Wisconsin law divides sexual assault charges into different degrees based on the specific accusation. The degrees affect potential penalties and how Madison prosecutors approach a case. If you’re trying to make sense of a sexual assault charge, understanding the different degrees is a good place to start.
How Wisconsin Defines Sexual Assault
Sexual assault generally involves sexual contact or sexual intercourse without consent. Consent is a central issue in almost every case. Prosecutors must show that the other person did not consent, or that they could not legally consent because of age, intoxication, unconsciousness, mental incapacity or other factors. The law also looks closely at factors like force and threats. Those details often make the difference between which degree prosecutors charge. The most serious sexual assault charge in Wisconsin in terms of penalties is First-Degree Sexual Assault, as explained below.
The following examples how an individual could be charged with four different degrees of sexual assault based on four different behaviors: (1) by touching an adult’s sexual organs for sexual gratification without the person’s consent (Fourth-Degree Sexual Assault); (2) by beginning to have penetrative sexual intercourse without that person’s consent (Third-Degree Sexual Assault); (3) by forcibly attempting to have penetrative sex with another person his or her consent by holding him or her down to force sex (Third-Degree Sexual Assault); and (4) by using or threatening to use a dangerous weapon to force another person to have sexual intercourse against his or her will, meaning without his or her consent (Fourth-Degree Sexual Assault).
First-Degree Sexual Assault
First-Degree Sexual Assault is the most serious degree. This crime involves sexual contact or intercourse without consent, plus one or more aggravating factors:
- Using or threatening to use a dangerous weapon
- Causing great bodily harm or pregnancy
- Sexually assaulting a victim aged 60 years or older
- Committing the sexual assault with more than one perpetrator if that perpetrator also has sexual contact through use of force or violence
In the case where the other person involved in the sexual intercourse or contact is a child, the older party can be charged with First-Degree Sexual Assault if the child is under the age of 13 at the time of the act and sexual contact occurs, is under the age of 12 at the time of the event and sexual intercource occurs, or if the child is aged 16 or younger if the actor used a threat of force or violence.
Prosecutors often focus on injuries or claims of force to support the higher charge level. There may be physical and medical evidence to support the claim, while in other cases, witness statements are the primary evidence.
First-Degree Sexual Assault is a Class B felony. A conviction can carry up to 60 years in prison. Also, a person convicted of this offense is required to register as a sex offender.
Second-Degree Sexual Assault
Second-Degree Sexual Assault still involves sexual contact or intercourse without consent. The difference is that this degree has different or fewer aggravating circumstances. For example:
- Sexual contact or intercourse by use or threat of force or violence, without the severe factors required for a First-Degree conviction
- Sexual contact or intercourse with someone who is unconscious or otherwise unable to give consent for reasons such as complete impairment by alcohol or a certain mental status that make the person unable to give consent as a matter of law
- Causing injury that is less severe than “great bodily harm” such as injury to a person’s sexual organ
- Causing the victim to experience mental anguish requiring psychiatric despair
- Being aided and abetted, or assisted by another person, without that person having sexual contact with the victim through force or threat of violence and without the victim’s consent
- Having sex with someone is an employment capacity while employed in certain professions such as a jail or prison correctional officer having sexual intercourse with an inmate
Additionally, in Wisconsin it is Second-Degree Sexual Assault to have sexual intercourse or contact with a child under the age of 16 unless the actor is under the age of 19 years-old and the child is 15 through 17 years old at the time of the event.
Second-Degree Sexual Assault is a Class C felony. The maximum penalty is 40 years in prison and those convicted register as a sex offender.
Third-Degree Sexual Assault
Third-Degree Sexual Assault involves sexual intercourse without consent, but without the additional factors required for higher degrees of sexual assault. A common example of Third-Degree Sexual Assault is when a person alleges date rape. To prove Third-Degree Sexual Assault, the prosecutor must prove beyond a reasonable doubt that sexual intercourse occurred and that the alleged victim did not consent, or freely agree, to have sexual intercourse.
Context and communication before and after the incident can play an important role in this defense. If convicted of this offense, Third-Degree Sexual Assault is considered the least severe of the three, it’s still a Class G felony, meaning the judge can sentence the person up to 10 years for those convicted.
How the Degree Affects Defenses and Potential Outcomes
Sexual assault degrees directly impact the potential penalties, but can also affect:
- How aggressively prosecutors pursue the case
- Whether bail is likely and under what conditions
- What evidence law enforcement uses and prioritizes
Remember, charges can also change. Prosecutors sometimes file one degree initially and later amend the charge as more evidence comes in – or if they realize they can’t prove the current allegations beyond a reasonable doubt. In rare cases, a prosecutor who takes over the case for another prosecutor may be able to amend the charge to a more serious degree of sexual assault.
If law enforcement contacts you about a sexual assault allegation, exercise your rights to an attorney and to remain silent. They may ask you to make statements before you understand the specific allegations or charge degree, and anything you say can be used against you. An experienced sexual assault criminal defense attorney can help you understand what’s at stake and how to develop your best defense to the allegations so you can secure the best possible result.
Discuss Your Case with Our Experienced Sexual Assault Defense Lawyers
Casper Mehlos Law Group, LLC, defends clients charged with sexual assault in Madison and throughout Wisconsin. To learn how Wisconsin law applies to your case and how our law firm can assist you, contact us for a confidential consultation today.
