Civil Elder Abuse
Wis. Stat. §§ 46.90 (2017)
Wis. Stat. § 46.90 (2017)
Charitable, Curative, Reformatory and Penal Institutions and Agencies Chapter 46. Social Services
(a) "Abuse" means any of the following: 1. Physical abuse. 2. Emotional abuse. 3. Sexual abuse. 4. Treatment without consent. 5. Unreasonable confinement or restraint.
(cm) "Emotional abuse" means language or behavior that serves no legitimate purpose and is intended to be intimidating, humiliating, threatening, frightening, or otherwise harassing, and that does or reasonably could intimidate, humiliate, threaten, frighten, or otherwise harass the individual to whom the conduct or language is directed.
(ed) "Financial exploitation" means any of the following: 1. Obtaining an individual's money or property by deceiving or enticing the individual, or by forcing, compelling, or coercing the individual to give, sell at less than fair market value, or in other ways convey money or property against his or her will without his or her informed consent. 2. Theft, as prohibited in s. 943.20. 3. The substantial failure or neglect of a fiscal agent to fulfill his or her responsibilities. 4. Unauthorized use of an individual's personal identifying information or documents, as prohibited in s. 943.201. 5. Unauthorized use of an entity's identifying information or documents, as prohibited in s. 943.203. 6. Forgery, as prohibited in s. 943.38. 7. Financial transaction card crimes, as prohibited in s. 943.41.
(f) "Neglect" means the failure of a caregiver, as evidenced by an act, omission, or course of conduct, to endeavor to secure or maintain adequate care, services, or supervision for an individual, including food, clothing, shelter, or physical or mental health care, and creating significant risk or danger to the individual's physical or mental health. "Neglect" does not include a decision that is made to not seek medical care for an individual, if that decision is consistent with the individual's previously executed declaration or do-not-resuscitate order under ch. 154, a power of attorney for health care under ch. 155, or as otherwise authorized by law.
(fg) "Physical abuse" means the intentional or reckless infliction of bodily harm.
(gd) "Sexual abuse" means a violation of s. 940.225 (1), (2), (3), or (3m).
Criminal Elder Abuse
Wis. Stat. § 943.20.
(1) Acts. Whoever does any of the following may be penalized as provided in sub. (3):
(a) Intentionally takes and carries away, uses, transfers, conceals, or retains possession of movable property of another without the other's consent and with intent to deprive the owner permanently of possession of such property.
(b) By virtue of his or her office, business or employment, or as trustee or bailee, having possession or custody of money or of a negotiable security, instrument, paper or other negotiable writing of another, intentionally uses, transfers, conceals, or retains possession of such money, security, instrument, paper or writing without the owner's consent, contrary to his or her authority, and with intent to convert to his or her own use or to the use of any other person except the owner. A refusal to deliver any money or a negotiable security, instrument, paper or other negotiable writing, which is in his or her possession or custody by virtue of his or her office, business or employment, or as trustee or bailee, upon demand of the person entitled to receive it, or as required by law, is prima facie evidence of an intent to convert to his or her own use within the meaning of this paragraph.
(c) Having a legal interest in movable property, intentionally and without consent, takes such property out of the possession of a pledgee or other person having a superior right of possession, with intent thereby to deprive the pledgee or other person permanently of the possession of such property.
(d) Obtains title to property of another person by intentionally deceiving the person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made. “False representation" includes a promise made with intent not to perform it if it is a part of a false and fraudulent scheme.
(e) Intentionally fails to return any personal property which is in his or her possession or under his or her control by virtue of a written lease or written rental agreement after the lease or rental agreement has expired. This paragraph does not apply to a person who returns personal property, except a motor vehicle, which is in his or her possession or under his or her control by virtue of a written lease or written rental agreement, within 10 days after the lease or rental agreement expires.
(2) Definitions. In this section:
(ac) “Adult at risk" has the meaning given in s. 55.01 (1e).
(ad) “Elder adult at risk" has the meaning given in s. 46.90 (1) (br).
(ae) “Individual at risk" means an elder adult at risk or an adult at risk.
(ag) “Movable property" is property whose physical location can be changed, without limitation including electricity and gas, documents which represent or embody intangible rights, and things growing on, affixed to or found in land.
(am) “Patient" has the meaning given in s. 940.295 (1) (L).
(b) “Property" means all forms of tangible property, whether real or personal, without limitation including electricity, gas and documents which represent or embody a chose in action or other intangible rights.
(c) “Property of another" includes property in which the actor is a co-owner and property of a partnership of which the actor is a member, unless the actor and the victim are husband and wife.
