Wisconsin does not use the term “assault” as a standalone criminal charge. What most states call assault, Wisconsin calls battery. The statute is graduated, with tiers that scale on the injury caused and the intent of the person accused. The difference between the tiers is the difference between a misdemeanor and a serious felony, and it is often the single most important question in the case.
What the State Must Prove
Under § 940.19, the prosecution must prove that the accused intentionally caused bodily harm to another person without that person’s consent. The penalty tier turns on the level of harm and (for the highest tier) the level of intent.
The tier of the charge depends on the harm and the intent:
| Statute | Description | Class | Maximum |
|---|---|---|---|
| § 940.19(1) | Simple battery: intentionally cause bodily harm | Class A misdemeanor | 9 months / $10,000 |
| § 940.19(2) | Substantial battery: intentionally cause substantial bodily harm | Class I felony | 3.5 years / $10,000 |
| § 940.19(4) | Aggravated battery: cause great bodily harm | Class H felony | 6 years / $10,000 |
| § 940.19(5) | Aggravated battery with intent to cause great bodily harm | Class E felony | 15 years / $50,000 |
| § 940.19(6) | Aggravated battery against an unborn child | Class E felony | 15 years / $50,000 |
What the Injury Words Actually Mean
The penalty tier turns on the legal definitions in § 939.22. Three categories matter, and the line between them decides whether you face a misdemeanor or a felony.
- “Bodily harm” under § 939.22(4). Physical pain or injury, illness, or any impairment of physical condition. The threshold for simple battery. Bruising, redness, soreness all qualify.
- “Substantial bodily harm” under § 939.22(38). A laceration that requires stitches, staples, or tissue adhesive; any fracture of a bone; a broken nose; a burn; a petechia; a temporary loss of consciousness, sight, or hearing; a concussion; or a loss or fracture of a tooth. The threshold for substantial battery, a Class I felony.
- “Great bodily harm” under § 939.22(14). Bodily injury that creates a substantial risk of death, causes serious permanent disfigurement, causes a permanent or protracted loss or impairment of the function of any bodily member or organ, or other serious bodily injury. The threshold for aggravated battery.
A clean medical-records review is often the single highest-leverage step in a battery case. Triage notes, ER reports, and follow-up imaging can move a case down a tier or two by showing the injury did not meet the statutory threshold the State charged.
Battery to Specific Persons, § 940.20
Wisconsin charges battery to certain victims under a separate, enhanced statute. Each subsection has its own elements and its own penalty tier:
- Battery by prisoners, § 940.20(1). Class H felony.
- Battery to law-enforcement officers and firefighters, § 940.20(2). Class H felony.
- Battery to probation, parole, and aftercare agents, § 940.20(2m). Class H felony.
- Battery to district attorneys, § 940.20(2r). Class H felony.
- Battery to public officers, § 940.20(3). Class I felony.
- Battery to school district officers and employees, § 940.20(5). Class I felony.
- Battery to jurors, § 940.20(7). Class H felony.
- Battery to a witness, § 940.201. Class H felony.
The State must prove the defendant knew the victim’s status. A defendant who did not know an off-duty officer was an officer can challenge the status element, often pushing the charge back into ordinary § 940.19 battery territory.
Strangulation and Suffocation, § 940.235
Strangulation and suffocation under § 940.235 is a separate Class H felony (up to 6 years, $10,000), elevated to a Class G felony (up to 10 years, $25,000) for repeat offenders or defendants with a prior violent-crime conviction defined in § 939.632(1)(e)1.
The State must prove two elements: (1) the defendant intentionally impeded 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; and (2) the defendant did so intentionally. Visible injury is not required. A petechial hemorrhage in the eye, a hoarse voice, brief loss of consciousness, or even no visible injury can support the charge if the State can prove the impeded breathing or circulation.
Strangulation cases overlap heavily with domestic-violence battery filings. We routinely see both charged together as separate counts, with the strangulation count carrying the higher exposure. See our domestic-violence defense page for the DV-modifier consequences that attach.
The Domestic Violence Modifier, § 968.075
A battery filed with the domestic-violence modifier carries consequences far beyond the courtroom. Under § 968.075, three things attach automatically:
- Mandatory arrest at the scene. The “predominant aggressor” framework limits, but does not eliminate, officer discretion. Counter-allegations and self-defense claims still get one of the parties booked.
- A 72-hour no-contact provision. The defendant cannot return home, cannot retrieve belongings, cannot contact the alleged victim, even where the alleged victim asks them to.
- A federal lifetime firearm prohibition on conviction. 18 U.S.C. § 922(g)(9) bars anyone convicted of a “misdemeanor crime of domestic violence” from possessing firearms or ammunition for life. There is no Wisconsin process to restore those rights.
The DV modifier is not a separate charge; it is a flag the prosecutor adds to the underlying battery, disorderly conduct, or strangulation count. Removing the modifier at plea is often the single highest-leverage move in a domestic battery case, even where the underlying conviction stands.
