Second degree sexual assault

What is second degree sexual assault?

Sexual assault charges are often based on the circumstances surrounding the alleged sexual acts.  That’s also how their degrees and penalties are defined.  Second degree sexual assault has ten different versions.  Section 94.0225(2) of the Wisconsin Statutes provides those:

• The defendant had sexual contact or sexual intercourse with another person.  The sex occurred without consent of the victim.  Finally, it occurred by use or threat of force or violence;
• The defendant had sexual contact or sexual intercourse with another person.  That other person did not consent to the sex.  Finally, the sex caused injury, illness, disease, or impairment of a sexual or reproductive organ, or mental anguish causing psychiatric care of the victim;
• Defendant had sexual contact or sexual intercourse with another person.  That other person suffers from mental illness or deficiently that renders the person incapable of appraising his or her conduct.  In this case, the defendant must know of the mental condition;
• Defendant had sexual contact or intercourse with another person, while the other person was under the influence of an intoxicant.  That intoxication must render the other person incapable of giving consent to the sexual contact or intercourse.  Finally, the defendant had the purpose to have sexual contact or intercourse with the person while the person wasn’t able to give consent;
• The defendant had sexual contact or intercourse with a person who the he/she knew was unconscious;
• The defendant is aided or abetted by another person, and had sexual contact or intercourse with the victim.  There was no consent.

Sexual assault charges based on employment or status

The above-referenced second degree sexual assault charges rely on the circumstances of the act.  Prosecutors pursue second-degree rape charges in Wisconsin based upon your license, employment status, or involvement with the government.  Here are a few additional ways those charges occur:

• Defendant is employed at an adult family home, community-based residential facility, inpatient health care facility, or state treatment facility, and has sexual contact or intercourse with a resident of said facility;
• A correctional facility employs the defendant as a correctional staff member.  The defendant has sexual contact/intercourse with an individual confined in said institution;
• The defendant works as a probation, parole, or extended supervision agent.  And the defendant uses his or her position to engage in sexual contact or intercourse with the victim;
• Finally, the defendant is a licensee, employee, or nonclient resident of an entity as a child welfare organization, and had sexual contact or intercourse with the victim.

What are the elements of this criminal charge?

Elements define criminal charges in Wisconsin.  Elements are parts of the offense.  And to succeed prosecuting you, the government must prove each element beyond a reasonable doubt.  Should the government fail to satisfy its burden for any element, you cannot be found guilty of the offense.

Wisconsin criminal jury instruction 1208 provides the elements of second degree sexual assault: sexual contact or intercourse without consent by use or threat of force or violence:

• Firstly, the defendant had sexual contact or intercourse with the victim; and
• Secondly, the victim did not consent to the sexual contact or intercourse; and
• Thirdly, the defendant had sexual contact or intercourse with the victim by use or threat of force.

The “use or threat of force or violence element … is satisfied if the use or threat of force or violence is directed to compelling the victim’s submission.  The element is satisfied whether the force is used or threatened as part of the sexual contact or whether it is used or threatened as part of the sexual contact to compel the victim’s submission.

What about a sexual assault when the victim is passed out?

This is another frequent scenario we encounter while fighting second-degree sexual assault charges.  The victim alleges that she was passed out, whether by intentional means or because or some kind of nefarious intoxication.  Wisconsin Criminal Jury Instruction 1213 provides the elements of second degree sexual assault: sexual contact or intercourse with a person the defendant knows is unconscious:

• Firstly, the defendant had sexual contact or intercourse with the victim; and
• Secondly, the victim was unconscious at the time of the sexual contact or intercourse; and
• Thirdly, the defendant knew the victim was unconscious at the time of the sexual contact or intercourse.

What does it mean to be unconscious?  While the jury instruction itself does not provide us that definition, it does reference Webster’s New Collegiate Dictionary for the definition:

The dictionary “defines ‘unconscious’ as ‘not knowing or perceiving, or being aware.'”

The notes further indicate “The Committee believes the common meaning of unconscious includes the loss or awareness caused by intoxication, the taking of drugs, or heavy sleep.”

What is sexual contact or sexual intercourse?

Sexual contact simply refers to the intentional touching of the victim’s intimate parts, by the defendant.  Importantly, it doesn’t matter whether the touching occurred over or under clothing.  And finally, the touching may be done with any part of the defendant’s body, or any object possessed by the defendant, but it must be done intentionally.  Unless the government can show the act was intentional, it isn’t sexual contact.

Sexual intercourse refers to any intrusion of the victim’s body, by the defendant’s body or an object controlled by the defendant.  The intrusion must be into the genital or anal opening of another.  This definition includes oral sex.

How do we defend my sexual assault or rape charge?

The first step our criminal defense attorneys take in any case is to pull the criminal jury instructions and compare them to the facts in your case.  The reason we do this is simple – if the government cannot prove each element beyond a reasonable doubt, they cannot obtain a conviction against you.  If they fail to secure that conviction, we’ve succeeded in protecting your record and keeping you out of prison.

Even if the government believes they’ve satisfied their burden, there are other areas of law we need to dive into.  First of all, did you confess to the offense?  While a confession certainly aggravates your situation, we need to analyze the interview thoroughly.  Did police properly read your Miranda rights?  Did they force you to waive those rights?  And beyond constitutional issues, did you provide a false confession to police?  Successfully challenging your statements to police will make your case stronger.

Did police execute a search warrant on your home?  This could also lead us to some success.  If the police executed an illegal search warrant on your home, we may be able to suppress the evidence they illegally obtained.  For example, police frequently look for digital media, laptops, bedsheets, used contraceptives, and other materials in an attempt to solidify their case.  If the search warrant that led to these results was improper, a court may suppress the evidence for use at trial.

Finally, is the alleged victim lying?  Frequently we encounter situations where the “victim” is simply a liar trying to cover his or her cheating or lying behavior.  If you cheated on your boyfriend, what better way to cover yourself than to say you were raped?  Digging into the victim’s sordid past could result in material that hurts or destroys her credibility.

Contact a top Milwaukee criminal defense attorney

At Van Severen Law Office we defend individuals charged with serious crimes throughout the state.  We’ve traveled across the state to aggressively fight sexual assault charges for clients.  And the reason for that is simple: potential clients recognize our criminal defense attorneys as specialists.

Actual clients benefit from our decades of experience.  If you’d like to become a client of Van Severen Law Office, call us at (414) 270-0202.  At first we’ll begin with a confidential free consultation.  After that, we can start fighting your case.  Remember: at Van Severen Law Office, we focus on providing representation from some of the top sexual assault defense attorneys in Wisconsin.