Sexual assault of a child by a school staff person is a serious felony charge. Contact our defense attorneys at (414) 270-0202 for help.
Section 948.095(2) of the Wisconsin Statutes prohibits a crime called sexual assault of a child by a school staff person. The offense is a Class H felony, meaning the maximum penalty upon conviction is 6 years prison and $10,000.00 in fines. That six years prison breaks down into 3 years initial confinement and 3 years extended supervision. A conviction also carries mandatory sex offender registration.
This charge focuses on sexual relationships between school personnel and students. The statute covers any person who provides services to a school or school board, which extends well beyond classroom teachers. Substitute teachers, coaches, custodians, cafeteria workers, contracted service providers, and even bus drivers all fall within the definition of “school staff.” The student must be enrolled in the same school or school district, and the student must be older than 16 but younger than 18 years old.
Charges like sexual assault of a child by a school staff person attract immediate media attention. Local news outlets regularly cover cases involving school employees and students, and the resulting coverage can damage your reputation before any evidence is tested in court. At Van Severen Law Office, our criminal defense attorneys have a significant amount of experience defending tough cases that receive attention from the media.
Our firm focuses all of its time and resources on criminal defense. It’s all we do, all we learn about, and all we care about. We don’t work on divorces or draft contracts because that kind of work does not help criminal defendants. It doesn’t make your sexual assault case any easier. To speak with the sexual assault defense attorneys at Van Severen Law Office, call us at (414) 270-0202. We’re available 24/7.
What does section 948.095(2) of the Wisconsin Statutes prohibit?
Section 948.095(2) provides the law that prohibits sexual assault of a child by a school staff person. The language of the statute is as follows:
(2) Whoever has sexual contact or sexual intercourse with a child who has attained the age of 16 years and who is not the defendant’s spouse is guilty of a Class H felony if all of the following apply:
(a) The child is enrolled as a student in a school or a school district. (b) The defendant is a member of the school staff of the school or school district in which the child is enrolled as a student.
Let’s hit a few important points:
The student and the staff member must be connected to the same school or school district. If a student attends School A but the defendant works at School B in a different district, there is no basis for this charge.
Both sexual contact and sexual intercourse are prohibited, and the spousal exception means the charge does not apply if the defendant and the student are married.
The statute focuses on children who are at least 16 but not yet 18. If the student is younger than 16, this section does not apply. Prosecutors in that situation would pursue first degree sexual assault of a child or second degree sexual assault of a child instead, both of which carry significantly higher penalties. Prosecutors certainly aren’t trying to do criminal defendants any favors and will usually try to stick them with the most serious charges they can.
What are the elements of sexual assault of a child by a school staff person?
All criminal charges in Wisconsin have elements. An element is a component of the offense and must be proven beyond a reasonable doubt by the government. Wisconsin Criminal Jury Instruction 2139 provides the elements of sexual assault of a child by a school staff person involving sexual contact. The elements are as follows:
Firstly, the defendant had sexual contact with the victim. The victim was not the defendant’s spouse; and
Secondly, the defendant acted with intent to become sexually aroused or gratified, or to humiliate the victim; and
Thirdly, the victim had attained the age of 16 years and had not attained the age of 18 years; and
Fourthly, the was enrolled as a student in a school or a school district; and
Finally, the defendant was a member of the school staff of the school or school district in which (name of victim) was enrolled as a student.
The jury instructions make a few things clear. Consent is not a defense, and it does not matter if the student agreed to the sexual contact. It does not matter whether the defendant knows the victim’s age. And a mistake regarding the victim’s age is not a defense. In other words, believing the student was 18, when he or she was 17, is not a defense.
Importantly, the instructions we just discussed involve sexual contact cases. For those involving sexual intercourse, review Wisconsin Criminal Jury Instruction 2139C.
(a)Any of the following types of intentional touching, whether direct or through clothing, if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant:
1. Intentional touching by the defendant or, upon the defendant’s instruction, by another person, by the use of any body part or object, of the complainant’s intimate parts.
2.Intentional touching by the complainant, by the use of any body part or object, of the defendant’s intimate parts or, if done upon the defendant’s instructions, the intimate parts of another person.