Repeater and Habitual-Criminality Enhancements, § 939.62
A defendant with prior convictions can face an enhanced sentence under the repeater statute at § 939.62. The enhancement adds up to 2 years on a misdemeanor (converting it to felony exposure), and up to 2-6 years on top of a felony, depending on the prior-conviction class. The State must allege the repeater on the charging document and prove the prior convictions; if the State does not, the enhancement does not apply, regardless of what the defendant’s record actually shows.
Statute of Limitations, § 939.74
- Misdemeanor battery, § 940.19(1): 3 years from the date of the offense.
- Felony battery, § 940.19(2), (4), (5), (6): 6 years from the date of the offense.
A battery prosecution filed outside those windows is barred unless a statutory exception applies. The clock starts at the conduct, not at the report.
Defenses We Regularly Raise
- Self-defense under § 939.48. A complete defense. Once raised, the State carries the burden of disproving it beyond a reasonable doubt. If the State cannot do so, the defendant walks.
- Defense of others. The same doctrine extends to protecting third parties from imminent harm.
- Lack of intent. Accidental contact, even when it causes injury, is not battery. The State must prove intentional conduct.
- Consent. Mutually consensual physical contact, whether in a bar fight between combatants, in a contact sport, or in certain medical contexts, can be a complete defense depending on the facts.
- Disputed injury tier. The line between simple, substantial, and aggravated battery turns on the injury actually caused. Medical records, triage notes, and expert testimony often push a case down one or two tiers, converting a felony to a misdemeanor.
- Witness credibility. Many battery cases turn on contradictory witness accounts: bar fights, domestic disputes, road-rage incidents. A trial-tested defense team knows how to break those accounts down on cross-examination.
- Identity / wrong defendant. Crowded scenes, video at a distance, and inconsistent identifications open real ID challenges.
- DV-modifier removal. Even if the underlying battery cannot be defeated, removing the § 968.075 modifier preserves federal firearm rights under 18 U.S.C. § 922(g)(9).
Battery by Setting
Different settings produce different evidence pools. The defense priorities change accordingly.
- Bar fights. Surveillance footage from inside and outside the venue is the single most important evidence. It often disappears within 7-30 days unless someone preserves it. We send preservation letters within hours of engagement.
- Road-rage and traffic disputes. Dashcam, in-cab cellphone footage, and witness vehicles. Both sides frequently throw the first punch; mutual-combat and self-defense angles are common.
- Family disputes. The DV modifier dominates. The cleanest first move is often securing the alleged victim’s later, less-emotional statement, which frequently differs from the responding officer’s narrative.
- Sports and recreation. Consent within the rules of the sport is a defense. The line is whether the contact was within reasonable contemplation of the activity.
- School-setting incidents. § 940.20(5) battery to school employees triggers separate, higher exposure. Juvenile-court vs. adult-court charging is another negotiating lever.
What to Do If You’re Charged
- Do not give a statement to the police. Anything you say will be used to set the charging tier. The State controls the narrative until you have counsel.
- Preserve evidence immediately. Surveillance from the venue, photographs of any defensive injuries you sustained, screenshots of contemporaneous text messages.
- Identify witnesses early. Memories degrade fast. We send investigators to interview witnesses within days of engagement.
- Get every medical report on the alleged victim. The injury tier is the case. Subpoena the ER chart, the follow-up imaging, the discharge notes.
- Stay off social media. Posts from the date of the incident, before, or after, are routinely admissible. So are private DMs once subpoenaed.
Why the Charging Decision Matters So Much
Because the statute is graduated, the prosecutor has significant discretion at charging. The difference between a Class A misdemeanor and a Class E felony is not a sentencing-range question; it is a different conviction entirely, with different consequences for employment, licensure, firearms rights, and immigration. Negotiating with the District Attorney’s office before the charging decision is final is often the single most valuable thing a defense attorney can do.
Wisconsin Battery in Context
Aggravated assault and simple assault are tracked statewide under the FBI Uniform Crime Reporting program. The Wisconsin Department of Justice publishes per-county UCR data through its Crime Reporting Dashboard, and the FBI maintains national data through the Crime Data Explorer. UCR’s “Aggravated Assault” category corresponds roughly to Wisconsin’s substantial and aggravated battery tiers; “Simple Assault” corresponds to simple battery and disorderly-conduct-with-physical-contact. Battery is one of the highest-volume violent-crime filings in Racine, Kenosha, and Walworth counties every year.
For specific case counts in your jurisdiction and year of interest, the WI DOJ dashboard filters by county and agency back at least five years.
Related Practice Areas
- Domestic violence and assault
- Strangulation and suffocation, § 940.235
- Disorderly conduct, § 947.01
- Reckless endangerment, § 941.30
- Resisting and obstructing an officer, § 946.41
- Bail jumping, § 946.49
- Wisconsin expungement strategy
Contact Cafferty & Scheidegger as early in the case as possible. Free consultation; call or text 24/7 at (262) 632-5000.
