The Age of Consent in Wisconsin
Under Wisconsin Statute § 948.02(1), the age of consent in Wisconsin is 18. This means that all sexual relationships between those aged 17 or older are considered legal and will not be prosecuted under the law. For example, if a 17-year-old begins a sexual relationship with a 20-year-old, this will not be considered statutory rape as the girl (or boy) is above the required legal age of consent.
However, if they were below 17 years old , the person who is charged will face up to 25 years in prison following conviction. If the offender is a minor, they will be held accountable on juvenile court cases, whereas if the offender is an adult, they could face years in prison for the criminal offense, defined as a Class H felony.
For clarification, the age of consent does not mean that 17-year-old individuals in Wisconsin are adults and immediately able to engage in sexual activity. The age of majority, which is in place for people living in Wisconsin, is 18 years.
A History of Changes in Wisconsin’s Law
The history of Wisconsin’s consent laws includes significant changes in the age of consent for sexual relations. Wisconsin originally adopted the English common law rule, under which the age of consent was set at 12 years of age. Over the years, the state’s legislature pushed back the age of consent so that by the time sex offender registry laws were passed, the age of consent in Wisconsin was 18 years.
Wisconsin’s laws gradually increased the age of consent until it reached the current, age-18 threshold. The legislature helped ensure that offenders would face penalties under the law by including an affirmative defense that no criminal activity under the state’s consent laws occurred if the person charged could demonstrate the victim was older than the minimum consent age. In essence, the defendant had the burden of proof to demonstrate his or her innocence, contrary to the established presumption of innocence accorded to defendants in other types of criminal cases.
In the 1980s, the legislature eliminated the affirmative defense option and instituted strict liability for those found guilty of violating the state’s age of consent laws. The change meant that a defendant could not use the victim’s true age as an element of the offense that would allow the defendant to avoid culpability. The change remains in effect today.
Continued legislative action on consent laws over the past 30 years expanded the range of sexual relationships caught up in the new age of consent. For instance, a change eliminated the statute of limitations for prosecuting third-degree sexual assault of someone who is 18 or older in 2016. This change applied to any sexual assault that took place when the victim was at least 18 years old, regardless of the circumstances that made the defendant ineligible, as the victim’s teacher or other authority figure, to have sex with the victim. It also eliminated a five-year statute of limitations that could have provided a defendant a pass where the crime took place beyond the five years prior to the date of prosecution.
The legislative history of consent laws in Wisconsin also features a series of changes that have increased penalties for offenders. Since sex offender registry laws went into effect in 2007, legislators have passed three laws increasing penalties for those who engage in prohibited acts after that date. Changes throughout the past decade have gradually increased the severity of penalties for offenders who commit second- or subsequent offenses. Defendants now face prison time of up to 25 years for a second offense, with a maximum possible penalty of $100,000. The penalty for subsequent offenses continues to rise, ending in a maximum penalty of $500,000 for a repeat offender.
When are Exceptions Granted?
In addition to situations affecting consent based upon mental or physical incapacitation, there are circumstances and relationships that affect the general statutory age of consent. These include close-in-age exemptions, social and dating relationship exemptions, and family relationships.
In Wis. Stat. §948.09, there is a close-in-age exemption that states a person age 16 or older may consent to sexual contact or sexual intercourse, with their partner being at least 14 years old. Further, the age of consent is 18 for sexual intercourse with a person under 18 years old (who can legally consent) if the person providing the sexual conduct is a person of authority, meaning that the accused is someone who exercises supervision over the other. These relationships frequently involve teachers or coaches.
Two types of social or dating relationship exemptions exist under Wis. Stat. §940.225(2)(d) (Sexual assault in the second degree) and §948.10 (Sexual Assault of a Child; exceptions). These two subsections allow for exceptions for persons who are involved in a current or recently terminated consensual dating relationship.
There is also an exemption provided under Wis. Stat. §948.01(6): A person is not considered to be incapable of consent, if there is a spousal relationship with the accused. In other words, a husband having sex with a wife who just had a reasonable amount to drink is not a sexual assault crime, because she is deemed capable of consent.
