), reads as follows:

      81

      c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

      82

      (1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury;

      83

      (2) The victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated;

      84

      (3) The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status;

      85

      (4) The victim is at least 16 but less than 18 years old and:

      86

      (a) The actor is related to the victim by blood or affinity to the third degree; or

      87

      (b) The actor has supervisory or disciplinary power over the victim; or

      88

      (c) The actor is a foster parent, a guardian, or stands in loco parentis within the household;

      89

      (5) The victim is at least 13 but less than 16 years old and the actor is at least 4 years older than the victim.

      90

      Sexual assault is a crime of the second degree.

      91

      [2] The reform replaced the concept of carnal abuse, which was limited to vaginal intercourse, with specific kinds of sexual acts contained in a broad definition of penetration:

      92

      Sexual penetration means vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction. [N.J.S.A. 2C:14-1.]

    • 2.3 Janet Halley -- State v. Rusk Possible Ideal Types

    • 2.4 "The Look in His Eyes": The Story of Rusk and Rape Reform by Jeannie Suk

    • 2.5 Commonwealth v. Sherry

      1
      386 Mass. 682 (1982)
      2
      437 N.E.2d 224
      3
      COMMONWEALTH
      vs.
      EUGENE SHERRY (and eight companion cases[1]).
      4

      Supreme Judicial Court of Massachusetts, Suffolk.

      5
      March 4, 1982.
      6
      July 1, 1982.
      7

       

      8

      Present: HENNESSEY, C.J., LIACOS, ABRAMS, NOLAN, & O'CONNOR, JJ.

      9

      Patricia A. O'Neill for Eugene Sherry.

      10

      Kenneth M. Goldberg for Arif Hussain.

      11

      Joseph J. Balliro (Juliane Balliro with him) for Alan Lefkowitz.

      12

      Michael J. Traft, Assistant District Attorney (Kathleen Coffey, Assistant District Attorney, with him) for the Commonwealth.

      13

      LIACOS, J.

      14

      Each defendant was indicted on three charges of aggravated rape (G.L.c. 265, § 22) and one charge of kidnapping (G.L.c. 265, § 26). A jury acquitted the defendants [684] of kidnapping and convicted them of so much of each of the remaining three indictments as charged the lesser included offense of rape without aggravation. Each defendant was sentenced on each conviction to be imprisoned at the Massachusetts Correctional Institution, Walpole, for a term of not more than five years nor less than three years. Six months of the sentence was to be served, with the balance of the sentence to be suspended. On completion of the sentence served, each defendant was to be placed on probation for the term of one year. The sentences on the second and third convictions of each defendant were to be served concurrently with the first sentence. The trial judge ordered a stay of execution of sentence, pending appeal. The defendants appeal from their convictions and from the denial of their posttrial motions to set aside the verdicts and to enter findings of not guilty. Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979). We transferred the appeals here on our own motion. We now affirm each of the defendants' convictions on one charge of rape and vacate each defendant's convictions on the other two charges of rape.

      15

      The defendants contend that the trial judge erred (1) by denying their motions for a required finding of not guilty; (2) by denying their motions for a mistrial alleging prosecutorial misconduct; (3) by admitting hearsay evidence of the victim's fresh complaint and refusing to admit other hearsay statements of the victim; and (4) in instructing the jury on the lesser included offense of unaggravated rape and refusing to instruct the jury according to the defendants' requests. The defendants also contend that the jury verdicts were impossible as a matter of law, so that a new trial must be granted or the verdicts set aside. We consider each of these claims of error.

      16

      There was evidence of the following facts. The victim, a registered nurse, and the defendants, all doctors, were employed at the same hospital in Boston. The defendant Sherry, whom the victim knew professionally, with another doctor was a host at a party in Boston for some of the hospital [685] staff on the evening of September 5, 1980. The victim was not acquainted with the defendants Hussain and Lefkowitz prior to this evening.

      17

      According to the victim's testimony, she had a conversation with Hussain at the party, during which he made sexual advances toward her. Later in the evening, Hussain and Sherry pushed her and Lefkowitz into a bathroom together, shut the door, and turned off the light. They did not open the door until Lefkowitz asked them to leave her in peace.[2] At various times, the victim had danced with both Hussain and Sherry.

