In Wisconsin, it is illegal for an adult (someone 18 or older) to have sex with a minor (someone younger than 18), even if the sex is consensual. Those who break the law have committed statutory rape.
Statutory rape laws are premised on the assumption that minors are incapable of giving informed consent to sexual activities. Their incapacity is written into the statute—hence the term, “statutory” rape. The age of consent can vary among states, and some states differentiate between consensual sex between minors who are close in age (for example, two teenagers of the same age), as opposed to sex between a minor and a much older adult.
Though statutory rape does not require that the prosecutor prove an assault, it is still rape. Of course, rape that does involve force or an assault is illegal in Wisconsin and prosecuted as forcible rape. Assaults of a sexual nature may also be charged under the state’s assault and battery or child enticement or molestation laws. (For information about rape between spouses, see our article on Marital Rape Laws.)
Statutory rape is prosecuted under Wisconsin’s sexual assault laws, and penalties depend on the age of the parties, and the type of sexual contact that occurred, as described below.
First degree sexual assault of a child occurs when there is sexual contact (sexual touching, even over clothing, without penetration) or intercourse (sexual penetration, however slight, with an object or body part) between a minor who is 12 or younger, and a defendant of any age. This offense is a class B felony, which incurs up to 60 years in prison. (Wis. Stat. §§ 939.50, 948.02 (2018).)
Second degree sexual assault of a child occurs when there is sexual contact between a minor who is 13 or 14 years old and a defendant of any age, or sexual contact between a minor who is 15 years old and a defendant who is 19 or older. This offense is a class C felony, which incurs a fine of up to $100,000, up to 40 years in prison, or both. (Wis. Stat. §§ 939.50, 948.02, 948.093 (2018).)
Sexual intercourse with a child 16 or older occurs when there is sexual intercourse between a minor who is 16 or 17 and a defendant who is 19 or older (unless the defendant is the minor’s spouse, described below). This offense is a class A misdemeanor, which incurs a fine of up to $10,000, up to nine months in jail, or both. (Wis. Stat. §§ 939.51, 948.09 (2018).)
Underage sexual activity involves the following, unless the defendant is the minor's spouse (described below):
Underage sexual activity is a class A misdemeanor, and a conviction can result in a fine of up to $10,000, nine months in jail, or both. (Wis. Stat. §§ 939.51, 948.093 (2018).)
State law requires, in addition to the applicable fines and prison time, that people convicted of certain sexual crimes (including statutory rape) must register as sex offenders.
As a condition of parole, the parole commission may require that a "serious child sex offender" (someone who committed specified offenses against a child under 13 years of age) undergo chemical castration. (Wis. Stat. § 304.06(1q)(b) (2018).)
Wisconsin has a marital exemption for statutory rape that allows consensual sex between a married 15, 16, or 17 year old and an adult spouse, even though their ages would prohibit it if they were not married. (Wis. Stat. §§ 948.09, 948.093 (2018).)
Minors are legally incapable of giving consent to having sex; so for example, if Jen, a 17-year-old willingly has sex with Tony, her 23-year-old boyfriend, Tony can be charged with rape, since Jen is not legally capable of giving consent in the first place.
But if Jen and Tony are married and living in Wisconsin, Tony need not fear criminal charges for having consensual sex with Jen. This is because Wisconsin has a marital exemption to the state’s statutory rape laws.
However, if Tony were to rape Jen (force her to have sex against her will), he would have no protection under the law even if the two are married.
Defendants charged with statutory rape have the usual defenses available to all criminal defendants, such as “Someone else committed this crime,” or “The alleged conduct did not occur.”
Defendants accused of statutory rape often claim that they had no reason to know that their partner was underage. They may argue that the victim herself represented that she was older than she was, and that a reasonable person would have believed her. But in Wisconsin, even a reasonable mistake as to the victim's age will not be a defense to a charge of statutory rape.
Many states have "Romeo and Juliet" exceptions to their statutory rape laws, making consensual sexual activity between teenagers close in age either not a crime or a basis for a lighter punishment. In Wisconsin, there is a Romeo and Juliet exemption for consensual sexual contact between a 15-year-year old and someone younger than 19, or consensual sexual intercourse between a minor who is 15, 16, or 17 and someone younger than 19. However, this is a limited exception because it serves to reduce the conduct from a felony to a misdemeanor offense. The conduct is still illegal (unless the pair is married), but someone protected by this exception will face the possibility of smaller fines and reduced jail time. (Wis. Stat. § 948.093 (2018).)
Sexual contact with someone younger than 15, however, is always a felony, and a conviction can result in significant prison time, fines, or both.
If you are facing a statutory rape charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. Laws can change over time, and a lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case.
A lawyer can often negotiate with the prosecutor for a lesser charge or a reduction in penalties (such as, for example, probation instead of prison time); and will know how prosecutors and judges typically handle cases like yours.
If you are a victim of sexual assault or rape, contact Rape, Abuse & Incest National Network (RAINN) for online help and local resources.
Updated September 5, 2018