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Prosecutor, law professors weigh in on proposed change to sex-assault statute

By: Erika Strebel, [email protected]//October 6, 2017//

Prosecutor, law professors weigh in on proposed change to sex-assault statute

By: Erika Strebel, [email protected]//October 6, 2017//

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Under the state’s criminal statutes concerning the sexual assault of children, sex with someone under 16 years old amounts to second-degree sexual assault.

Those who are convicted of it can end up with a $100,000 fine, 40 years in prison or both. They can also land themselves a place on the state’s sex offender registry.

There are no exceptions, not even for underage teens who have consensual sex.

Various officials are now proposing carving out an exception for those underage teens. On Thursday, state officials heard two hours of public comments on legislation that would do just that. The legislation comes from state Rep. Fred Kessler and State Rep. Joel Kleefisch, who noted that the bill has been decades in the making.

The bill would create a new offense, underage sexual activity, which would apply to a person less than 19 years old who has sex with a child between 15 and 18 years old or with a 15-year-old. The crime would be a Class A misdemeanor.

The proposal would also create additional exceptions to the requirement to register someone as a sex offender. The exceptions would apply only in certain circumstances, such if the person is younger than 19 and less than four years older than the victim.

The group that testified on Thursday included prosecutors, criminal law professors and even a few mothers whose underage teenagers had been charged under the statute and are now are on the sex-offender registry.

“We are really only one of a handful of states that don’t have a an age-gap provision or affirmative  defense for teenagers in this position,” said Mary Prosser, a University of Wisconsin law professor who has researched the situation and has represented teens who have been ensnared by the current statute.

But not all members of the legal profession were in agreement.

Assistant attorney general Shelly Rusch, representing the state Department of Justice and Attorney General Brad Schimel, spoke in opposition. She said the proposed law change would run afoul of the priority the state has long put on protecting children and said she is concerned about the policy message the proposal could send.

“We view this legislation as a solution in search of a problem,” said Rusch.

She said that she and her colleagues have never charged anyone under the hypothetical circumstances that the bill comes in response to. She noted that when she started as a prosecutor in 1987 in Kenosha County, there was a policy that let prosecutors decline filing charges or defer prosecution in these sorts of circumstances.

“If you trust your prosecutors, take a look at the way we’ve been functioning and continue to trust us,” Rusch said.

Ben Kempinen, a law professor at the University of Wisconsin-Madison, agreed that most DAs would not file charges in these situations.

But Kempinen noted that a few prosecutors, instead of explaining the consequences to the two parties and making that the end of it, would trudge ahead and charge.

“… when you have a vague law … and you have people who have diff opinions about sex, religion and the role of government, you get widely disparate cases,” he said.

Kempinen said the legislation would essentially ensure the law conforms to what happens in practice. He suggested the situations in question present a case when the punishment is completely out of proportion to the supposed crime.

“We don’t need life sentences for retail theft, so why would we need this?” Kempinen said.

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