court of appeals decision; for Lesik: Anthony Cotton
Overbreadth challenge to 948.02, sexual assault of a child
Sexual assault (intercourse) of a child, § 948.02, isn’t unconstitutionally overbroad, against a theory that it criminalizes acts undertaken for “proper medical purpose.” Although the statute is silent with respect to medical conduct, potential overbreadth may be cured through judicial construction and the court therefore “conclude(s) here that ‘sexual intercourse’ as used in the sexual assault of a child statute does not include ‘bona fide medical, health care, and hygiene procedures,’” ¶13.
Analysis: The court all but says that the issue is controlled by its prior decision under an identically worded statute in State v. Neumann, 179 Wis. 2d 687, 712 n. 14, 508 N.W.2d 54 (Ct. App. 1993), ¶13.
Jury Instructions, Theory of Defense, Generally
¶14 A trial court has broad discretion in deciding to give a particular jury instruction. State v. Hemphill, 2006 WI App 185, ¶8, 296 Wis. 2d 198, 722 N.W.2d 393. However, the instruction given must “fully and fairly inform the jury of the rules of law applicable to the case and … assist the jury in making a reasonable analysis of the evidence.” State v. Coleman, 206 Wis. 2d 199, 212, 556 N.W.2d 701 (1996) (citation omitted). Further,
a criminal defendant is entitled to a jury instruction on a theory of defense if: (1) the defense relates to a legal theory of defense, as opposed to an interpretation of evidence; (2) the request is timely made; (3) the defense is not adequately covered by other instructions; and (4) the defense is supported by sufficient evidence.
Id. (citations omitted).
Jury Instructions, Theory of Defense, Sexual Assault of Child
The trial court’s amendment to the standard instructional definition of “sexual intercourse” of a child to exclude “an intrusion for a proper non-sexual non-sexual purpose, such as a medical examination or appropriate child care or treatment,” ¶5, “fully and completely conveyed Lesik’s theory of defense,” ¶17.