      18

      Some time later, as the victim was walking from one room to the next, Hussain and Sherry grabbed her by the arms and pulled her out of the apartment as Lefkowitz said, "We're going to go up to Rockport." The victim verbally protested but did not physically resist the men because she said she thought that they were just "horsing around" and that they would eventually leave her alone.[3] She further testified that, once outside, Hussain carried her over his shoulder to Sherry's car and held her in the front seat as the four drove to Rockport. En route, she engaged in superficial conversation with the defendants. She testified that she was not in fear at this time. When they arrived at Lefkowitz's home in Rockport, she asked to be taken home. Instead, Hussain carried her into the house.

      19

      Once in the house, the victim and two of the men smoked some marihuana, and all of them toured the house. Lefkowitz invited them into a bedroom to view an antique bureau, and, once inside, the three men began to disrobe. The victim was frightened. She verbally protested, but the three men proceeded to undress her and maneuver her onto [686] the bed. One of the defendants attempted to have the victim perform fellatio while another attempted intercourse. She told them to stop. At the suggestion of one of the defendants, two of the defendants left the room temporarily. Each defendant separately had intercourse with the victim in the bedroom. The victim testified that she felt physically numbed and could not fight; she felt humiliated and disgusted. After this sequence of events, the victim claimed that she was further sexually harassed and forced to take a bath.

      20

      Some time later, Lefkowitz told the victim that they were returning to Boston because Hussain was on call at the hospital. On their way back, the group stopped to view a beach, to eat breakfast, and to get gasoline. The victim was taken back to where she had left her car the prior evening, and she then drove herself to an apartment that she was sharing with another woman.

      21

      The defendants testified to a similar sequence of events, although the details of the episode varied significantly. According to their testimony, Lefkowitz invited Sherry to accompany him from the party to a home that his parents owned in Rockport. The victim was present when this invitation was extended and inquired as to whether she could go along. As the three were leaving, Sherry extended an invitation to Hussain. At no time on the way out of the apartment, in the elevator, lobby, or parking lot did the victim indicate her unwillingness to accompany the defendants.

      22

      Upon arrival in Rockport, the victim wandered into the bedroom where she inquired about the antique bureau. She sat down on the bed and kicked off her shoes, whereupon Sherry entered the room, dressed only in his underwear. Sherry helped the victim get undressed, and she proceeded to have intercourse with all three men separately and in turn. Each defendant testified that the victim consented to the acts of intercourse.

      23

      Motions for a required finding of not guilty. At the close of the Commonwealth's case, the defendants moved for a required finding of not guilty on each of the indictments. [687] Mass. R. Crim. P. 25, 378 Mass. 896 (1979). The defendants argued that there was no evidence of force or threat of bodily injury, a required element of the crime of rape. The defendants also argued that aggravating circumstances, i.e., kidnapping or rape by joint enterprise, had not been proved. The judge denied their motions.

      24

      The defendants contend that, at the close of the Commonwealth's case, see Commonwealth v. Wilborne, 382 Mass. 241, 244 (1981), the evidence was insufficient to persuade a rational trier of fact of each of the elements of the crime charged beyond a reasonable doubt. We consider whether the evidence, in the light most favorable to the Commonwealth, "is sufficient to permit the jury to infer the existence of the essential elements of the crime charged; and whether the evidence and the inferences permitted to be drawn therefrom are sufficient to bring minds of ordinary intelligence and sagacity to the persuasion of guilt beyond a reasonable doubt." Commonwealth v. Casale, 381 Mass. 167, 168 (1980). The defendants may prevail on this claim of error only if we are convinced that no "rational trier of fact could have found the essential elements of [rape] beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979).

      25

      The essence of the crime of rape, whether aggravated or unaggravated, is sexual intercourse with another compelled by force and against the victim's will or compelled by threat of bodily injury. See G.L.c. 265, §§ 22 (a) & (b). At the close of the Commonwealth's case, the evidence viewed in the light most favorable to the Commonwealth established the following. The victim was forcibly taken from a party by the three defendants and told that she would accompany them to Rockport. Despite her verbal protestations, the victim was carried into an automobile and restrained from leaving until the automobile was well on its way. Notwithstanding her requests to be allowed to go home, the victim was carried again and taken into a house. The three defendants undressed and began to undress the victim and to [688] sexually attack her in unison over her verbal protestations. Once they had overpowered her, each in turn had intercourse with her while the others waited nearby in another room.