(cm) “Resident" has the meaning given in s. 940.295 (1) (p).
(d) Except as otherwise provided in this paragraph, “value" means the market value at the time of the theft or the cost to the victim of replacing the property within a reasonable time after the theft, whichever is less. If the property stolen is a document evidencing a chose in action or other intangible right, “value" means either the market value of the chose in action or other right or the intrinsic value of the document, whichever is greater. If the property stolen is scrap metal, as defined in s. 134.405 (1) (f), or “plastic bulk merchandise container" as defined in s. 134.405 (1) (em), “value" also includes any costs that would be incurred in repairing or replacing any property damaged in the theft or removal of the scrap metal or plastic bulk merchandise container. If the thief gave consideration for, or had a legal interest in, the stolen property, the amount of such consideration or value of such interest shall be deducted from the total value of the property.
(3) Penalties. Whoever violates sub. (1):
(a) If the value of the property does not exceed $2,500, is guilty of a Class A misdemeanor.
(bf) If the value of the property exceeds $2,500 but does not exceed $5,000, is guilty of a Class I felony.
(bm) If the value of the property exceeds $5,000 but does not exceed $10,000, is guilty of a Class H felony.
(c) If the value of the property exceeds $10,000, is guilty of a Class G felony.
(d) If any of the following circumstances exists, is guilty of a Class H felony:
1. The property is a domestic animal.
3. The property is taken from a building which has been destroyed or left unoccupied because of physical disaster, riot, bombing or the proximity of battle.
4. The property is taken after physical disaster, riot, bombing or the proximity of battle has necessitated its removal from a building.
5. The property is a firearm.
6. The property is taken from a patient or resident of a facility or program under s. 940.295 (2) or from an individual at risk.
(e) If the property is taken from the person of another or from a corpse, is guilty of a Class G felony.
(4) Use of photographs as evidence. In any action or proceeding for a violation of sub. (1), a party may use duly identified and authenticated photographs of property which was the subject of the violation in lieu of producing the property.
Criminal Elder Abuse
Wis. Stat. § 939.22
In chs. 939 to 948 and 951, the following words and phrases have the designated meanings unless the context of a specific section manifestly requires a different construction or the word or phrase is defined in s. 948.01 for purposes of ch. 948:
(2) “Airgun" means a weapon which expels a missile by the expansion of compressed air or other gas.
(3) “Alcohol concentration" has the meaning given in s. 340.01 (1v).
(4) “Bodily harm" means physical pain or injury, illness, or any impairment of physical condition.
(5) “Commission warden" means a conservation warden employed by the Great Lakes Indian Fish and Wildlife Commission.
(6) “Crime" has the meaning designated in s. 939.12.
(9) “Criminal gang" means an ongoing organization, association or group of 3 or more persons, whether formal or informal, that has as one of its primary activities the commission of one or more of the criminal acts, or acts that would be criminal if the actor were an adult, specified in s. 939.22 (21) (a) to (s); that has a common name or a common identifying sign or symbol; and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity.
(9g) “Criminal gang member" means any person who participates in criminal gang activity, as defined in s. 941.38 (1) (b), with a criminal gang.
(9r) “Criminal intent" has the meaning designated in s. 939.23.
(10) “Dangerous weapon" means any firearm, whether loaded or unloaded; any device designed as a weapon and capable of producing death or great bodily harm; any ligature or other instrumentality used on the throat, neck, nose, or mouth of another person to impede, partially or completely, breathing or circulation of blood; any electric weapon, as defined in s. 941.295 (1c) (a); or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.
(11) “Drug" has the meaning specified in s. 450.01 (10).
(12) “Felony" has the meaning designated in s. 939.60.
(14) “Great bodily harm" means bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.
(15) “Hazardous inhalant" means a substance that is ingested, inhaled, or otherwise introduced into the human body in a manner that does not comply with any cautionary labeling that is required for the substance under s. 100.37 or under federal law, or in a manner that is not intended by the manufacturer of the substance, and that is intended to induce intoxication or elation, to stupefy the central nervous system, or to change the human audio, visual, or mental processes.
(16) “Human being" when used in the homicide sections means one who has been born alive.
(18) “Intentionally" has the meaning designated in s. 939.23.
(19) “Intimate parts" means the breast, buttock, anus, groin, scrotum, penis, vagina or pubic mound of a human being.
(20) “Misdemeanor" has the meaning designated in s. 939.60.
(20d) “Offense against an elderly or vulnerable person" means a violation of s. 940.285 (2) (a) that caused death, great bodily harm, or bodily harm to the victim or s. 940.295 (3) (b) that caused death, great bodily harm, or bodily harm to the victim.