Enforcing Penalties
The legal age of consent in Wisconsin is 18, and as with most areas of the law, failing to abide by this rule can carry some serious legal consequences. Depending on the particular circumstances of the case, an individual who is accused of statutory sexual assault can expect to be charged with first-, second- or third-degree sexual assault. The key distinction is whether the individual is over or under the age of 18. Individuals who are 18 years old or older will face more severe penalties than individuals under the age of 18.
In most cases, those under 18 years old charged with violation of the statute will at least face obligation to complete a year of supervision with the Department of Corrections, and face other restrictions on their actions. For example, this could include restrictions on their ability to travel outside the state or country without informing their supervisor or participating in a certain type of treatment.
Individuals charged with statutory sexual assault who are over 18 years old will face charges of first- , second- or third-degree sexual assault, depending on the particular circumstances of the case.
First-degree sexual assault is a Class B felony, which carries a maximum penalty of 60 years in prison and a $100,000 fine. Second-degree sexual assault is a Class C felony, which imposes a maximum penalty of 40 years in prison and a $100,000 fine. Third-degree sexual assault is a Class G felony, subject to a maximum penalty of 10 years in prison and a $25,000 fine.
It is worth noting that sex offender registration is required in addition to serving a prison term. Registry is mandatory for a first-degree offense, but may also be required for second-degree offenses. A person who is required to be on the sex offender registry must verify their address every 90 days for the rest of their lives. If a person relocates to a different state, they are still subject to the registration requirement.
The Role of Parents & Guardians
As the age of consent in Wisconsin is 18 years, it is important to consider the role of parents and guardians. Under certain circumstances, it may be possible for a parent or guardian to play a direct role in the age of consent issue.
Parents and Guardians
Securing the consent of a minor under the age of 18 would remove liability from the other individual. Once it is proven that such consent was provided, the court will dismiss any charges as they apply to the individual who is over the age of 18. Of course, such consent cannot be obtained forcefully and cannot be agreed to by a guardian (i.e. a parent) under undue influence or circumstance.
If consent to a sexual relation is obtained out of state, such consent would not necessarily provide any protections even if the age of sexual consent of the other state is lower than 18. In addition, the age of consent in Wisconsin is irrevocable, meaning that even if consent was agreed to at a younger age, it cannot be changed after the fact. However, there are a few points to remember regarding a parent or guardian’s role in the matter.
Parents’ Role
Parental consent can be direct or indirect. A parent could directly consent to their child engaging in sexual relations with another. Such consent is merely looked upon as evidence by the court. In addition, parental consent can be considered indirect if such consent is provided via inaction. Under this interpretation, an individual who does not prevent their child from engaging in sexual activity with another individual is indirectly providing their consent. For example, if a parent finds out that their teenage daughter is dating a boy who is two years older but fails to prevent them from seeing one another, such inaction could be construed as permission and, under the eyes of the law, consent to the action.
Guardians’ Role
A guardian could provide their consent directly to their ward, but often the definition of "guardian" for the court is a financial or medical guardian. As a result, such a guardian’s consent could only indirectly influence the likelihood of a delinquent charge being made.
Parent and Guardian
Generally, both parents must consent to the matter regardless of whether one parent is a guardian. If only one parent has legal rights to consent over their child’s decision, there is a speculation that the other parent is not active in the life of their child. Because consent of both parental figures is needed, any sort of contact placed into question must involve someone who may be charged under the statute.
How Wisconsin Compares to Other States
In comparison with many other states, Wisconsin’s age of consent laws are right in the middle. As noted above, their age of consent is 18. There are 12 states (+ DC) which have a higher consent age of 18, 11 states with a consent age of 17, and 12 states with a higher consent age of 16.
Specifically:
– Wisconsin has a higher consent age than the following states: Arkansas, Connecticut, Florida, Indiana, Maryland, New York, Ohio, Pennsylvania, Tennessee, Vermont, Virginia, and West Virginia .
– Wisconsin has a lower consent age than the following states: Alabama, Georgia, Iowa, Kansas, Minnesota, North Carolina, Oklahoma, South Dakota, Washington, and West Virginia.
Overall, the age of consent is fairly similar when taking into account the minimum age in different states across the United States. Some states are stricter than others, making it a good idea to understand where these lines are drawn when considering a relationship with someone who is a minor.