      26

      The evidence was sufficient to permit the jury to find that the defendants had sexual intercourse with the victim by force and against her will. The victim is not required to use physical force to resist; any resistance is enough when it demonstrates that her lack of consent is "honest and real." Commonwealth v. McDonald, 110 Mass. 405, 406 (1872). The jury could well consider the entire sequence of events and acts of all three defendants as it affected the victim's ability to resist. Commonwealth v. Therrien, 383 Mass. 529, 538-539 (1981). Commonwealth v. Chapman, 8 Mass. App. Ct. 260, 262 (1979). Cf. Commonwealth v. Burke, 105 Mass. 376 (1870). There was no error in the denial of the defendants' motions.

      27

      Motions for a mistrial. The defense called as a witness one Barbara Gariepy, the victim's nursing supervisor at the hospital. On cross-examination of Gariepy, the prosecutor asked her a series of questions pertaining to the defendant Sherry's sobriety. The prosecutor asked Gariepy if she told a certain detective that Sherry was "falling down drunk." Gariepy stated that she did not know if she had used that terminology. The prosecutor then confronted the witness with a written communication from her to the detective stating that Sherry was "falling down drunk."

      28

      The following day of trial, defense counsel moved for a mistrial, alleging that the prosecutor had instructed Gariepy before trial not to use the word "drunk" if she should testify. Thus, the defendants claimed the prosecutor intentionally created the prospect of her impeachment by a prior inconsistent statement. The judge questioned Gariepy in his lobby, and she confirmed that the prosecutor had instructed her not to use the term "drunk" while testifying, because "drunk" was a conclusion or a judgment. She stated that, while testifying, she attempted to describe how Sherry appeared and that she became confused when directly asked whether Sherry was drunk.

      29

      [689] The judge concluded there was nothing dishonest or unethical in the prosecutor's conduct and denied the motion for mistrial. The judge also denied the defense motion to strike Gariepy's testimony on cross-examination. During closing argument, the prosecutor restated Gariepy's testimony regarding Sherry's sobriety as illustrative of a hospital-wide conspiracy designed to protect the doctors. The prosecutor also commented on the unbelievability of the testimony of other defense witnesses, implying that they were all "closing ... the ranks" behind the doctors. Defense counsel again moved for a mistrial based on the prosecutor's comment on Gariepy's prior inconsistent statement.

      30

      We find no error in the denial of the motion for a mistrial. The record does not indicate any scheme or design by the prosecutor to confuse or trap the witness. We cannot say that the trial judge erred in determining that the prosecutor's cross-examination of Gariepy was neither dishonest nor unethical. It appears that the advice the prosecutor gave Gariepy was designed to avoid the strictures of the so called opinion rule. Whether the advice was well taken or not, the judge could correctly conclude that this incident was not ground for a mistrial. As to the argument, since the evidence had not been excluded, Commonwealth v. Burke, 373 Mass. 569, 575 (1977), it was fair for the prosecutor to comment on it. See Commonwealth v. Dilone, 385 Mass. 281, 286 (1982); S.J.C. Rule 3:08, PF-13 (a), as appearing in 382 Mass. 802 (1981). "Counsel may argue as to the evidence and the fair inferences from the evidence." Commonwealth v. Earltop, 372 Mass. 199, 205 (1977) (Hennessey, C.J., concurring), citing Leone v. Doran, 363 Mass. 1, 18 (1973). Arguably, Gariepy sought to minimize any testimony damaging to the defendants and thus the prosecutor, in his closing, did not refer to facts which he knew to be untrue. See Leone v. Doran, supra. "This is not a case where a criminal conviction has been obtained by the knowing use of false testimony and, consequently, such cases cited by the defendant as Napue v. Illinois, 360 U.S. 264 (1959), and Giglio [690] v. United States, 405 U.S. 150 (1972), are not controlling." Commonwealth v. Gilday, 367 Mass. 474, 490 (1975). Compare Commonwealth v. Daigle, 379 Mass. 541, 546 (1980) (unintentional use of false testimony not reviewed under strict standard of materiality). We note further that the judge clearly instructed the jury on the use of impeachment testimony.[4]

      31

      Evidence of fresh complaint. The defendants contend that the judge erred in admitting testimony indicating that the victim made a fresh complaint of the rape to several persons. The defendants do not dispute the general principle that "testimony reporting statements made by the victim shortly after [a rape] are universally admitted to corroborate the victim's testimony." Commonwealth v. Bailey, 370 Mass. 388, 392 (1976). Rather, the defendants argue, in substance, that the victim's delay in making the statements disqualifies the complaints as being admissible, particularly in light of opportunities she may have had to complain while still in the company of the defendants.