3.Touching by the complainant of the ejaculate, urine, or feces of any person upon the intentional instructions of the defendant, upon the use or threat of force or violence by the defendant, or upon an intentional act of the defendant.
(b)Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant or, upon the defendant’s instruction, by another person upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant.
(c) For the purpose of sexually degrading or humiliating the complainant or sexually arousing or gratifying the defendant, intentionally causing the complainant to ejaculate or emit urine or feces on any part of the defendant’s body, whether clothed or unclothed.
And sexual intercourse:
Section 948.01(6) of the Wisconsin Statutes defines sexual intercourse. It means means vulvar penetration as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal opening either by the defendant or upon the defendant’s instruction. Emitting semen is not required.
Who qualifies as “school staff” under this statute?
School means a public or private elementary or secondary school, or a tribal school as defined in section 115.001(15m). This includes public schools, private schools, religious schools, charter schools, and tribal schools. It does not include colleges, universities, or technical schools.
School staff means any person who provides services to a school or a school board, including an employee of a school or a school board and a person who provides services to a school or a school board under a contract. This definition is broad. It covers teachers, administrators, counselors, coaches, custodians, kitchen staff, and school bus drivers. It also covers substitute teachers, who provide services under contract.
The Wisconsin Court of Appeals addressed the scope of this definition in State v. Kaster, 2003 WI App 105, 264 Wis. 2d 751, 663 N.W.2d 390. The court held that the terms “employee” and “under contract” are illustrative examples and do not limit the definition. The relevant question is whether the person “provides services” to the school or school board. Outside contractors can qualify. If a school contracts with a landscaping company for grounds maintenance, employees of that company arguably provide services to the school and may fall within this definition.
Sexual assault of a child by a school staff person is a felony in Wisconsin. Contact Van Severen Law Office, S.C. to speak with one of our top criminal defense attorneys. (414) 270-0202
How does this charge differ from sexual assault by a person who works or volunteers with children?
Section 948.095 contains two distinct offenses. Subsection (2) covers school staff, while subsection (3) covers a broader category of adults who work or volunteer with children outside of school settings.
The school staff version under subsection (2) has no minimum age for the defendant. Any school staff member, regardless of age, can be charged. The victim must be a student enrolled in the defendant’s school or school district. The relationship between the defendant and victim is institutional, defined by the school connection.
Sexual assault of a child by a person who works or volunteers with children under subsection (3) requires the defendant to be at least 21 years old. It applies to coaches, youth counselors, child care workers, and others in occupations or volunteer positions requiring direct work with children. If the facts satisfy both subsections, subsection (2) takes priority and subsection (3) does not apply. This means school staff members are always charged under subsection (2) when their conduct involves a student enrolled in their school.
Related charges prosecutors may also file
Prosecutors regularly file additional charges alongside sexual assault of a child by a school staff person when the underlying facts support it. Multiple charges arising from the same course of conduct increase the total potential penalties a defendant faces.
Sexual misconduct by a school staff person or volunteer under section 948.098 is an offense created by 2023 Wisconsin Act 200. It is a Class I felony and covers conduct broader than sexual contact or sexual intercourse, including verbal conduct of a sexual nature and physical contact of a sexual nature that falls short of what section 948.095 requires.
Second degree sexual assault of a child under section 948.02(2) is a Class C felony carrying up to 40 years in prison. If the victim was under 16, prosecutors will likely charge this offense instead of 948.095(2).
Grooming of a child under section 948.072 targets adults who build relationships with children for the purpose of eventual sexual contact or exploitation. School employees who gradually escalate a relationship with a student before initiating sexual contact may face this charge.
Use of a computer to facilitate a child sex crime under section 948.075 applies when electronic communication played a role in the offense. Text messages, social media direct messages, and emails between the defendant and the student are commonly introduced as evidence in these cases, and the use of those platforms can support a standalone charge.
Sex offender registration is mandatory upon conviction
A conviction for sexual assault of a child by a school staff person triggers mandatory sex offender registration. Section 948.095 is listed as a “sex offense” under section 301.45(1d)(b) of the Wisconsin Statutes. The offense is also enumerated in section 973.048(2m), which requires the sentencing court to order sex offender registration for specified Chapter 948 offenses.
