Wis JI-Criminal 1212A

Statutory Definition of the Crime

Second-degree sexual assault, as defined in § 940.225(2)(cm) of the Criminal Code of

Wisconsin, is committed by one who has sexual intercourse with a person who is under the

influence of an intoxicant to a degree which renders that person incapable of giving consent

if the defendant has actual knowledge that the person is incapable of giving consent and

has the purpose to have sexual intercourse with the person while the person is incapable of

giving consent.

State’s Burden of Proof

Before you may find the defendant guilty of this offense, the State must prove by

evidence which satisfies you beyond a reasonable doubt that the following five elements

were present.

Elements of the Crime That the State Must Prove

1. The defendant had sexual intercourse with (name of victim).

“Sexual intercourse” is defined as (insert the applicable definition set forth in

Wis JI–Criminal 1200B).1

2. (Name of victim) was under the influence of an intoxicant at the time of the sexual

intercourse.

[_______________ is an intoxicant.]2

[“Intoxicant” means any alcohol beverage, hazardous inhalant, controlled

substance, controlled substance analog or other drug, any combination thereof.]3

3. (Name of victim) was under the influence of an intoxicant to a degree which

rendered (him) (her) incapable of giving consent.

4. The defendant had actual knowledge4 that (name of victim) was incapable of

giving consent.

5. The defendant had the purpose to have sexual intercourse while (name of victim)

was incapable of giving consent.5

Meaning of Consent

“Consent” means words or actions by a person who is competent to give informed

consent indicating a freely given agreement to have sexual intercourse.6

Deciding About Purpose and Actual Knowledge

You cannot look into a person’s mind to find purpose and actual knowledge. Purpose

and actual knowledge must be found, if found at all, from the defendant’s acts, words, and

statements, if any, and from all the facts and circumstances in this case bearing upon

purpose and actual knowledge.

Jury’s Decision

If you are satisfied beyond a reasonable doubt that all five elements of second-degree

sexual assault have been proved, you should find the defendant guilty.

If you are not so satisfied, you must find the defendant not guilty.