      32

      The evidence of fresh complaint that was admitted was as follows. The victim's roommate testified that the victim related the facts of the rape to her in their apartment in the early hours of the morning following the incident. Another friend of the victim testified that the victim told her about the rape over the telephone at approximately 9 A.M. on the same morning. The police officer who spoke with the victim the day following the incident testified as to what the victim told him about the rape, and a hospital report reciting the events that occurred was also admitted in evidence.

      33

      [691] Although the judge made no explicit preliminary findings whether the statements were sufficiently prompt to constitute fresh complaint, see Commonwealth v. Cleary, 172 Mass. 175, 177 (1898), the record indicates that the judge looked at all the circumstances of the case and concluded that on these particular facts the victim's complaints were reasonably prompt. The judge instructed the jury that they could reject the proffered evidence as being corroborative of the victim's testimony if they did not find that the complaints were made "reasonably promptly." See Commonwealth v. McGrath, 364 Mass. 243, 250 (1973).

      34

      We cannot say that the judge abused his discretion. There is no rule that requires a victim to complain of a rape to strangers in an unfamiliar place while still in the company of the alleged rapist. The actions of the victim were reasonable in the particular circumstances of the case. Cf. Commonwealth v. Izzo, 359 Mass. 39, 42-43 (1971). The victim first reported the rape to her friend and roommate within a few hours after being dropped off by the defendants. There was no error.[5]

      35

      Exclusion of victim's prior out-of-court statements. Defense counsel sought a pretrial ruling regarding the admissibility of two out-of-court statements of the victim. A voir dire was conducted, during which one Cheryl Rowley testified that the victim had made statements at a rape crisis seminar. Rowley testified that the victim stated at the seminar "that she had been raped in the past, and that she had had a couple of occasions where she was almost raped. [692] And she told us about different ways that she got out of being raped — the times that she did." Rowley testified further that "[t]he one that I remembered the most was that she had been taken to a sand pit by some man, and he was attempting to rape her, and she said that she got out of it by what she said, `Jerking the guy off.'" The trial judge ruled that this evidence would not be admitted.

      36

      The defendants argue that the judge erred in light of our decision in Commonwealth v. Bohannon, 376 Mass. 90 (1978). There was no error. There was no showing that the statements were false or even an exaggeration of the truth; hence, the Bohannon case is inapplicable. Without evidence of falsity, the statements become irrelevant to any issue in the case, including the credibility of the complainant. See Commonwealth v. Bohannon, supra at 95 (evidence of prior false accusations of specific crime that is subject of trial may damage complainant's credibility).

      37

      The defendants further argue that the judge's exclusion of the statement concerning how the victim would extricate herself from a rape situation constitutes reversible error. At trial, the defendants argued that, since the victim would testify that she was confused, disoriented, and unable to react to the acts of the defendants, the prior statement was inconsistent and, thus, directly affected her credibility. Defense counsel was permitted on cross-examination of the victim to ask the following:

      38

      DEFENSE COUNSEL: "Do you recall ... saying at the Rape Crisis Seminar, that you attended, that you could never be raped because if anybody tried to rape you, all you'd do was reach down and jerk him off."

      39

      PROSECUTOR: "Objection, your Honor."

      40

      JUDGE: "I'll take the answer. Do you remember saying that?"

      41

      WITNESS: "No, I don't."

      42

      DEFENSE COUNSEL: "You don't remember saying that?"

      43

      WITNESS: "No, I don't."

      44

      Some time later at trial, defense counsel sought, in direct examination, to introduce Rowley's testimony, as stated in the [693] voir dire, to impeach the victim's credibility. The judge excluded the question, apparently on the basis that the evidence related to a collateral matter. The defendants claim that this ruling was in error and denied them their right to present their defense.