(20m) “Offense related to ethical government" means a violation of s. 13.69 (6m), 19.58 (1) (b), or 946.12.
(20s) “Offense related to school safety" means a violation of s. 948.605 or 948.61 (2) (b).
(21) “Pattern of criminal gang activity" means the commission of, attempt to commit or solicitation to commit 2 or more of the following crimes, or acts that would be crimes if the actor were an adult, at least one of those acts or crimes occurs after December 25, 1993, the last of those acts or crimes occurred within 3 years after a prior act or crime, and the acts or crimes are committed, attempted or solicited on separate occasions or by 2 or more persons:
(a) Manufacture, distribution or delivery of a controlled substance or controlled substance analog, as prohibited in s. 961.41 (1).
(b) First-degree intentional homicide, as prohibited in s. 940.01.
(c) Second-degree intentional homicide, as prohibited in s. 940.05.
(d) Battery, as prohibited in s. 940.19 or 940.195.
(e) Battery, special circumstances, as prohibited in s. 940.20.
(em) Battery or threat to witness, as prohibited in s. 940.201.
(f) Mayhem, as prohibited in s. 940.21.
(g) Sexual assault, as prohibited in s. 940.225.
(h) False imprisonment, as prohibited in s. 940.30.
(i) Taking hostages, as prohibited in s. 940.305.
(j) Kidnapping, as prohibited in s. 940.31.
(k) Intimidation of witnesses, as prohibited in s. 940.42 or 940.43.
(L) Intimidation of victims, as prohibited in s. 940.44 or 940.45.
(m) Criminal damage to property, as prohibited in s. 943.01.
(mg) Criminal damage to or threat to criminally damage the property of a witness, as prohibited in s. 943.011 or 943.017 (2m).
(n) Arson of buildings or damage by explosives, as prohibited in s. 943.02.
(o) Burglary, as prohibited in s. 943.10.
(p) Theft, as prohibited in s. 943.20.
(q) Taking, driving or operating a vehicle, or removing a part or component of a vehicle, without the owner's consent, as prohibited in s. 943.23.
(r) Robbery, as prohibited in s. 943.32.
(s) Sexual assault of a child, as prohibited in s. 948.02.
(t) Repeated acts of sexual assault of the same child, as prohibited in s. 948.025.
(u) Sexual assault of a child placed in substitute care under s. 948.085.
(22) “Peace officer" means any person vested by law with a duty to maintain public order or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes. “Peace officer" includes a commission warden and a university police officer, as defined in s. 175.42 (1) (b).
(23) “Petechia" means a minute colored spot that appears on the skin, eye, eyelid, or mucous membrane of a person as a result of localized hemorrhage or rupture to a blood vessel or capillary.
(24) “Place of prostitution" means any place where a person habitually engages, in public or in private, in nonmarital acts of sexual intercourse, sexual gratification involving the sex organ of one person and the mouth or anus of another, masturbation or sexual contact for anything of value.
(28) “Property of another" means property in which a person other than the actor has a legal interest which the actor has no right to defeat or impair, even though the actor may also have a legal interest in the property.
(30) “Public officer"; “public employee". A “public officer" is any person appointed or elected according to law to discharge a public duty for the state or one of its subordinate governmental units. A “public employee" is any person, not an officer, who performs any official function on behalf of the state or one of its subordinate governmental units and who is paid from the public treasury of the state or subordinate governmental unit.
(32) “Reasonably believes" means that the actor believes that a certain fact situation exists and such belief under the circumstances is reasonable even though erroneous.
(33) “Restricted controlled substance" means any of the following:
(a) A controlled substance included in schedule I under ch. 961 other than a tetrahydrocannabinol.
(b) A controlled substance analog, as defined in s. 961.01 (4m), of a controlled substance described in par. (a).
(c) Cocaine or any of its metabolites.
(34) “Sexual contact" means any of the following if done for the purpose of sexual humiliation, degradation, arousal, or gratification:
(a) The intentional touching by the defendant or, upon the defendant's instruction, by a third person of the clothed or unclothed intimate parts of another person with any part of the body, clothed or unclothed, or with any object or device.
(b) The intentional touching by the defendant or, upon the defendant's instruction, by a third person of any part of the body, clothed or unclothed, of another person with the intimate parts of the body, clothed or unclothed.
(c) The intentional penile ejaculation of ejaculate or the intentional emission of urine or feces by the defendant or, upon the defendant's instruction, by a third person upon any part of the body, clothed or unclothed, of another person.
(d) Intentionally causing another person to ejaculate or emit urine or feces on any part of the actor's body, whether clothed or unclothed.
