MILWAUKEE SEXUAL ASSAULT ATTORNEYS

FIRST DEGREE SEXUAL ASSAULT DEFENSE

What is First Degree Sexual Assault?

The Milwaukee criminal defense attorneys at Birdsall Obear & Associates have decades of experience being the top sexual assault attorneys in Milwaukee and Sheboygan. A Class B felony for sexual assault can carry stiff penalties with a maximum of 40 years in prison.

The State must prove three elements in First Degree Sexual Assault, according to Section 940.225(1) of the Wisconsin Statutes:

1. Has had sexual contact or sexual intercourse with another person without consent of that person and causes pregnancy or great bodily harm to that person.
2. Has had sexual contact or sexual intercourse with another person without consent of that person by use or threat of use of a dangerous weapon.
3. Is aided or abetted by one or more other persons and has sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.

Wisconsin penalty for First Degree Sexual Assault: 40 years (Maximum)

A first degree sexual assault offense focuses on sexual assault causing great bodily harm:

1. Did the defendant have sexual contact or sexual intercourse with the victim
2. Did the victim consent to the sexual contact or sexual intercourse with the defendant
3. That the defendant caused great bodily harm to the victim

In Wisconsin, sexual contact is described as the intentional touching of the victim's intimate part by the defendant and has to be proven to be with purpose, whether to cause sexual arousal, gratification, to sexually humiliate the victim or cause bodily harm.

What is the definition of Sexual Intercourse according to law?
Sexual intercourse is defined as any intrusion into the genital or anal opening of another by any part of a person's body or object; this also includes oral sex.

In proving that the victim did not “consent", the State must show that the victim did not freely agree to have sexual contact with the defendant. This does not require that the victim offered physical resistance. The person only needs to say “no” or claim that they said “no.”

In defending a sexual assault case, the actions of both parties come into play. For example, a woman claiming rape who was drinking heavily, and acting very sexually toward you, and then voluntarily went with you, will not be easily believed on the matter of consent. The jury could conclude that under the circumstances, she did indeed give consent. The degree of harm is also a variable in sexual assault cases. What one juror finds to be a “great bodily harm” may be viewed by another as just “bodily harm” or even no harm.

SECOND DEGREE SEXUAL ASSAULT DEFENSE

What is Second Degree Sexual Assault?

The Milwaukee criminal defense attorneys at Birdsall Obear & Associates have decades of experience being the top sexual assault attorneys in Milwaukee and Sheboygan. A Class C felony for  second degree sexual assault in Milwaukee carries penalties with a maximum of 25 years in prison.

The State must prove these ten elements in Second Degree Sexual Assault, according to Section 940.225(2) of the Wisconsin Statutes:

1. Has had sexual contact or sexual intercourse with another person without consent of that person by use or threat of force or violence.
2. Has sexual contact or sexual intercourse with another person without consent of that person and causes injury, illness, disease or impairment of a sexual or reproductive organ, or mental anguish requiring psychiatric care for the victim.
3. Has sexual contact or sexual intercourse with a person who suffers from a mental illness or deficiency which renders that person temporarily or permanently incapable of appraising the person's conduct, and the defendant knows of such condition.
4. 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.
5. Has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.
6. Is aided or abetted by one or more other persons and has sexual contact or sexual intercourse with another person without the consent of that person.
7. Is an employee of a facility or program under s. 940.295 (2) (b), (c), (h) or (k) and has sexual contact or sexual intercourse with a person who is a patient or resident of the facility or program.
8. Has sexual contact or sexual intercourse with an individual who is confined in a correctional institution if the actor is a correctional staff member. This paragraph does not apply if the individual with whom the actor has sexual contact or sexual intercourse is subject to prosecution for the sexual contact or sexual intercourse under this section.
9. Has sexual contact or sexual intercourse with an individual who is on probation, parole, or extended supervision if the actor is a probation, parole, or extended supervision agent who supervises the individual, either directly or through a subordinate, in his or her capacity as a probation, parole, or extended supervision agent or who has influenced or has attempted to influence another probation, parole, or extended supervision agent's supervision of the individual. This paragraph does not apply if the individual with whom the actor has sexual contact or sexual intercourse is subject to prosecution for the sexual contact or sexual intercourse under this section.
10. Is a licensee, employee, or nonclient resident of an entity, as defined in s. 48.685 (1) (b) or 50.065 (1) (c), and has sexual contact or sexual intercourse with a client of the entity.

Wisconsin penalty for Second Degree Sexual Assault: 25 years (Maximum)

 The state needs to prove beyond a reasonable doubt, each of the following:

1. That the defendant has sexual contact with the victim
2. That the victim did not consent
3. That the defendant used threat or force to have sexual contact with the victim

Should the state be unable to prove all three, the defendant cannot be found guilty of  the charges.

THIRD DEGREE SEXUAL ASSAULT DEFENSE

What is Third Degree Sexual Assault?

The Milwaukee criminal defense attorneys at Birdsall Obear & Associates have decades of experience being the top sexual assault attorneys in Milwaukee and Sheboygan. A Class G felony for third degree sexual assault in Milwaukee carries penalties with a maximum of 5 years in prison.