      45

      "Whether evidence is legally relevant is a question which is generally left to the discretion of the trial judge." Commonwealth v. Chasson, 383 Mass. 183, 187 (1981). The trial judge, in his sound discretion, may exclude evidence if the danger of confusion, unfair prejudice, or undue consumption of time in trial of collateral issues outweighs the probative worth of the evidence offered. Robitaille v. Netoco Community Theatre, 305 Mass. 265, 267-268 (1940). In the circumstances of this case, we cannot say that the judge abused his discretion.

      46

      The out-of-court statement of the victim was hearsay and was offered only to impeach her credibility generally and not as to her description of the events in issue. Consequently, Rowley's testimony was collateral to all issues in the case, save the victim's credibility. The victim's testimony on matters not relevant to contested issues in the case cannot, as of right, be contradicted by extrinsic evidence. P.J. Liacos, Massachusetts Evidence 135 (5th ed. 1981). See, e.g., Commonwealth v. Chase, 372 Mass. 736, 746-748 (1977).[6]

      47

      [694] Jury charge on unaggravated rape. The defendants contend that the judge erred in charging the jury that they could find the defendants guilty of unaggravated rape. The defendants objected to the charge, arguing that the Commonwealth's theory throughout the case was an aggravated rape by joint enterprise or kidnapping. The judge, however, stated that the jury could find the defendants guilty of unaggravated rape if there was insufficient evidence of the aggravating factors, viz., kidnapping or joint enterprise, but that rape was otherwise proved. The defendants, on appeal, rely on two theories for reversal: first, that the defendants' convictions on a charge not tried constituted a denial of procedural due process; second, that the trial judge erred in instructing the jury on unaggravated rape because the greater offense of aggravated rape did not require the jury to find a disputed factual element not required for the lesser included offense.

      48

      General Laws c. 265, § 22, as appearing in St. 1980, c. 459, § 6, states in part that "(a) Whoever has sexual intercourse or unnatural sexual intercourse with a person, and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury and if either such sexual intercourse or unnatural sexual intercourse results in or is committed with acts resulting in serious bodily injury, or is committed by a joint enterprise, or is committed during the commission or attempted commission of [certain felonies] shall be punished by imprisonment in the state prison for life or for any term of years.... (b) Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury, shall be punished by imprisonment in the state prison for not more than twenty years.... For the purposes of prosecution, the offense described in subsection (b) shall be a lesser included offense to that described in subsection (a)" (emphasis supplied).

      49

      "It has long been held that lesser included offenses are those necessarily included in the offense as charged." Commonwealth [695] v. Rodriguez, 11 Mass. App. Ct. 379, 380 (1981), citing Morey v. Commonwealth, 108 Mass. 433, 434 (1871). The offense stated in G.L.c. 265, § 22 (b), is by its exact description, necessarily included in § 22 (a). In order to convict under § 22 (a), all the elements of § 22 (b) must be found, plus an additional aggravating factor. Thus, as determined by the Legislature, the unaggravated rape described in § 22 (b) is a lesser included offense of the aggravated rape described in § 22 (a). We fail to perceive how the defendants were denied their right to procedural due process by the judge's charge. See Commonwealth v. Eaton, 2 Mass. App. Ct. 113, 117-118 (1974), and cases cited. Contrary to the claim of the defendants, the evidence provided a rational basis for jury verdicts that the defendants committed the crime of unaggravated rape. See Commonwealth v. McKay, 363 Mass. 220, 228 (1973). On the state of the evidence, the jury were warranted in concluding that the victim did not consent to intercourse with any of the defendants. The jury could have accepted or rejected the evidence that the defendants were engaged in a joint enterprise, or raped the victim in the course of a kidnapping. The charge properly put the factual issues raised by the evidence to the jury. This was not error.[7]

      50

      [696] Instructions to the jury. The defendants next contend that because the judge failed to give two instructions exactly as requested, the judge's jury charge, considered as a whole, was inadequate and the cause of prejudicial error. The requested instructions in their entirety are set out in the margin.[8]

      51

      The defendants were not entitled to any particular instruction as long as the charge as a whole was adequate. See Commonwealth v. Aronson, 330 Mass. 453, 457-458 (1953) (impression created by charge as whole constitutes test of adequacy); Commonwealth v. MacDougall, 2 Mass. App. Ct. 896 (1974) (judge need not grant specific requested instructions as long as substance is covered). Cf. Commonwealth v. DeChristoforo, 360 Mass. 531, 540 (1971).

