THE DEFINITION OF SEXUAL ASSAULT

Degrees of Sexual Assault
Clarifications/Definitions
Related Statutes

Any sexual contact without consent is against the law in Wisconsin.The statutes define four degrees of sexual assault. Sexual assault can include placing your hand on someone's breast, buttocks or genitals, or on the clothing covering those areas, without consent.. If you engage in these behaviors, with either a stranger or a friend, you can be charged with and prosecuted for sexual assault. Sexual assault is known to be a crime of indifference to the feelings of others, dominance, hostility and sometimes physical brutality. It is not primarily a sexually motivated crime but rather a crime of assault using sex as a weapon.

The key word is "consent." Sexual assault can occur between persons in dating or sexual relationships, including marriage. It can also occur between persons of the same gender.

What is consent?My Strength is Not for Hurting Poster

  • Consent means both people deciding together to do the same thing at the same time, in the same way, with each other.
  • Consent is active not passive. It is a matter of whether or not someone said yes, not whether or not someone said no or put up resistance.
  • Getting consent means you don’t make assumptions about what your partner does or does not want.
  • Consent to one form of sexual activity does not automatically imply consent to other forms of sexual activity.
  • Consent requires that the person initiating the sexual activity get permission to do so, and that permission does not exist in the absence of resistance.
  • It’s not your partner’s job to resist, but yours to respect his/her boundaries, and to find out what they are if they are unclear.
  • Making someone touch you in a sexual way without their permission is sex without consent.
  • If someone says no and you keep pressuring, that is considered coercion.
  • Consent is not valid when forced, threatened, intimidated, or coerced; when given by a mentally or physically incapacitated person, or when given by a minor.
  • Consent can be withdrawn at any time, as long as that withdrawal is clearly communicated by the person withdrawing it.

mencanstoprape.org

This information adapted from The Campus Sexual Misconduct Judicial Training Manual. Brett A. Sokolow, JD. (2000, The National Center for Higher Education Risk Management, www.ncherm.org).


Degrees of Sexual Assault


Wisconsin State Statute 940.225 creates four degrees of sexual assault. The Degrees are based upon the amount of force used by the assailant and the amount of harm done to the victim, rather than on the resistance offered by the victim. First, second and third degree sexual assaults are felonies; fourth degree sexual assault, lewd and lascivious behavior & sexual gratification are misdemeanors.

FIRST DEGREE SEXUAL ASSAULT (Class B felony)

a) Has sexual contact or sexual intercourse with another person without consent of that person and causes pregnancy or great bodily harm to that person.
b) Has sexual contact or sexual intercourse with another person without consent of that person by use of threat or use of 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.
d) Has sexual contact or sexual intercourse with or without consent with a person under the age of 13. Penalties for a Class B felony = sentence not to exceed 60 years .

SECOND DEGREE SEXUAL ASSAULT (Class C felony)

a) Has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.
b) Has sexual contact or sexual intercourse with another person without consent of that person and causes injury, including 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. (Consent is not an issue.)
(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 appraising the person's conduct, and the defendant knows of such condition. (Alcohol is considered an intoxicant.) (Consent is not an issue.)
d) Has sexual contact or sexual intercourse with a person who the defendant knows is unconscious. (Consent is not an issue.)
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 contat 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 whho is confined in a correctional institution if the actor is a correctional staff member. This paragraph does not apply if the individual with whome 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 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.
Penalties for Class C felony, a fine not to exceed $100,000, the total sentence may not exceed 40 years, with a maximum 25 year term of confinement and extended supervision may not exceed 15 years. Wis. Stat. sec. 939.50(3)(c).

THIRD DEGREE SEXUAL ASSAULT (Class G felony)

Whoever has sexual contact involving ejaculation or 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.

Penalties for Class G Felony = a fine not to exceed $25,000 total sentence may not exceed 10 years, the maximum term of confinement may not exceed 5 years and extended supervision may not exceed 5 years. Wis. Stat. sec. 939.50 (3)(d).

FOURTH DEGREE SEXUAL ASSAULT (Class A misdemeanor)

Except for sexual contact as described under sub (3)(c) or (d), whoever has sexual contact with a person without the consent of that person is guilty of a Class A misdemeanor.

Sexual intercourse with a person 16 or 17 years old.
Penalties for a class A misdemeanor = a fine of not to exceed $10,000 or imprisonment not to exceed 9 months in the county jail, or both. Wis. Stat. sec. 939.51 (3)(a)


Clarifications/Definitions

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)...

Sexual Contact means any of the following:
1. Intentional touching by the complainant or defendant, either directly or though clothing by the use of any body part or object, of the complainant or difendant's intimate parts 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 defendent or if the touching contains the elements of actual or attempted battery under s. 940.19(1).

2. Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant upon any part of the body clothed or unclothed of the complainant if that ejactulation or emission is either for the purpose or sexually degrading or sexually humiliating the complainant or for the purpose of sexually arounsing or sexually gratifying the defendant.

3. For the purposes 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.

Sexual Intercourse
The definition of sexual intercourse includes any intrusion, however slight, of a person's genital or anal opening by any object or part of another person's body (including cunnilingus and fellatio).

