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§ 944.20(1)(a), Lewd & Lascivious

State v. Andrew J. Bolin, 2009AP2425-CR, District 4, 11/24/10

court of appeals decision (1-judge, not for publication)

The crime of lewd and lascivious behavior applies to non-consensual as well as consensual acts with another.

¶9        The language at issue is unambiguous as applied to the facts in this case.  The subsection prohibits “an indecent act of sexual gratification with another with knowledge that they are in the presence of others.”  WIS. STAT. § 944.20(1)(a).  This plainly requires that a charged person engage in an “indecent act of sexual gratification” with a second person.  In addition, the charged person must have performed this act “with knowledge that they are in the presence of others.”  There is no indication that the State needs to prove that the second person consented or is otherwise a “companion” of the charged person.  See Harrell v. State, 88 Wis. 2d 546, 562 n.32, 277 N.W.2d 462 (Ct. App. 1979) (discussing a “sexual perversion” statute, and noting that “[b]ecause consent is not an element of [the section], both consensual and nonconsensual acts were included within this section”).

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