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3rd Degree Sexual Assault in Wisconsin

In Wisconsin, 3rd degree sexual assault is a Class G felony. To be convicted, the court must prove that the defendant had sexual intercourse or a specific form of sexual contact and that there was no consent for these actions. A defense attorney will challenge the ability to prove these elements and will often make arguments centering the evidence used.

How to Defend Against Sexual Assault Charges

It is important to find an attorney that will not only scrutinize whether the state has sufficient evidence to prove a 3rd degree sexual assault. Your attorney must also examine related defenses that can shift the balance of the case even in cases where the state’s case is strong on some or all the elements.

Many defenses will involve challenging whether the state can prove the elements of 3rd degree sexual assault beyond a reasonable doubt. This can include arguing that they can’t prove a lack of consent by the victim or that the intercourse/specific contact took place.

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What Is 3rd Degree Sexual Assault?

Wisconsin state statute 940.225 (3) defines third degree sexual assault. The key requirements in a 3rd degree sexual assault charge are:

  1. The defendant had either sexual intercourse with the victim or a specific type of sexual contact.
  2. That the victim did not consent to the sexual intercourse or specific sexual contact described above.

The state must prove each of these elements beyond a reasonable doubt to secure a conviction at trial. Evidence of intent can be determined from someone’s words, actions, or statements. For this reason, the exact way the court defines these terms is important.

  • Sexual intercourse: Any intrusion, however slight, of any part of a person’s body into the genital or anal opening as well as cunnilingus and fellatio.
  • Sexual contact: For 3rd degree cases this means intentional ejaculation of ejaculate or emission of urine or feces by the defendant onto any part of the victim’s body or intentionally causing the victim to ejaculate or emit urine or feces onto the defendant’s body, for the purpose of either sexually degrading/humiliating the victim or for sexually arousing/gratifying the defendant.
  • Did not consent: The victim did not freely agree to have sexual intercourse sexual contact with the defendant. Evidence that goes to consent or the lack thereof can be determined from the victim’s words or actions along with all the other facts and circumstances. It does not require that the victim made actions of physical resistance.

Difference Between 1st, 2nd, and 3rd Degree Sexual Assault

The differences between the degrees of sexual assault largely are based on the circumstances of the assault which can include the age of the victim and the amount of force/violence/bodily harm inflicted as a result.

1st and 2nd Degree sexual assaults typically require force, bodily harm, a weapon, or some kind of power dynamic. That power dynamic could be the victim is unconscious or the victim is assaulted by a police or correctional officer. 3rd degree sexual assaults, while not legally required to have these forces or other aggravating elements, are often lumped in with them by association in terms of categorizing the behavior.

Penalties for 3rd Degree Sexual Assault

3rd degree sexual assault is a Class G felony in Wisconsin, punishable by up to 10 years imprisonment and a $25,000 fine. Additionally, a conviction requires registration as a sex offender and complying with those requirements for at least 15 years following the completion of the sentence.

Factors Affecting 3rd Degree Sexual Assault Penalties

Given the extensive penalty range of 3rd degree sexual assaults, a number of factors are relevant in a determination of how severe the penalty could be. Such factors include but are not limited to:

  • The age difference between victim and offender
  • The offender’s prior criminal history
  • The presence or absence of an underlying mental health or substance abuse issue that contributed to the assault
  • The relationship (if any) that existed between victim and offender
  • The strength of the evidence regarding 3rd degree sexual assault factors

Each of these factors can impact how close to the maximum punishment the district attorney recommends to the court.

Can a 3rd Degree Assault Be Reduced to a 4th Degree?

Depending in part on the factors noted above, there are occasions where a case originally charged as a 3rd degree sexual assault can resolve with a conviction of 4th degree sexual assault instead. A 4th degree sexual assault is a misdemeanor, so the penalties are significantly less sever than for a 3rd degree.

Whether it can be reduced is highly dependent on the facts and evidence. Before there can be an estimate of the chances for a reduction, a criminal defense attorney would need to do a full evaluation of related evidence and discussions with the prosecutor would be needed.

Statute of Limitations in Wisconsin

Under Wisconsin statute 939.74(2)(ar), the statute of limitations for a 3rd degree sexual assault case is 10 years from the date the alleged violation was committed. Given such a wide time period, allegations and charges that surface long after the incident can have some difficulty in defending due to issues tracking down important witnesses or evidence supporting an alibi or other defense. Additionally, judges and juries can give a victim some slack if there are inconsistencies in details or other issues due to the elapsed time that they may not extend to victims of other types of offenses.

The Impact of a 3rd Degree Sexual Assault Conviction on Your Future

All felony convictions come with prohibitions from voting and prohibitions from possessing a firearm. 3rd degree sexual assault convictions come with reduced employment prospects and carry added stigma in terms of reintegrating into society upon completion of a sentence. Often the most notable impact comes from the requirements to register as a sex offender and complying with those registry obligations.

Registering as a Sex Offender

3rd degree sexual assault convictions requires registering as a sex offender under Wis. Stat. 301.45, there is an obligation for the offender to provide or update information for their inclusion on the sex offender registry. This information includes:

  • Name
  • The statute violated
  • Identifying information (date of birth, height, weight, race, hair/eye color)
  • Any addresses the offender may be residing
  • Name of the supervising agency and their contact info
  • Names of every email/URL/username/profile the offender creates or uses
  • Name and address of employer and/or school
  • Any sex offenses dismissed as part of a plea agreement
  • The date of placement on probation, release from confinement, and entering the state

Failure to comply with the requirements of the sex offender registry is also a criminal offense, with penalties up to 6 years imprisonment and a $10,000 fine.