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Defending Second-Degree Sexual Assault Charges in Racine and Kenosha

Charged under Wis. Stat. § 940.225(2) in Racine or Kenosha? Each way it is charged, the Class C penalty, the 20-year limit, lifetime registration.

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A Class C felony defined paragraph by paragraph

Second-degree sexual assault is one of the most serious charges in the Wisconsin criminal code that does not involve a weapon or great bodily harm. It is a Class C felony carrying up to 40 years, a single conviction means sex offender registration for life, and the State has 20 years to bring it. It is also one of the most technical charges to defend, because § 940.225(2) is not a single crime. It is a list of separately defined offenses, and the paragraph the State charges decides what it has to prove.

We defend people charged under § 940.225(2) in Racine County Circuit Court at 730 Wisconsin Avenue and Kenosha County Circuit Court at 912 56th Street, from our offices in Racine and Kenosha. Our founding partner, Patrick K. Cafferty, has defended Wisconsin felony cases since 1994. The work starts with the statute, the complaint and the evidence, and it starts before the first court date.

Second-degree sexual assault, § 940.225(2), at a glance
  • The offense, § 940.225(2). Sexual contact or sexual intercourse in any of the circumstances listed in paragraphs (a) through (k), set out below.
  • Classification: Class C felony, every paragraph.
  • Maximum: 40 years and $100,000, § 939.50(3)(c). Confinement up to 25 years and extended supervision up to 15, § 973.01(2).
  • Repeat offense: with a prior first- or second-degree conviction, at least 3 years 6 months of confinement and no probation, § 939.618(2)(a).
  • Time limit: 20 years, § 939.74(2)(ar), and longer when DNA identifies a suspect, § 939.74(2d).
  • Registration: for life after a single conviction, § 301.45(5)(b)1m.
  • Lifetime supervision: available to the court for a “serious sex offense,” which includes § 940.225(2), under § 939.615.

Every way the State can charge it

Each paragraph of § 940.225(2) is a complete offense with its own elements. The complaint has to say which one is charged, and the defense starts there.

  • (a) Force. Sexual contact or sexual intercourse without consent by use or threat of force or violence.
  • (b) Injury. Sexual contact or sexual intercourse without consent that causes injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care for the victim.
  • (c) Mental illness or deficiency. Sexual contact or sexual intercourse with a person whose mental illness or deficiency renders the person temporarily or permanently incapable of appraising the person’s conduct, where the defendant knows of the condition.
  • (cm) Intoxication. Sexual contact or sexual intercourse with a person under the influence of an intoxicant to a degree that renders the person incapable of giving consent, if the defendant has actual knowledge that the person is incapable of giving consent and has the purpose to have sexual contact or intercourse while the person is incapable. “Intoxicant” includes alcohol, controlled substances and other drugs, § 940.225(5)(ai).
  • (d) Unconsciousness. Sexual contact or sexual intercourse with a person the defendant knows is unconscious. The Court of Appeals has held that “unconscious” includes a loss of awareness caused by sleep, State v. Curtis, 144 Wis. 2d 691 (Ct. App. 1988).
  • (f) Aided by another. Sexual contact or sexual intercourse without consent, aided or abetted by one or more other persons.
  • (g) Facility employees. An employee of certain care and treatment facilities or programs, with a patient or resident.
  • (h) Correctional staff. A correctional staff member, with a person confined in a correctional institution.
  • (i) Probation, parole and extended supervision agents. An agent, with a person the agent supervises or whose supervision the agent has influenced.
  • (j) Care providers. A licensee, employee or nonclient resident of certain licensed care entities, with a client of the entity.
  • (k) Law enforcement. A law enforcement officer, with a person who is detained by or in the custody of any law enforcement officer, whether the custody is lawful or unlawful.