The State must prove these two elements in Third Degree Sexual Assault, according to Section 940.225(3) of the Wisconsin Statutes:

1. Whoever has sexual intercourse with a person without the consent of that person is guilty of a Class G felony.
2. Whoever has sexual contact (involving ejaculation, emission of feces, or emission of urine with the purpose of sexually degrading or sexually humiliating the victim) with a person without the consent of that person is guilty of a Class G felony.

Wisconsin penalty for Third Degree Sexual Assault: 5 years (Maximum)

The main difference between second degree sexual assault and third degree sexual assault is the use of force, threat of force or violence.

FOURTH DEGREE SEXUAL ASSAULT DEFENSE

What is Fourth Degree Sexual Assault?

The Milwaukee criminal defense attorneys at Birdsall Obear & Associates have decades of experience being the top sexual assault attorneys in Milwaukee and Sheboygan. A Class A misdemeanor for fourth degree sexual assault in Milwaukee carries penalties of 9 months in jail, $10,000 in fines or both.

Fourth Degree Sexual Assault, according to Section 940.225(3m) of the Wisconsin Statutes:

1. Except as provided in sub. (3), whoever has sexual contact with a person without the consent of that person is guilty of a Class A misdemeanor.Except as provided in sub. (3), whoever has sexual contact with a person without the consent of that person is guilty of a Class A misdemeanor.

Sub (3) references third degree sexual assault, which focuses on sexual contact stemming from ejaculation, or emission of feces or urine.

Wisconsin penalty for Fourth Degree Sexual Assault: 9 months. A fourth degree sexual assault charge does not require the defendant register as a sex offender.

The state must be able to prove beyond a reasonable doubt, each of the following:

1. That the defendant had sexual contact with the victim; and
2. That the victim did not consent to the sexual contact.

POSSESSION OF CHILD PORNOGRAPHY DEFENSE

What is Possession of Child Pornography?

Possession of child pornogaphy in Wisconsin is a Class D felony, which means if you're convicted, you could face 25 years in prison. The courts are required to sentence a defendant to a least three years initial confinement for each count. Don't face possession of child pornography charges on your own. We have decades of experience as the top criminal defense attorneys in Milwaukee and will do everything possible to secure a successful criminal defense. 

The State must prove two elements for Possession of Child Pornography:

1. That you possessed a “recording” (which includes undeveloped film, photographic negatives, photographs, motion pictures, videotapes, images on a hard drive or computer printouts)
2. The recording showed a “child” engaged in “sexually explicit conduct”

In addition, the statute requires that the following elements be met:

1. That you knew you possessed the materials
2. That you knew the “character and content” of the material
3. That you “knew or reasonably should have known” that the person in the material was under 18.

The experienced sex crime defense attorneys at Birdsall Obear & Associates have many defenses to such a charge, particularly with regard to digital images. Because digital images are so easily manipulated, even experts are often unable to determine if the images are real, or have been altered. For example, what appears to be a child could be an adult whose breasts have been reduced/eliminated, hips slimmed, and facial features altered (which can all be done with commercially available software).

Another defense is that the image does not show “sexually explicit conduct.” Even in Wisconsin, “mere nudity” is not enough. There must be an unnatural focus on sexual regions and it must appeal to sexual tendencies. This is difficult to get past judges and juries who view any pictures of naked children as “explicit.”

Often, the defense of this charge hinges on the 4th Amendment to the United States Constitution: questioning whether the search and seizure of the items in question was lawful. This is because the images are often contained on computers or found as hard copies in storage spaces.

Wisconsin penalties for Possession of Child Pornography:

1. 15 months prison maximum
2. 3 years mandatory minimum (unless the court finds the public will not be harmed)

Source: 
https://docs.legis.wisconsin.gov/2005/statutes/statutes/948/12/1m

USE OF A COMPUTER TO FACILITATE A CHILD SEX CRIME

Use of a computer to facilitate a child sex crime is a Class C felony in Wisconsin (948.075), and carries a penalty of 40 years in prison and a $100,000.00 fine. Our aggressive Milwaukee sex crime defense attorneys have worked many sexual abuse cases involving use of a computer to facilitate a child sex crime. 

The state must prove four elements in this charge:

1. That you used a computer to communicate with an “individual”
2. That you “believed or had reason to believe” that the individual was under 16
3. That you used the computer with the intent to have sexual contact/intercourse with the individual
4. That you did “an act” in addition to using the computer to “carry out the intent”

Despite widespread media coverage of undercover detectives posing as 14 year old girls, and the existence of a TV show dedicated to these same “sting” operations, this offense continues to be committed. The increasing focus of law enforcement on sex crimes in general has led to a rash of these cases in Wisconsin and nationwide. A defense to this charge can be as simple as denying any intention to have sexual contact as the “intention” element can be difficult to prove. Of course, the nature of the “chat” is usually at least somewhat sexual in nature and can be used against you. The stakes have risen dramatically however, with the passage in 2005 of a 5-year mandatory minimum sentence upon conviction.

