First degree sexual assault of a child defense attorneys

What are the elements of first degree sexual assault of a child: sexual contact or intercourse with a child who has not attained the age of 13: causing great bodily harm?

All crimes in Wisconsin have elements.  Elements are parts of the offense, and the government must prove each element beyond a reasonable doubt.  If they fail, they cannot convict you of the offense.  Wisconsin Criminal Jury Instruction 2102A provides the elements of this first degree sexual assault of a child charge:

• Firstly, the defendant had sexual contact or intercourse with the victim; and
• Secondly, the victim was under the age of 13 years at the time of the alleged sexual contact or intercourse; and
• Thirdly, the defendant caused great bodily harm to the victim.  Finally, the term great bodily harm means injury which creates a substantial risk of death or which causes serious permanent disfigurement or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or another serious bodily injury.

Importantly, the Wisconsin Legislative Council Act Memo for 2007 Wisconsin Act 80 further discusses great bodily harm: … “harm to the victim caused by the offender at the time of the first-degree sexual assault of a child, and not necessarily caused by the sexual intercourse or act, would satisfy the great bodily harm element.  In plain language, this means that certainly any injury that occurs during the incident, not one from the sex act, satisfies the great bodily harm requirement.

Finally, this offense is a Class A felony, meaning that upon conviction for the offense the defendant is sentenced to life in prison.

First degree sexual assault of a child: sexual intercourse with a person who has not attained the age of 12 years

Wisconsin criminal jury instruction 2102B provides the elements of this offense:

• Firstly, the defendant had sexual intercourse with the victim; and
• Secondly, the victim was under the age of 12 years at the time of the alleged sexual intercourse.

This offense is a Class B felony, meaning the maximum penalty upon conviction is 60 years in prison.  Certainly this kind of imprisonment indicates how serious these charges are.

An example of this offense: The defendant has sex with his 11 year old step-daughter.  The simple fact of the intercourse satisfies the first element of the crime.  And because the step-daughter is 11 years old, the facts satisfy the second element.  Importantly, this situation could also result in charges for incest with a child.

What about a situation involving the defendant simply grabbing the breast of his step-daughter? While this conduct is sexual contact, it is not sexual intercourse.  Therefore, in this example, prosecutors couldn’t charge first-degree sexual assault of a child under this subsection.

First degree sexual assault of a child: sexual intercourse with a person who has not attained the age of 16 years by use or threat of force or violence

Wisconsin Criminal Jury Instruction 2102C provides the elements of this offense:

• Firstly, the defendant had sexual intercourse with the victim; and
• Secondly, the victim was under the age of 16 years at the time of the alleged sexual intercourse; and
• Thirdly, the defendant had sexual intercourse with the victim by the use or threat of force or violence.

Finally, the defendant’s knowledge of the victim’s age is not required.  Mistake regarding the child’s age isn’t required either.

This offense is a Class B felony, meaning the maximum penalty carries 60 years prison.

An example of this offense:  The 25 year old defendant has sex with a 15 year old.  The defendant threatened to kill the victim if she didn’t have sex with him.  The act requirement is satisfied, the age requirements are satisfied, and the defendant threatened force against the victim.  Like our previous example, in this case simple sexual contact wouldn’t qualify as first degree sexual assault.  But this would qualify as first degree sexual assault of a child under section 948.02(1)(d), which we discuss next.

First degree sexual assault of a child: sexual contact with a person who has not attained the age of 16 years by use or threat of force or violence by a person who has attained the age of 18 years

Wisconsin Criminal Jury Instruction 2102D explains the elements of this offense:

• Firstly, the defendant had sexual contact with the victim; and
• Secondly, the defendant had attained the age of 18 years; and
• Thirdly, the victim was under the age of 16 years at the time of the alleged sexual contact; and
• Finally, the defendant had sexual contact with victim by use or threat of force of violence.

Like all other versions of this offense, the defendant doesn’t need to know how old the victim is. Further, mistake regarding the victim’s age isn’t a defense to the charge.  But this makes sense.  Does it mitigate the offense considering the defendant though the victim was 17 years old, instead of 15?  Of course not.

Finally, let’s discuss an example of this first degree sexual assault of a child charge: The defendant grabs the breast of the victim.  Defendant is 19, victim is 15.  Finally, the defendant committed the act by holding the victim down to the ground and punching her.  This offense is similar to the last version of first degree sexual assault of a child, but focuses on contact rather than intercourse.

There’s one more version of this charge.

First degree sexual assault of a child: sexual contact or intercourse with a person who has not attained the age of 13 years.

Wisconsin Criminal Jury Instruction 2102E provides the elements of this offense:

• Firstly, the defendant had sexual contact or intercourse with the victim; and
• Secondly, the victim was under the age of 13 at the time of the alleged sexual contact or intercourse.

This version of the offense is a Class B misdemeanor too.  Clearly, this crime focuses on the face that the child is under the age of 13.  That’s the aggravating factor here.  The legislature made clear that any sexual contact or intercourse with someone under 13 is an aggravated offense.

How do we defend my criminal charges?

All criminal cases are different, and all of them require different strategies.  Sometimes credibility of the victim is an issue. In other words, the victim is a liar.  We’d likely employ an investigator to go out and speak with the victim and witnesses to the offense.  Digging up prior, unproven sexual assault allegations could lead to ammunition to use against your allegation.  Further, filing something like a Shiffra Green motion could allow us to get into the mental health records of the victim.  Certainly these materials could lead to a solid, aggressive attack on the victim’s credibility.

Second, was there a search that occurred during the investigation?  Was it a consent search, with a warrant, or under some kind of other scenario?  If there was a search warrant, our first step will be to review the affidavit in support of the search warrant.  Law enforcement must show that there is probable cause to believe that evidence of a crime will be located in the area they’re trying to search.  If not, the search warrant could be defective.  While there are a few more steps to fight, that could eventually lead to the suppression of evidence being used against you.

Finally, do all the elements of the crime apply?  We don’t provide these elements for no reason.  They’re important.  And if the government cannot prove each element, they cannot prove the charges against you.

Contact Van Severen Law Office and speak with one of our sexual assault defense attorneys

Sexual assault cases are different than other criminal charges.  They’re sensitive, and usually need to be attacked in very specific ways.  And they carry significantly higher penalties than other charges.  At Van Severen Law Office, we believe that serious charges like this should be attacked with the assistance of the best sexual assault defense attorneys in Wisconsin.

At Van Severen Law Office we specialize in defending charges like first degree sexual assault of a child.  We recognize the stakes you’re facing, and we’re prepared to assist you until the very end.

Finally, don’t hesitate to call us.  We answer phones 24/7 at (414) 270-0202.