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§ 948.02(2), Attempted Sexual Assault (Intercourse) – Crime Known to Law Despite Lack of “Formal” Intent Element

State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting

Issue: Whether attempted sexual assault of a child (by intercourse), § 948.02(2), is a crime known to law, in that the offense lacks an intent element and any crime of intent, § 939.32, requires specific intent for the completed act.

Holding: Sexual contact explicitly requires “intentional touching,” and therefore supports a charge of attempted assault by contact, State v. Grimm, 2002 WI App 242, 258 Wis. 2d 166, 653 N.W.2d 284. But “sexual intercourse,” unlike “contact,” is not defined with “a formal element of intent,” § 948.01(6). And although attempt requires that the completed offense contain the element of intent, State v. Briggs, 218 Wis. 2d 61, 66, 579 N.W.2d 783 (Ct. App. 1998), that requirement is satisfied for attempted assault by intercourse because intercourse necessarily involves contact. ¶¶18-21.

A knotty semantical problem, to be sure, but there’s more to it than the court suggests. It’s clear that you can’t be charged with attempt when the completed crime lacks the element of specific intent. And it’s equally clear that assault by intercourse does not require intent. Indeed, the court of appeals previously has gone so far as to say that the legislature “intentionally omitted any intent requirement” from the offense of assault by intercourse. State v. Neumann, 179 Wis.2d 687, 709, 508 N.W.2d 54 (Ct. App. 1993). But that was different: Neumann wanted to raise an intoxication defense, and the court was certain that the absence of an intent element was meant to prevent any worm-holes through which the likes of Neumann could slither to freedom: “the legislature most likely concluded that a defendant’s intent should not be an element of the crime because to allow for a defendant to claim the defense of intoxication, and other defenses based upon lack of intent, would be contrary to the goals of enforcement and protection of bodily security.” 179 Wis.2d at 710. But this is a different day, and with Brienzo seeking refuge in strict liability the court deems the elemental structure a bit more permeable after all; now, absence of intent is not deemed a matter of considered legislative policy but, rather, a matter merely of form and not substance. This is not to gainsay the court’s logic: there is something to be said for the idea that you can’t have intercourse without intentional touching. But there is a history, too, one which the court’s logic simply ignores – assault by intercourse is distinct from contact: the latter, specific intent; the former, strict liability.

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