Jama was convicted of both second degree sexual assault of a person too intoxicated to give consent, § 940.225(2)(cm), and third degree sexual assault (sexual intercourse or contact without consent), § 940.225(3), for the same act. The court of appeals rejects Jama’s claim that he can’t be convicted of both counts.
After Jama was convicted of both counts for sexually assaulting H.H., the circuit court set aside the third degree sexual assault conviction on the ground that the two sexual assault counts were “mutually exclusive.” The circuit court concluded the two counts involved two distinct and mutually inconsistent mental states: For purposes of the third degree charge the victim was competent to consent, but did not do so; while for purposes of the second degree charge the victim was not competent to consent. (¶10). Not so, says the court of appeals:
¶11 …. Unlike Jama and the circuit court, we see no logical inconsistency in guilty verdicts on both a Wis. Stat. § 940.225(2)(cm) offense and a § 940.225(3) offense. On the contrary, such verdicts are consistent because, by the statute’s plain language, sexual intercourse with a victim who is so intoxicated as to be “incapable of giving consent” under § 940.225(2)(cm) will always be sexual intercourse “without the consent” of the victim under § 940.225(3). As the State aptly puts it, “there is no consent when a victim is unable to consent.”
¶12 Jama’s position, which the circuit court apparently adopted, seems to rest on the view that the term “without … consent” in Wis. Stat. § 940.225(3) and the definition of “consent” in § 940.225(4) work together to require proof that the alleged victim, in the words of the definition, is “competent to give informed consent.” Stated differently, proof of absence of consent under § 940.225(3) necessarily requires proof that the victim was capable of giving consent. This reasoning is flawed.
¶13 It is true that only a person competent to give consent can give the consent needed within the meaning of the sexual assault statute. But nothing in the definition of “consent” in the sexual assault context requires proof of such competence.
¶14 The reason the sexual assault statute defines consent is so that a fact finder can determine whether consent is absent. If there is no consent from “a person who is competent to give informed consent,” then there is no consent within the sexual assault context. To state the obvious, “consent” is absent when an alleged sexual assault victim does not give any indication of consent, regardless whether the victim is competent or incompetent to consent. Proof that a competent victim did not consent is just one way that the State may prove that sexual activity occurred without consent….
Nor are the two convictions for the same act multiplicitous. Multiplicity is determined by looking at whether the offenses are different in law (based on the “elements-only” test) and fact; if they are, the legislature is presumed to have intended that both offenses be punished cumulatively. (¶¶21-22). Jama claims the two sexual assault charges here are identical in law because it is “utterly impossible” to commit one offense without also committing the other offense, State v. Carrington, 134 Wis. 2d 260, 265, 397 N.W.2d 484 (1986); State v. Selmon, 175 Wis. 2d 155, 162, 498 N.W.2d 876 (Ct. App. 1993), but the court disagrees:
¶25 The flaw in Jama’s multiplicity argument is that he discusses only the consent-related elements of the two crimes. Jama ignores the requisite acts. That is, Jama fails to compare the “sexual contact or sexual intercourse” element of the Wis. Stat. § 940.225(2)(cm) offense with the “sexual intercourse” or specified types of aggravated “sexual contact” element of the § 940.225(3) offense [which is limited to contact defined in § 940.225(5)(b)2. or 3.]. Comparing these elements, it is readily apparent that a person can violate § 940.225(2)(cm) without also violating § 940.225(3). For example, a person can violate § 940.225(2)(cm) by touching a woman’s breasts with the requisite knowledge and purpose, but that act would not suffice as a predicate act under § 940.225(3).
In two fact-dependent rulings, the court also rejects Jama’s argument that the evidence was insufficient to convict him of third degree sexual assault (¶¶2-4, 17-19) but agrees with him (and the circuit court) that there was insufficient evidence to convict him of two burglary counts, one for entering with intent to steal, the other for entering with intent to commit sexual assault (¶¶2-4, 30-35).