(36) “Sexual intercourse" requires only vulvar penetration and does not require emission.
(37) “State-certified commission warden" means a commission warden who meets the requirements of s. 165.85 (4) (a) 1., 2., and 7. and has agreed to accept the duties of a law enforcement officer under the laws of this state.
(38) “Substantial bodily harm" means bodily injury that causes a laceration that requires stitches, staples, or a tissue adhesive; any fracture of a bone; a broken nose; a burn; a petechia; a temporary loss of consciousness, sight or hearing; a concussion; or a loss or fracture of a tooth.
(40) “Transfer" means any transaction involving a change in possession of any property, or a change of right, title, or interest to or in any property.
(42) “Under the influence of an intoxicant" means that the actor's ability to operate a vehicle or handle a firearm or airgun is materially impaired because of his or her consumption of an alcohol beverage, hazardous inhalant, of a controlled substance or controlled substance analog under ch. 961, of any combination of an alcohol beverage, hazardous inhalant, controlled substance and controlled substance analog, or of any other drug, or of an alcohol beverage and any other drug.
(44) “Vehicle" means any self-propelled device for moving persons or property or pulling implements from one place to another, whether such device is operated on land, rails, water, or in the air. “Vehicle” does not include a personal delivery device, as defined in s. 340.01 (43fg).
(46) “With intent" has the meaning designated in s. 939.23.
(48) “Without consent" means no consent in fact or that consent is given for one of the following reasons:
(a) Because the actor put the victim in fear by the use or threat of imminent use of physical violence on the victim, or on a person in the victim's presence, or on a member of the victim's immediate family; or
(b) Because the actor purports to be acting under legal authority; or
(c) Because the victim does not understand the nature of the thing to which the victim consents, either by reason of ignorance or mistake of fact or of law other than criminal law or by reason of youth or defective mental condition, whether permanent or temporary.
History: 1971 c. 219; 1973 c. 336; 1977 c. 173; 1979 c. 89, 221; 1981 c. 79 s. 17; 1981 c. 89, 348; 1983 a. 17, 459; 1985 a. 146 s. 8; 1987 a. 332, 399; 1993 a. 98, 213, 227, 441, 486; 1995 a. 69, 436, 448; 1997 a. 143, 295; 2001 a. 109; 2003 a. 97, 223; 2005 a. 273, 277, 435; 2007 a. 27, 97, 127; 2009 a. 28, 276; 2011 a. 35; 2013 a. 83, 214, 265; 2017 a. 13.
It was for the jury to determine whether a soft drink bottle, with which the victim was hit on the head, constituted a dangerous weapon. Actual injury to the victim is not required. Langston v. State, 61 Wis. 2d 288, 212 N.W.2d 113 (1973).
An unloaded pellet gun qualified as a “dangerous weapon" under sub. (10) in that it was designed as a weapon and, when used as a bludgeon, was capable of producing great bodily harm. State v. Antes, 74 Wis. 2d 317, 246 N.W.2d 671 (1976).
A jury could reasonably find that numerous cuts and stab wounds constituted “ serious bodily injury" under sub. (14) even though there was no probability of death, no permanent injury, and no damage to any member or organ. The phrase, “or other serious bodily injury," was designed as an intentional broadening of the scope of the statute to include bodily injuries that were serious, although not of the same type or category as those recited in the statute. La Barge v. State, 74 Wis. 2d 327, 246 N.W.2d 794 (1976).
A jury must find that acts of prostitution were repeated or were continued in order to find that premises are “a place of prostitution" under sub. (24). Johnson v. State, 76 Wis. 2d 672, 251 N.W.2d 834 (1977).
Sub. (14), either on its face or as construed in La Barge, is not unconstitutionally vague. Cheatham v. State, 85 Wis. 2d 112, 270 N.W.2d 194 (1978).
Definitions of “under the influence" in this section and in s. 346.63 (1) (a) are equivalent. State v. Waalen, 130 Wis. 2d 18, 386 N.W.2d 47 (1986).
To determine whether an infant was “born alive" under sub. (16), the s. 146.71 standard to determine death is applied, as, “if one is not dead he is indeed alive." State v. Cornelius, 152 Wis. 2d 272, 448 N.W.2d 434 (Ct. App. 1989).
A dog may be a dangerous weapon under sub. (10). State v. Sinks, 168 Wis. 2d 245, 483 N.W.2d 286 (Ct. App. 1992).
Portions of the defendant's anatomy are not dangerous weapons under sub. (10). State v. Frey, 178 Wis. 2d 729, 505 N.W.2d 786 (Ct. App. 1993).