Sexual contact and sexual intercourse are defined terms. “Sexual contact” under § 940.225(5)(b) generally requires an intentional touching of intimate parts, directly or through clothing, for the purpose of sexual degradation, humiliation, arousal or gratification, or a touching that contains the elements of an actual or attempted battery. “Sexual intercourse” under § 940.225(5)(c) includes any intrusion, however slight, into the genital or anal opening, and oral sex. Whether the evidence shows contact or intercourse can decide whether a lesser degree is in play.

Separate acts can be separate counts. The official annotations note that separate acts of sexual intercourse, each different in kind and differently defined in the statutes, constitute separately chargeable offenses, State v. Eisch, 96 Wis. 2d 25 (1980); see also State v. Ziegler, 2012 WI 73. Each count can carry its own Class C exposure.

Section 940.225(4) defines consent as “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 part of every second-degree charge. The statute provides that consent is not an issue under paragraphs (c), (cm), (d), (g), (h) and (i), and paragraph (k) says the same. In those cases the questions are knowledge, capacity and status: what the defendant knew about the person’s condition, and whether the person was a patient, inmate, supervisee, client or detainee. Under paragraphs (a), (b) and (f), lack of consent is an element the State must prove beyond a reasonable doubt. The Wisconsin Supreme Court has held that failure to resist is not consent, State v. Clark, 87 Wis. 2d 804 (1979).

The sentencing statutes that set the exposure

The maximum. Class C, up to 40 years and $100,000, § 939.50(3)(c). A prison sentence is split into confinement of no more than 25 years and extended supervision of no more than 15, § 973.01(2).

Repeat serious sex crimes. First- and second-degree sexual assault are “serious sex crimes” under § 939.618(1). With one or more prior convictions for either, the court must impose at least 3 years and 6 months of confinement and may not order probation, § 939.618(2)(a).

Persistent repeater. Second-degree sexual assault is a “serious felony” under § 939.62(2m). A person convicted of a serious felony on two or more prior separate occasions, as the statute defines them, faces life imprisonment without the possibility of parole or extended supervision, § 939.62(2m)(b)1. and (c).

Registration for life. A conviction requires registration under § 301.45. For most sex offenses the period generally ends 15 years after discharge, § 301.45(5)(a). For first- and second-degree sexual assault it does not end: § 301.45(5)(b)1m. requires a person convicted under § 940.225(1) or (2) to comply until death, after one conviction. Third-degree sexual assault is not on that list.

Lifetime supervision. Section 940.225(2) is a “serious sex offense” under § 939.615(1)(b)1. If notice concerning lifetime supervision was given under § 973.125, the court may place the person on lifetime supervision when it determines that is necessary to protect the public, § 939.615(2)(a).

Firearms. Any felony conviction makes possessing a firearm a Class G felony under § 941.29(1m)(a).

The evidence rules specific to these cases

Rape shield, § 972.11(2). In a § 940.225 prosecution, evidence of the complaining witness’s prior sexual conduct, and opinion or reputation evidence about it, is inadmissible except for three categories: the complaining witness’s past conduct with the defendant; specific instances showing the source or origin of semen, pregnancy or disease; and prior untruthful allegations of sexual assault made by the complaining witness. Whether evidence fits an exception is decided before trial, and the bar applies whatever the purpose of the evidence.

Manner of dress. Under § 972.11(2)(d), evidence of how the complaining witness was dressed is admissible only if it is relevant to a contested issue and its probative value substantially outweighs the danger of unfair prejudice, confusion or delay, and the court must rule on it by pretrial motion.

Marriage is not a defense. A defendant is not presumed incapable of violating § 940.225 because of marriage to the complainant, § 940.225(6).

The time limit and DNA

The general felony limit is 6 years, § 939.74(1). Second-degree sexual assault has its own: a prosecution may be commenced within 20 years after the violation, § 939.74(2)(ar). Third-degree has 10 years, and first-degree has none, § 939.74(2)(a)1.