Wisconsin penalties for Use of a Computer to Facilitate a Child Sex Crime:

1. 40 years prison maximum
2. $100,000 fine

SEXUAL ASSAULT OF A CHILD DEFENSE

The State must prove two elements for Sexual Assault of a Child:

1. That you had a sexual contact, and/or intercourse with the victim
2. That the victim was under the age of 13 years (First Degree Sexual Assault), or 16 years (Second Degree Sexual Assault of a Child), at the time of the alleged sexual contact/intercourse

Sexual contact is the touching of any part of your body, or any object you control, to any of the other persons “intimate parts” (breasts, penis, anus, buttocks or vagina). The State must show that this was done with the intent to gain sexual satisfaction or to humiliate the victim. The touching may be over or under clothing.

You cannot use the defense that you did not know the victim’s age, or that you mistakenly judged the victim’s age, thinking him/her to be older than he/she really was. Also, stating that an underage victim consented to have sexual contact/intercourse with you is not a viable defense as minors are considered legally incapable to give consent.

The charge changes to Second Degree Sexual Assault of a child if the child was 14-16 years old. From ages 16-18, it is a Fourth Degree Sexual Assault (a misdemeanor). A caregiver can also be charged with a felony for the failure to prevent such assaults if the caregiver knew that the abuse was occurring.

Sexual Assault of a Child is a highly sensitive offense that is falsely charged in many instances. Bathing, or playful contact such as a pat on the behind, can be misinterpreted as sexual contact. In bitter divorce cases, one parent might make powerful assault accusations to try to discredit the other parent and gain custody and placement rights.

Making such cases even more difficult is the fact that false allegations can become true in the child’s mind with repeated interviews by parents, police, prosecutors, social workers, and treatment professionals, who tend to reaffirm even false accusations to the point where the child actually believes that some incident occurred. This troubling phenomenon has sent many innocent people to prison.

Wisconsin penalties for Sexual Assault of a Child:

• First degree:  (Class A felony) Mandatory Life Sentence
• Second degree: Up to 40 years prison (Maximum)
• Fourth degree: 9 months jail (Maximum)
• Caregiver failure to prevent assaults: 7.5 years prison (Maximum)

CHILD ENTICEMENT DEFENSE

In Wisconsin, you can be charged with child enticement without having committed a sexual act. This is a serious criminal charge and prosecutors can come at it from different angles. For example, if the defendant was giving or selling a controlled substance to a child, he/she could be charged with child enticement which is a Class D felony.

Our Milwaukee criminal lawyers have decades of experience defending child enticement cases and we know exactly how important it is to secure an aggressive criminal defense team. Contact Birdsall Law & Associates for your free consultation.

The state must prove three elements for Child Enticement:

1. That you “caused” the child to go into a car, building, room or other “secluded place”
2. That you “intended” to have “sexual contact” with the child
3. That the child was under 18 years of age

This involves the “luring” of a child into a “secluded place” with the intent to have sexual contact, cause them harm, or give them drugs. This charge is commonly brought along with one for sexual assault of a child. In such a case, the child is almost certainly going to go into some room, car or building where the conduct takes place. It is significant to note that this can be charged as an “attempt” but carries the same penalty as the completed act (actually getting the child in the place). Normally, the penalty for an attempted crime is half of the completed act. This presents an opportunity for prosecutors since many actions by a person can be interpreted as “attempting” to “cause” a child to go into a certain place, to which evil intent can be ascribed.

Wisconsin penalty for Child Enticement: 15 years prison

HUMAN TRAFFICKING DEFENSE

Human trafficking, as defined in 940.302 of the Criminal Code of Wisconsin, is committed by one who knowingly engages in trafficking for the purpose of labor or services and/or a commercial sex act. “Services” means activities performed by one individual at the request, under the supervision, or for the benefit of another person. “Commercial sex act” means sexual contact for which anything of value is given to, promised, or received, directly or indirectly, by any person.

Wisconsin statutes define the trafficking of a child (948.051):

1. Whoever knowingly recruits, entices, provides, obtains, harbors, transports, patronizes, or solicits or knowingly attempts to recruit, entice, provide, obtain, harbor, transport, patronize, or solicit any child for the purpose of commercial sex acts, as defined in s. 940.302 (1) (a), is guilty of a Class C felony
2. Whoever benefits in any manner from a violation of sub. (1) is guilty of a Class C felony if the person knows that the benefits come from an act described in sub.
3. Any person who incurs an injury or death as a result of a violation of sub. (1) or (2) may bring a civil action against the person who committed the violation. In addition to actual damages, the court may award punitive damages to the injured party, not to exceed treble the amount of actual damages incurred, and reasonable attorney fees.

The state must be able to prove the following:

1. The defendant knowingly recruited, enticed, provided, obtained, harbored, transported, patronized, solicited, or attempted to do one of those things to a child
2. The child was under 18 years old; and
3. The defendant committed one of the acts with the child for the purpose of commercial sex acts.

Our Milwaukee human trafficking defense attorneys are committed to providing a rigid human trafficking defense. Birdsall Obear & Associates has decades of experience in Milwaukee criminal defense. Contact us today for a free consultation.