Intimate Parts Case Analysis

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The legislature’s lack of any distinction between the male and female breast in sec. 939.22(19), combined with the numerous instances in which the legislature did so distinguish in other statutes, provides strong support for the court’s ultimate conclusion that the legislature did not intend any distinction in the sexual assault statute.

Nevertheless, the court’s initial determination that the statute is not even ambiguous is highly suspect.

It is rare for a court to do as it did here – fail to cite a single dictionary definition when faced with the issue of whether a word is ambiguous.

Had the court followed standard operating procedure and done so, it would have been very hard pressed to hold the statute unambiguous.

Webster’s first definition of "breast" is as follows: "either of two protuberant milk-producing glandular organs situated on the front of the chest in the human female and some other mammals; broadly: a discrete mammary gland."

The second definition provided is, "the fore or ventral part of the body between the neck and the abdomen."

Given these definitions, the term is clearly ambiguous, and the court’s holding to the contrary, without citing any relevant definition, is disingenuous, and undermines the holding.

	Links Wisconsin Court of Appeals Related Article ‘Intimate parts’ include male chest

Section 939.22(19)’s use of the term "of a human being," cannot be interpreted to make the statute unambiguous, either. Although some of the body parts defined as "intimate," such as buttock and anus, are common to both males and females, others, such as penis and vagina, are not.

Thus, "breast" could be read to be gender-specific, just as penis and vagina clearly are, notwithstanding the language, "of a human being."

As a result, defense attorneys representing defendants in Forster’s position should continue to preserve this issue. Should the Supreme Court ultimately consider the issue, it may agree with the court of appeals that the legislature’s use of the term "female" in so many other statutes indicates gender-neutral intent in sec. 939.22(19).

To do so, however, it will have to at least acknowledge the obvious ambiguity that the court of appeals glossed over.

– David Ziemer

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David Ziemer can be reached by email.