      52

      The instructions given by the trial judge placed before the jury the essential elements of the crime required to be proved. The judge instructed the jury that intercourse must be accomplished with force "such [as] to overcome the woman's will; that it be sufficient to accomplish the man's purpose of having sexual intercourse against her will" or by threats of bodily harm, inferred or expressed, which engendered fear "reasonable in the circumstances ... so that it was reasonable for her not to resist." He later reiterated that "[t]he act of the defendant must have been against the will, that is without the woman's consent, and there must have been sufficient force used by him to accomplish his purpose."

      53

      These instructions correctly stated the elements of proof required for a rape conviction. See Commonwealth v. [697] McDonald, 110 Mass. 405, 406 (1872). Moreover, the judge was not required to comment upon particular facts of the case supposed to tend in favor of the defendants. Commonwealth v. Miller, 297 Mass. 285, 287 (1937). The judge was not bound to discuss every subsidiary fact and possible inference, but only to give generally accurate and complete instructions. Commonwealth v. Monahan, 349 Mass. 139, 171 (1965).

      54

      To the extent the defendants, at least as to the first requested instruction, appear to have been seeking to raise a defense of good faith mistake on the issue of consent, the defendants' requested instruction would have required the jury to "find beyond a reasonable doubt that the accused had actual knowledge of [the victim's] lack of consent" (emphasis added). The defendants, on appeal, argue that mistake of fact negating criminal intent is a defense to the crime of rape. The defense of mistake of fact, however, requires that the accused act in good faith and with reasonableness. See Commonwealth v. Presby, 14 Gray 65, 69 (1860); Commonwealth v. Power, 7 Met. 596, 602 (1844); R. Perkins, Criminal Law 939-940 (2d ed. 1969). Whether a reasonable good faith mistake of fact as to the fact of consent is a defense to the crime of rape has never, to our knowledge, been decided in this Commonwealth. We need not reach the issue whether a reasonable and honest mistake to the fact of consent would be a defense, for even if we assume it to be so, the defendants did not request a jury instruction based on a reasonable good faith mistake of fact. We are aware of no American court of last resort that recognizes mistake of fact, without consideration of its reasonableness, as a defense; nor do the defendants cite such authority. There was no error.

      55

      Inconsistent verdicts. The defendants' final argument is that the judge erred in denying their motions to set aside the verdicts or, in the alternative, to grant a new trial as a result of verdicts which were impossible at law. The defendants were each tried on three charges of aggravated rape and one charge of kidnapping, and the jury returned verdicts of not [698] guilty of kidnapping and so much of the indictments as charged aggravated rape. The defendants argue that the jury, having acquitted them of joint enterprise and kidnapping, could not find them guilty of three counts of the lesser included offense of simple rape. The defendants argue that the verdicts must not be permitted to stand because there was no joint venture theory for the lesser offense, or separate indictments for lesser offenses, nor were there any jury instructions on the theory of joint venture relative to the lesser offense.

      56

      The defendants rely on the line of cases that have reversed convictions because of jury verdicts that were impossible at law. See, e.g., Commonwealth v. Carson, 349 Mass. 430, 434-436 (1965) (convictions for larceny of stock and larceny of money proceeds from same stock, error); Commonwealth v. Haskins, 128 Mass. 60, 61 (1880) (convictions of larceny and receipt of same stolen goods, inconsistent in law).

