Second degree sexual assault defense - sexual contact or intercourse with a person who is under the influence of an intoxicant

Second degree sexual assault of a victim under the influence of an intoxicant is a serious criminal charge.  Contact us for help: (414) 270-0202

Second degree sexual assault is a scary criminal charge.  It’s a Class C felony, meaning the maximum sentence for this offense is 40 years prison, $100,000.00 in fines, or both.  That 40 year prison sentence breaks down into 25 years initial confinement followed by 15 years extended supervision.  A conviction also carries mandatory sex offender registration and reporting.  Although no mandatory minimum penalty applies, it’s important to recognize the gravity of this charge and how a conviction will change the rest of your life.

The purpose of this article is to provide you some basic information regarding second degree sexual assault: sexual contact or intercourse with a person who is under the influence of an intoxicant.  The focus of this criminal charge is on consent, specifically lacking the ability to consent to sexual contact or intercourse due to intoxication.  No force is required.  No threats are required.  If you know that the person you’re having sex with is too intoxicated to consent to the sex (or just sexual contact), you’ve probably satisfied the factual requirements of this charge.

At Van Severen Law Office, a significant amount of the work we do is focused on sexual assault charges.  And we’ve seen it all: alleged victims who have “buyer’s remorse” after having sex, alleged victims who are lying to get out of a cheating accusation by a spouse, and alleged victims that are just lying.  Presenting these kinds of facts to juries turns things around quickly, which is one of the reasons we believe in thoroughly investigating these charges.  Call us at (414) 270-0202.  Let’s discuss your charge and how our criminal defense lawyers can help.

Section 940.225(2)(cm) of the Wisconsin Statutes: 2nd degree sexual assault: sexual contact or intercourse with a person who is under the influence of an intoxicant

Let’s start with the law itself.  Section 940.225(2)(cm) of the Wisconsin Statutes indicates:

(2) Second degree sexual assault. Whoever does any of the following is guilty of a Class C felony:

…
(cm) Has sexual contact or sexual intercourse with a person who is under the influence of an intoxicant to a degree which renders that person incapable of giving consent if the defendant has actual knowledge that the person is incapable of giving consent and the defendant has the purpose to have sexual contact or sexual intercourse with the person while the person is incapable of giving consent.

So what is “incapable of giving consent”?  Let’s consider a straightforward example: A man meets a woman at the bar.  She feeds him shots all night until he’s too drunk to stand.  At the woman’s request, the two go back to her apartment.  The man passes out drunk after kissing her for a bit.  He’s asleep.  Obviously the man cannot consent to sexual contact or intercourse in this state.  Should the woman proceed, she’s exposing herself to the potential of 2nd degree sexual assault charges.  The fact that the man had kissed her prior to passing out does not mean he consented.

That’s easy to understand, but borderline cases might not be.  What happens when the victim is still communicating, but seems a little drunk?  Let’s continue on to the jury instructions for further clarification regarding of the law.

Wisconsin Criminal Jury Instruction 1212 – Second degree sexual assault: sexual contact or intercourse with a person who is under the influence of an intoxicant

Jury instructions aren’t just instructions for the jury.  Criminal defense attorneys use them when preparing defenses against criminal charges.  Prosecutors use them when considering criminal charges against defendants.  And courts frequently use them during plea hearings and sentencing hearings.  Jury instructions are important because they contain the elements of a criminal charge.  Elements are the parts of an offense that the government must prove beyond a reasonable doubt.

Wisconsin Criminal Jury Instruction 1212 provides the instructions for second degree sexual assault: sexual contact or intercourse with a person who is under the influence of an intoxicant:

• Firstly, the defendant had sexual contact or intercourse with the victim.
• Secondly, the victim was under the influence of an intoxicant at the time of the sexual contact or intercourse.
  • “Intoxicant” means any alcoholic beverage, hazardous inhalant, controlled substance, controlled substance analog or other drug, or any combination thereof.
• Thirdly, the victim was under the influence of an intoxicant to a degree which rendered him incapable of giving consent.
• Fourthly, the defendant had actual knowledge that the victim was incapable of giving consent.
• And finally, the defendant had the purpose to have sexual contact or intercourse while the victim was incapable of giving consent.
  • “Consent” means words or actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact.

2nd degree sexual assault and issues we’ve encountered

So we’ve gone through the law and one thing is clear: there isn’t a firm definition of “unable to give consent.”  Instead, lawmakers appear comfortable giving this decision to jurors.  Unfortunately, it’s our opinion that this flimsiness gives way to individuals prepared to abuse the law.  We’ve worked on cases involving alleged victims who only started claiming sexual assault after they were discovered cheating on a partner.  We’ve worked on other cases involving “victims” who simply regretted their decisions the night before.  Rather than facing consequences or being honest, they decided to lie.  “I was drunk” is enough for some police and prosecutors to take their side.  Unfortunately, that statement is also enough to trigger a criminal rape investigation.

We’re uncomfortable with that.  It’s scary to think that one night you’re out enjoying your time and you think you’ve met someone you click with, and then you’re in handcuffs being interrogated a day or two later.  What’s our advice?  It’s the safest, most conservative we can give.  Make sure you have consent, and make sure you’re comfortable the person giving the consent isn’t intoxicated.

Contact Van Severen Law Office, S.C. for help from a Milwaukee criminal defense attorney: (414) 270-0202

A conviction for sexual assault could send you to prison for decades.  For some defendants, such a sentence is the rest of their lives.

The Wisconsin criminal defense attorneys at Van Severen Law Office, S.C. regularly fight tough criminal charges like this.  We’ve won when facing sexual assaults, homicides, and other serious, felony-level criminal charges for clients who thought their lives were over.

On top of being excellent criminal defense lawyers, we believe in fair and transparent pricing.  Due to that, we don’t charge potential clients for initial consultations.  We take these meetings as a chance to sit down and talk about your case, answer your questions, and to begin discussing potential defensive strategies.  Once that meeting has concluded, we’ll discuss giving you the opportunity to continue representation with our firm.  Contact us at (414) 270-0202 to speak with our staff about moving forward or learning more about our firm.