Registration is not discretionary for this charge. Upon conviction, the court shall require the defendant to comply with the reporting requirements under section 301.45.
Registered sex offenders in Wisconsin must provide extensive personal information to the Department of Corrections, including their address, employment, school enrollment, and online accounts. They must update this information within 10 days of any change and verify it annually. Knowingly failing to comply with registration requirements is a separate Class H felony.
How do criminal defense attorneys challenge this charge?
Every case is different, and the defense strategy depends on the specific facts. Several areas of defense are common in prosecutions under this statute.
Handling media attention
Cases involving school employees and students attract media coverage. Reporters may contact your employer, show up at your home, and attempt to reach you by phone. Do not engage with the media. Statements you make to reporters are not constitutionally protected and can be used against you. Family members who speak on your behalf create the same risk. If a reporter contacts you, decline to comment and walk away. Your criminal defense attorney will handle media communication if it becomes beneficial to your defense.
Legal defenses at the pretrial and trial stages
Credibility is a central issue in many of these cases. The government’s case often depends on the testimony of the complaining witness. Our attorneys examine the circumstances of the allegation, including how and when the disclosure was made and whether the account has remained consistent. Filing a Shiffra Green motion may allow access to the complaining witness’s mental health or counseling records when relevant to credibility.
The “school staff” element is another area that can be challenged. State v. Kaster broadened the definition, but the government still must prove the defendant’s role falls within it. Depending on the relationship, and how far it strays from the definition, your criminal defense attorney may have a route to challenge the charges based on this factor alone.
Contact Van Severen Law Office for sexual assault defense
The criminal defense attorneys at Van Severen Law Office focus 100% of their time on criminal defense. We regularly defend sexual assault cases, including charges under section 948.095 and related statutes. We understand the legal, professional, and personal consequences these charges carry, and we understand that building a strong defense requires an attorney who handles these cases routinely.
Contact Van Severen Law Office at (414) 270-0202 to schedule a free consultation with any of our criminal defense attorneys. We’re available 24/7.
Frequently asked questions
Does the defendant have to be a teacher to be charged under this statute?
No. The definition of “school staff” extends far beyond teachers. It includes any person who provides services to a school or school board, whether as an employee or under a contract. Coaches, counselors, custodians, kitchen workers, bus drivers, substitute teachers, and contracted service providers all fall within the definition. The Wisconsin Court of Appeals confirmed this broad interpretation in State v. Kaster, 2003 WI App 105.
Can the victim’s consent serve as a defense?
No. Consent is not a defense to sexual assault of a child by a school staff person. Wisconsin Criminal Jury Instruction 2139 states this explicitly. The legislature recognized that the power dynamic between school staff and students makes consent legally irrelevant. Even if the student initiated or willingly participated in the contact, the defendant can still be convicted.
What if the student is enrolled at a different school in the same district?
The statute covers school staff who work in the same school or school district in which the victim is enrolled. If the defendant works at one school but the student is enrolled at a different school within the same district, the charge can still apply. The connection does not need to be to the same individual building. A teacher at a district’s high school and a student at that district’s middle school are within the same school district.
Will a conviction prevent me from working in education?
A conviction carries consequences beyond the criminal penalties. The Department of Public Instruction can revoke a teaching license upon a criminal conviction, and section 115.31(2r) restricts reinstatement when the conviction involves certain crimes against children. A conviction under 948.095 also triggers section 948.13, which makes it a Class F felony for a convicted child sex offender to subsequently work or volunteer in a position requiring direct contact with children under 16. These combined consequences effectively end a career in education.
How does the sexual misconduct statute (section 948.098) relate to this charge?
Section 948.098 was created by 2023 Wisconsin Act 200 and covers sexual misconduct by a school staff person or volunteer. It reaches conduct that falls below the threshold of sexual contact or sexual intercourse, including verbal conduct of a sexual nature and physical contact for purposes of sexual arousal, gratification, degradation, or humiliation. It is a Class I felony rather than a Class H felony. If the conduct amounts to actual sexual contact or sexual intercourse, prosecutors will typically charge under section 948.095(2) because it carries the higher penalty. If the conduct is inappropriate but does not rise to the level of sexual contact or intercourse, section 948.098 provides prosecutors with an additional tool.