      57

      These cases are inapposite. "[T]he rule is well established in criminal cases that mere inconsistency in verdicts, one of which is an acquittal, will not render the verdict of guilty erroneous even though such inconsistency may have indicated the possibility of compromise on the part of the jury." Commonwealth v. Scott, 355 Mass. 471, 475 (1969). See Commonwealth v. White, 363 Mass. 682 (1973). See also Harris v. Rivera, 454 U.S. 339, 347-348 (1981) (verdict will not be set aside based on inconsistency). Although the defendants claim that they do not argue inconsistency of verdicts but rather legal impossibility of verdicts as the basis of the alleged error, the verdicts do not appear to us to be inconsistent. Nor do the verdicts appear to be legally impossible in the sense in which that term was used in Carson, supra, and Haskins, supra. The defendants cannot now complain because the jury did not specifically find the aggravating circumstances necessary for a conviction of aggravated rape. The fact of intercourse between each defendant and the victim was not contested. If the jury believed that each act of intercourse was against the will of the victim, the jury could find, as instructed, that each defendant [699] raped the victim, although they did not find rape by a joint enterprise.

      58

      Alternatively, it is possible that the jury were convinced that the defendants raped the victim in a joint enterprise, but were disposed through leniency to convict of the lesser included offense. Cf. Commonwealth v. Dickerson, 372 Mass. 783, 796-798 (1977); id. at 811-812 (Quirico, J., concurring). See Dunn v. United States, 284 U.S. 390, 393-394 (1932). We have stated that "the jury, within their power to appraise evidence selectively, might have accepted as credible enough evidence [to convict the defendants of rape], but might have declined to accept such further evidence as tended to prove [any aggravating circumstances]." Commonwealth v. Dickerson, supra at 796. Although the jury may have the power to act contrary to their legal obligation to return a verdict of guilty of the highest crime which had been proved beyond a reasonable doubt, see Dickerson, supra at 797, this does not mean that a verdict of guilt as to a lesser included offense may withstand a motion to set aside, if the record reveals that there is no evidence to sustain it.

      59

      The motion of each defendant to set aside the verdicts, or to grant a new trial, specified an additional ground, namely that the verdicts were "totally contrary to the weight of the evidence." Mass. R. Crim. P. 25 (b) (2), 378 Mass. 896 (1979). A judge may consider such a motion where, as here, motions for required findings of not guilty had been filed under Mass. R. Crim. P. 25 (a). A verdict of guilty cannot stand when it is wholly contrary to the weight of the evidence. Commonwealth v. Woods, 382 Mass. 1, 7-8 (1980). This situation obtains as to two verdicts of guilty of unaggravated rape as to each defendant. Thus, to this extent, denial of these motions was error. There was no evidence of three separate rapes by each defendant which would warrant a conviction on all three indictments. Cf. Commonwealth v. Therrien, 383 Mass. 529, 538-539 (1981).

      60

      [700] Although affirmance of all of the convictions would have no practical effect on the terms of incarceration, since the multiple sentences were imposed concurrently, we believe that justice requires that the convictions on two of the indictments as to each defendant be set aside.[9] Cf. Commonwealth v. Jones, 382 Mass. 387, 395-397 (1981). We affirm the defendant Sherry's conviction on so much of indictment number 033745 as charges unaggravated rape and vacate the convictions on the indictments numbered 033746 and 033911. In the defendant Hussain's case, we affirm his conviction on so much of indictment number 033737 as charges unaggravated rape and vacate his convictions on the indictments numbered 033738 and 033739. Similarly, we affirm the defendant Lefkowitz's conviction on so much of the indictment number 033741 as charges unaggravated rape and vacate the convictions on indictments numbered 033743 and 033744.[10]

      61

      So ordered.

      62

      [1] Two are against Eugene Sherry, three are against Arif Hussain, and three are against Alan Lefkowitz.

      63

      [2] The victim testified that after this incident she complained to a Dr. Sheskey about the defendant Hussain's behavior. Dr. Sheskey corroborated this testimony.

      64

      [3] The victim testified that she was not physically restrained as they rode down an elevator with an unknown fifth person, or as they walked through the lobby of the apartment building where other persons were present.

      65

      [4] At trial, the defendants also objected to another comment made by the prosecutor during his closing argument. The prosecutor stated: "And don't you think that if there wasn't sperm in that vagina they [the defendants] would have denied even having sex." Defense counsel objected, and the judge instructed the jury that they "should disregard that remark." In his instructions to the jury, the judge also stated that "the statements and arguments of counsel are not evidence." The judge's action in instructing the jury to disregard the remark, and his instructions to the jury that arguments are not evidence, were sufficient to cure any conceivable prejudice. See Commonwealth v. Dougan, 377 Mass. 303, 312 (1979).

