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§ 948.02(2) – Elements, in Relation to Defense of Rape By the Child

State v. Monika S. Lackershire, 2007 WI 74, reversing 2005 WI App 265
For Lackershire: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding:

¶29      Lackershire’s second argument centers on the somewhat unique posture of this case. A violation of Wis. Stat. § 948.02(2) is generally viewed as a strict liability offense. Unlike other sexual assault offenses, where consent of the victim may be a central issue, the consent of the child in a Wis. Stat. § 948.02(2) violation is not relevant. Yet, here, where we have an assertion that it was the defendant who did not consent to the intercourse, that it was she who was raped by the child, then the issue of her consent becomes paramount. If the defendant was raped, the act of having sexual intercourse with a child does not constitute a crime. Wis. Stat. § 948.01(6).

¶44      We find support for this view in the court of appeals decision in State v. Olson, 2000 WI App 158, 238 Wis. 2d 74, 616 N.W.2d 144. In that case, the defendant, who was 18 years old, was charged with second-degree sexual assault of a child, but claimed that she had in fact been the victim of rape. The circuit court denied the defendant’s request for a jury instruction that the state had to prove that the intercourse was the result of the defendant’s intentional acts or upon her “affirmative instructions.” The defendant was convicted of the charge. > Id., ¶1. The court of appeals reversed the judgment. Noting that there was evidence that the defendant had reported the incident as a sexual assault upon her, it determined that “the act or acts which bring about the sexual intercourse must be, . . . in the words of [Wis. Stat. § 948.01(6)], undertaken ‘upon the defendant’s instruction.'” Id., ¶13. It therefore determined that under those facts, the defendant was entitled to a jury instruction to that effect. Id.

 

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