An automobile may constitute a dangerous weapon under sub. (10). State v. Bidwell, 200 Wis. 2d 200, 546 N.W.2d 507 (Ct. App. 1996), 95-0791.
A firearm with a trigger lock is within the definition of a dangerous weapon under sub. (10). State v. Norris, 214 Wis. 2d 25, 571 N.W.2d 857 (Ct. App. 1997), 96-2158.
When a mother agreed to the father taking a child on a camping trip, but the father actually intended to permanently take the child and did abscond to Canada with the child, the child was taken based on the mother's “mistake of fact," which under s. 939.22 (48) rendered the taking of the child to be “without consent" and in violation of s. 948.31. State v. Inglin, 224 Wis. 2d 764, 592 N.W.2d 666 (Ct. App. 1999), 97-3091.
The definitions in subs. (9) and (9g) are sufficiently specific that when incorporated into a probation condition they provide fair and adequate notice as to the expected course of conduct and provide an adequate standard of enforcement. State v. Lo, 228 Wis. 2d 531, 599 N.W.2d 659 (Ct. App. 1999), 98-2490.
Sub. (19) includes female and male breasts as each is “the breast of a human being." The touching of a boy's breast constitutes “sexual contact" within the meaning of s. 948.02 (2). State v. Forster, 2003 WI App 29, 260 Wis. 2d 149, 659 N.W.2d 144, 02-0602.
“Materially impaired" as used in sub. (42) does not have a technical or peculiar meaning in the law beyond the time-tested explanations in standard jury instructions. Therefore, the circuit court's response to the jury question to give all words not otherwise defined their ordinary meaning was not error, comported with s. 990.01, and did not constitute an erroneous exercise of discretion. State v. Hubbard, 2008 WI 92, 313 Wis. 2d 1, 752 N.W.2d 839, 06-2753.
Shooting a person in the thigh at a range of 16 to 18 feet with a shotgun is practically certain to cause at least a protracted loss or impairment of the function of the victim's leg, and is injury constituting “great bodily harm" within the meaning of sub. (14). The fact that the defendant's conduct was intended to neutralize the threat posed by the victim did not negate the fact that, by firing the shotgun at the victim's thigh, the defendant intended to cause great bodily harm by committing an act that he was aware was practically certain to result in great bodily harm to the victim. State v. Miller, 2009 WI App 111, 320 Wis. 2d 724, 772 N.W.2d 188, 07-1052.
939.23 Criminal intent.
(1) When criminal intent is an element of a crime in chs. 939 to 951, such intent is indicated by the term “intentionally", the phrase “with intent to", the phrase “with intent that", or some form of the verbs “know" or “believe".
(2) “Know" requires only that the actor believes that the specified fact exists.
(3) “Intentionally" means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result. In addition, except as provided in sub. (6), the actor must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word “intentionally".
(4) “With intent to" or “with intent that" means that the actor either has a purpose to do the thing or cause the result specified, or is aware that his or her conduct is practically certain to cause that result.
(5) Criminal intent does not require proof of knowledge of the existence or constitutionality of the section under which the actor is prosecuted or the scope or meaning of the terms used in that section.
(6) Criminal intent does not require proof of knowledge of the age of a minor even though age is a material element in the crime in question.
History: 1979 c. 89; 1987 a. 332 s. 64; 1987 a. 399; 1993 a. 486.
Judicial Council Note, 1988: Subs. (3) and (4) are conformed to the formulation of s. 2.02 (2) (b) ii of the model penal code. [Bill 191-S]
A person need not foresee or intend the specific consequences of an act in order to possess the requisite criminal intent and is presumed to intend the natural and probable consequences of the act. State v. Gould, 56 Wis. 2d 808, 202 N.W.2d 903 (1973).
Instructions on intent to kill created a permissible rebuttable presumption that shifted the burden of production to the defendant, but not the burden of persuasion. Muller v. State, 94 Wis. 2d 450, 289 N.W.2d 570 (1980).
The court properly refused to instruct the jury on a “mistake of fact" defense when the accused claimed that the victim moved into the path of a gunshot intended only to frighten the victim. State v. Bougneit, 97 Wis. 2d 687, 294 N.W.2d 675 (Ct. App. 1980).
The constitutionality of sub. (3) is upheld. State v. Smith, 170 Wis. 2d 701, 490 N.W.2d 40 (Ct. App. 1992).
The trial court's wholesale exclusion of the defendant's proffered expert and lay testimony regarding posttraumatic stress disorder from the guilt phase of a murder trial without valid justification violated the defendant's right to present a defense and to testify on her own behalf. Morgan v. Krenke, 72 F. Supp. 2d 980 (1999).