      66

      [5] The defendants' argument that spontaneity is the linchpin of the fresh complaint exception to the hearsay rule is misplaced. Unlike the practice of some States, evidence of a fresh complaint in a rape case is not admitted as part of the res gestae in this Commonwealth. See Commonwealth v. Cleary, 172 Mass. 175, 176-177 (1898). Rather, admission of the evidence is justified on the ground that the victim's failure to make a prompt complaint might be viewed by the jury as inconsistent with a rape charge, and, in the absence of such evidence, the jury might assume that no complaint was made. Commonwealth v. Bailey, 370 Mass. 388, 392 (1976). Thus, "the ground of admission is held to be the corroboration of the testimony of the complainant as a witness." Glover v. Callahan, 299 Mass. 55, 57 (1937).

      67

      [6] Counsel for the defendants repeatedly asserted during trial that the proffered evidence did not fall within the rape-shield statute. G.L.c. 233, § 21B. The record is unclear regarding the precise grounds on which the evidence was excluded, although there is some indication that the judge considered the rape-shield statute in making his ruling.

      68

      The defendant Hussain argues on appeal that the rape-shield statute is unconstitutional because it absolutely bars evidence of the rape victim's sexual conduct. The defendant, in his brief, alleges that "it is clear that testimony revealing her reputation and also the defendant's knowledge of her reputation for engaging in this type of sexual activity under similar circumstances would clearly have been relevant to the issues of whether her resistance was honest and real and whether the defendant possessed the requisite criminal intent" (emphasis added). We do not reach the issue whether such evidence would be relevant, or whether, in that context, the statute's bar to reputation evidence would be unconstitutional. The defendant did not seek to introduce reputation evidence in the lower court.

      69

      [7] The defendants, however, rely on Sansone v. United States, 380 U.S. 343, 349-350 (1965), and further argue that a charge for the lesser included offense could not be given because the defendants did not dispute the alleged joint enterprise. We find no merit in the defendants' assertion that this case falls within the ambit of Sansone simply because the defendants now claim that they did not contest the joint enterprise element of the crime of aggravated rape. The case of United States v. Harary, 457 F.2d 471 (2d Cir.1972), on which the defendants rely is also inapposite. There the charge was bribery, and the defense was entrapment. Additionally, the defendant admitted the specific intent to bribe. See 18 U.S.C. § 201(b) (2) (1976). The court concluded, therefore, that the lesser offense of giving a gratuity for an official act performed or to be performed (18 U.S.C. § 201[f] [1976]), was not in issue, and a conviction of that lesser offense could not stand in light of the acquittal of the bribery charge. Here the defendants did not admit to the existence of a joint enterprise. To the contrary, they contested this issue and, in their motion for a required finding of not guilty, the defendants argued that there was insufficient evidence to establish a joint venture.

      70

      [8] "Unless you find beyond a reasonable doubt that [the victim] clearly expressed her lack of consent, or was so overcome by force or threats of bodily injury that she was incapable of consenting, and unless you find beyond a reasonable doubt that the accused had actual knowledge of [the victim's] lack of consent, then you must find them not guilty."

      71

      "If you find that [the victim] had a reasonable opportunity to resist being taken to Rockport, Massachusetts, from the apartment..., and had a reasonable opportunity to avoid or resist the circumstances that took place in the bedroom, at Rockport, but chose not to avail herself of those opportunities, then you must weigh her failure to take such reasonable opportunities on the credibility of her claim that she was kidnapped and raped."

      72

      [9] It was not legally impossible for the three defendants to be convicted on three charges of rape on another theory of guilt. The jury could have found that each defendant was an accessory before the fact to the other two acts of rape and the principal to the rape he perpetrated. See Commonwealth v. Morrow, 363 Mass. 601, 609 (1973). The jury, however, were not instructed on the law regarding the liability of principals and accessories and thus could not have based their verdict on this theory.

      73

      [10] We perceive no need in this case to remand for resentencing. See Commonwealth v. Layne, ante 291 (1982).

You've reached the bottom of your content preview.
To view the rest in your browser, click here.
To export the complete content in DOC format, click the blue export button in the upper right corner of this page.

(Note: If you view the entire playlist, any changes you've made to export settings will be lost. Large playlists may temporarily freeze your browser while loading, as well.)