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§ 948.02(2), 2nd-Degree Sexual Assault (by Contact) — Elements – “Intentional” (Vs. “Knowing”) Contact

State v. John A. Jipson, 2003 WI App 222
For Jipson: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: The specifically prohibited “purpose” of sexual contact (i.e., sexual degradation, humiliation, arousal, or gratification) is not listed in § 948.02(2), but is nonetheless defined in § 948.01(5) as an element. ¶9 and id., n. 4, following State v. Bollig, 2000 WI 6, ¶50, 232 Wis. 2d 561, 605 N.W.2d 199, and State v. Nichelson, 220 Wis. 2d 214, 220, 225, 582 N.W.2d 460 (Ct. App. 1998). Thus, the state must prove more than that the defendant “knowingly” touched someone (or event that the touching was purposeful in a general sense), ¶13; instead, the state must prove that the touching was for the specifically prohibited purpose of sexual degradation, humiliation, arousal or gratification:

¶14. This is not a distinction without a difference. Wisconsin Stat. § 939.23(2) defines “know” as “requir[ing] only that the actor believes that the specified fact exists.” Section 939.23(3) defines “intentionally” as

Mean[ing] that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result. In addition … the actor must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word “intentionally.”

Whether one believes something exists or will happen is a different level of criminal intent as compared to whether it is one’s conscious objective, that is, one’s purpose, to do something. As a result, “knowing” contact and “intentional” contact are two very different things….

2nd-degree sexual assault also may be committed by intercourse; although that offense does not explicitly require proof of intent, the court of appeals has read intent into it, on the theory that intercourse is impossible without contact. State v. Brienzo, 2003 WI App 203, ¶¶18-21. Jipson was charged with contact, despite the fact that the allegation was intercourse, ¶15, but under Brienzo that shouldn’t make a difference as to the required proof of prohibited intent, nor does the court indeed suggest that the allegation of intercourse matters.

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