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First Amendment – Overbreadth: Sexual Assault of Child, § 948.02, Not Unconstitutionally Overbroad re: “Proper Medical Purpose”

State v. Christopher J. Lesik, 2010 WI App 12, PFR filed
For Lesik: Anthony Cotton

Issue/Holding: 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.

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.


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