Marriage
Marriage is not a bar to prosecution. A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant or death of victim. This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse. (s,940.225(7))

Evidence of Victim's Past Sexual Conduct
Wisconsin State Statute 972.11 prohibits the use of evidence of the victim's past sexual conduct in court except in very limited instances. Any conduct or behavior relating to sexual activities of the victim including, but not limited to prior experience of sexual intercourse or sexual contact, use of contraceptives, living arrangements, and lifestyle. Three exceptions to the prohibition against evidence of a victim's past sexual conduct are:

  • the judge may allow evidence of the victim's past conduct with the defendant
  • the judge may allow evidence which could show the source or origin of semen, pregnancy, or disease only for the use in determining the degree of sexual assault.
  • the judge may allow evidence of prior untruthful allegations of sexual assault made by the victim.

In addition, the defense attorney who wants to question the victim in any of these allowable areas of past sexual conduct must first petition the judge in a pretrial motion. The judge will determine whether or not the questions can be asked in court.

Statute of Limitations:
The statute of limitations is 6 years for 1st, 2nd, and 3rd degree and 3 years for 4th degree. For sexual abuse that occurred during childhood, the individual has until age 31 to file criminal charges.


Related Statutes

Lewd and Lascivious Behavior (Class A misdemeanor)
$10,000 and/or 9 months in county jail for committing an indecent act of sexual gratification with another with knowledge they are in the presence of others, or publicly and indecently exposing a sex organ.

Sexual Gratification (Class A misdemeanor)
$10,000 or 9 months in county jail for gratification in public involving the sex organ of one person and the mouth or anus of another; committing an act of sexual gratification with a minor who is 16 years old or older but younger than 18 years old, not his/her spouse, involving the sex organ of one and the mouth or anus of another; committing an act of sexual gratification involving his/her sex organ and the sex organ, mouth or anus of an animal; committing an act of sexual gratification involving the sex organ, mouth or anus and the sex organ of an animal.

Sexual Harassment
111.36(1)
(1) Employment discrimination because of sex includes, but is not limited to, any of the following actions by any employer, labor organization, employment agency, licensing agency or other person:

111.36(1)(b)
(b) Engaging in sexual harassment ; or implicitly or explicitly making or permitting acquiescence in or submission to sexual harassment a term or condition of employment; or making or permitting acquiescence in, submission to or rejection of sexual harassment the basis or any part of the basis for any employment decision affecting an employee, other than an employment decision that is disciplinary action against an employee for engaging in sexual harassment in violation of this paragraph; or permitting sexual harassment to have the purpose or effect of substantially interfering with an employee's work performance or of creating an intimidating, hostile or offensive work environment. Under this paragraph, substantial interference with an employee's work performance or creation of an intimidating, hostile or offensive work environment is established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct sufficiently severe or pervasive to interfere substantially with the person's work performance or to create an intimidating, hostile or offensive work environment.

111.36(1)(br)
(br) Engaging in harassment that consists of unwelcome verbal or physical conduct directed at another individual because of that individual's gender, other than the conduct described in par. (b) , and that has the purpose or effect of creating an intimidating, hostile or offensive work environment or has the purpose or effect of substantially interfering with that individual's work performance. Under this paragraph, substantial interference with an employee's work performance or creation of an intimidating, hostile or offensive work environment is established when the conduct is such that a reasonable person under the same circumstances as the employee would consider the conduct sufficiently severe or pervasive to interfere substantially with the person's work performance or to create an intimidating, hostile or offensive work environment.

111.32(13)
(13) "Sexual harassment" means unwelcome sexual advances, unwelcome requests for sexual favors, unwelcome physical contact of a sexual nature or unwelcome verbal or physical conduct of a sexual nature. "Sexual harassment" includes conduct directed by a person at another person of the same or opposite gender. "Unwelcome verbal or physical conduct of a sexual nature" includes but is not limited to the deliberate, repeated making of unsolicited gestures or comments of a sexual nature; the deliberate, repeated display of offensive sexually graphic materials which is not necessary for business purposes; or deliberate verbal or physical conduct of a sexual nature, whether or not repeated, that is sufficiently severe to interfere substantially with an employee's work performance or to create an intimidating, hostile or offensive work environment..

Stalking
(class I felony, 3 ½ years – 12 ½ years imprisonment and/or $10,000 – 25,000 fine) : Following, watching, calling, investigating, or delivering of gifts that causes a person to fear bodily injury to him/herself or member of his/her family/household.

Sexual Exploitation by a Therapist
It is unlawful and criminal for any therapist to intentionally have sexual contact with a patient or client during an ongoing therapist/patient relationship. Such conduct is a crime regardless of whether or not it occurs during treatment, consultation, interview or examination. Consent of the victim to the sexual contact is not an issue. Persons included under the title "therapist" are physicians, psychologists, social workers, nurses, chemical dependency counselors, members of the clergy, and all other persons, licensed or not; who perform or purport to perform psychotherapy. The maximum penalty for this offense is a fine of up to $10,000 and imprisonment for up to 5 years.

Harassment
A person can be imprisoned up to 3 years and/or fined up to $10,00 for harassing or intimidating antoher person.

Disorderly Conduct (Class B misdemeanor)
Whoever in a public or private place engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances which tends to cause or provoke a disturbance may be fined not more than $1,000 or imprisoned in county jail not to exceed 90 days.

Illinois Sexual Assault Laws


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