Issue: Whether “restrained or confined” element of false imprisonment was established where the defendant hugged the complainant tightly while committing an act of sexual contact.
¶28 This court has previously explained that confinement is the “restraint by one person of the physical liberty of another.” Herbst v. Wuennenberg, 83 Wis. 2d 768, 774, 266 N.W.2d 391 (1978). Nothing in the statute or our case law limits confinement to situations where the defendant locks another person in some sort of structure, as Long suggests.
¶29 In this case, Bobbie D. testified, “He just kept holding on very tight and both arms were around and it was just very tight and he didn’t let go.” We conclude that, based on such testimony, a reasonable jury could have determined beyond a reasonable doubt that Long restrained Bobbie D.’s physical liberty.
Issue/Holding: Consent, for purposes of false imprisonment, is defined comparably to sexual assault:
¶31 Consent is not defined in the false imprisonment statute. Nonetheless, the term is defined in the sexual assault statute as “words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have . . . sexual contact.” Wis. Stat. § 940.225(4). In the context of sexual assault, consent requires an affirmative indication of willingness. A failure to say no or to resist does not constitute consent.¶32 In the context of false imprisonment, we also define consent as words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to be confined or restrained. See id. Long does not point to any words or actions by Bobbie D. that would indicate her freely given agreement to be confined or restrained. Under these circumstances, we conclude that even if the jury did not believe that Bobbie D. said no, a reasonable jury could have determined beyond a reasonable doubt that she did not consent to the restraint.