Under § 939.74(2d)(c), if the State collects biological material before the time limit expires, identifies a DNA profile and compares it to profiles of known persons, it may commence prosecution within 12 months after the comparison produces a probable identification, or within the ordinary limit, whichever is later. An old allegation can therefore become a new case.

From the investigation to the preliminary hearing

The investigation. Many cases begin before any charge: a request for an interview, a phone download, a DNA swab, a recorded call, or a search warrant for messages and location data. Anything said to detectives before a lawyer is involved becomes part of the complaint.

The initial appearance. A court commissioner reads the complaint, sets bail and imposes conditions of release, typically including no contact with the complaining witness. Those conditions take effect immediately, and a violation can be charged as bail jumping.

The preliminary hearing. Under § 970.03(2), it must begin within 10 days of the initial appearance if the person is in custody with bail set over $500, or within 20 days if the person has been released, unless the parties stipulate or the court extends it for cause.

How we approach the defense

  1. Identify the paragraph. Each paragraph of § 940.225(2) has different elements. Which one is charged decides whether consent, force, injury, knowledge, capacity or status is what the State must prove.
  2. Read the complaint against the elements. Each count has to stand on its own, and contact and intercourse are defined terms under § 940.225(5).
  3. Examine the investigation. Interviews, recorded calls, phone extractions, warrants and consent searches. Evidence obtained unlawfully can be suppressed, and statements can be challenged.
  4. Examine the forensic evidence. DNA, medical examinations, digital messages and location data are analyzed by experts, not taken from the report.
  5. Apply the evidence rules. The § 972.11(2) motions are decided before trial and shape what the jury will hear.
  6. Address the degree. A second-degree conviction means lifetime registration under § 301.45(5)(b)1m.; a third-degree conviction generally does not. The facts the State can prove decide whether second degree is the right charge at all.

Call before the first court date

These cases are handled confidentially. Call (262) 632-5000, answered 24 hours a day, or contact Cafferty, Scheidegger & Johnson for a free consultation at 840 Lake Avenue in Racine or 7001 30th Avenue in Kenosha. If detectives have asked to talk to you, or you have learned of an investigation and have not been charged, call before you speak to anyone. Spanish-speaking clients can read this page in Spanish and speak with attorney Juan S. Ramirez directly.

Sources:

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Frequently Asked Questions

What is second-degree sexual assault in Wisconsin?
Second-degree sexual assault is defined in Wis. Stat. § 940.225(2). It is not one offense but a list of them, each a separate way of committing the crime. The most common are sexual contact or sexual intercourse without consent by use or threat of force or violence, § 940.225(2)(a); without consent and causing injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care, § 940.225(2)(b); with a person the defendant knows is unconscious, § 940.225(2)(d); and with a person under the influence of an intoxicant to a degree that renders the person incapable of giving consent, where the defendant has actual knowledge of that incapacity, § 940.225(2)(cm). Other paragraphs cover a mental illness or deficiency the defendant knows of, being aided or abetted by another person, and contact by facility employees, correctional staff, probation and parole agents, care providers and law enforcement officers with the people in their charge.
What is the penalty for second-degree sexual assault in Wisconsin?
Every form of second-degree sexual assault is a Class C felony under § 940.225(2). Under § 939.50(3)(c), a Class C felony is punishable by a fine of up to $100,000, up to 40 years of imprisonment, or both. Under § 973.01(2), a prison sentence is bifurcated: the confinement portion may not exceed 25 years and the extended supervision portion may not exceed 15 years for a Class C felony. A person with a prior conviction for first- or second-degree sexual assault faces a mandatory minimum of 3 years and 6 months of confinement and cannot be placed on probation, § 939.618(2)(a).
How long does the State have to file second-degree sexual assault charges?
Twenty years. Section 939.74(2)(ar) provides that a prosecution for a violation of § 940.225(2) may be commenced within 20 years after the commission of the violation, instead of the general 6-year felony limit in § 939.74(1). Section 939.74(2d) can extend that further when the State collects biological material and identifies a DNA profile before the time limit expires: prosecution may then be commenced within 12 months after the DNA comparison produces a probable identification, if that is later. A prosecution commences when a warrant or summons is issued, an indictment is found, or an information is filed.
What does consent mean under Wisconsin law?
Section 940.225(4) defines consent as 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 an element in some paragraphs of § 940.225(2) and not in others. The statute says consent is not an issue under § 940.225(2)(c), (cm), (d), (g), (h) and (i), and § 940.225(2)(k) says the same for the law enforcement paragraph. The official annotations note the Wisconsin Supreme Court's holding that failure to resist is not consent, State v. Clark, 87 Wis. 2d 804 (1979). Which paragraph is charged therefore decides whether consent is part of what the State has to prove at all.
Will I have to register as a sex offender?
Yes, and for life. A violation of § 940.225(2) is a 'sex offense' under § 301.45(1d)(b), and § 301.45(1g)(a) requires a person convicted of a sex offense to register. Most sex offenses carry a registration period that generally ends 15 years after discharge, § 301.45(5)(a). First- and second-degree sexual assault do not: § 301.45(5)(b)1m. requires a person convicted of a violation of § 940.225(1) or (2) to comply with the registry until his or her death, after a single conviction. Third-degree sexual assault is not on that list, so whether a case ends in a second- or a third-degree conviction is the difference between lifetime registration and the 15-year period. Second-degree sexual assault is also a 'serious sex offense' for which the court may order lifetime supervision under § 939.615.
What is the difference between second-degree sexual assault and second-degree sexual assault of a child?
They are different statutes. Second-degree sexual assault under § 940.225(2) is the adult offense discussed on this page. Second-degree sexual assault of a child is § 948.02(2): sexual contact or sexual intercourse with a person who has not attained the age of 16, also a Class C felony. Consent is not part of the child offense. Both require registration for life after a single conviction, § 301.45(5)(b)1m. If the complaint charges § 948.02, see our sex with a minor defense page.
How does second-degree differ from first-, third- and fourth-degree sexual assault?
First-degree, § 940.225(1), is a Class B felony, up to 60 years, and covers conduct causing pregnancy or great bodily harm, use of a dangerous weapon, force with the aid of another person, and a second-degree violation against a person 60 or older or an adult at risk the defendant knew was one. Second-degree, § 940.225(2), is a Class C felony, up to 40 years. Third-degree, § 940.225(3), is a Class G felony, up to 10 years and $25,000 under § 939.50(3)(g), and covers sexual intercourse without consent and certain contact without consent. Fourth-degree, § 940.225(3m), is a Class A misdemeanor for sexual contact without consent. The difference between degrees is often the difference in the facts the State can prove.
Can the complaining witness's sexual history be used at trial?
Generally not. Wisconsin's rape shield law, § 972.11(2)(b), bars evidence of the complaining witness's prior sexual conduct, and opinion or reputation evidence about it, in a § 940.225 prosecution. It has three exceptions: evidence of the complaining witness's past conduct with the defendant; specific instances showing the source or origin of semen, pregnancy or disease; and evidence of prior untruthful allegations of sexual assault made by the complaining witness. The court decides admissibility before trial, and § 972.11(2)(c) applies the bar whatever the purpose of the evidence unless one of those exceptions applies.
What happens after an arrest in Racine or Kenosha County?
The first court date is the initial appearance, usually before a court commissioner, where the complaint is read, bail is set and conditions of release are imposed, typically including no contact with the complaining witness. Those conditions take effect immediately, and a violation can be charged as bail jumping. Next is the preliminary hearing. Under § 970.03(2) it must begin within 10 days of the initial appearance if the person is in custody with bail over $500, or within 20 days if released, unless extended. Call Cafferty, Scheidegger & Johnson, S.C. at (262) 632-5000 before the initial appearance if you can.

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