Questions about consent and age are common in sex crime cases. Wisconsin law draws clear lines about who can legally consent to sexual acts, and crossing them can lead to felony charges. If you’re facing an allegation involving a minor, it’s important to understand what the law actually says and where defenses may exist.
Consent Under Wisconsin Law
Wisconsin law treats minors differently than it treats adults when it comes to sexual consent. The age of consent for sexual intercourse is 18. Under state law, sexual contact or sexual intercourse with a child under 16 can be charged as a felony even when no force is alleged—and even when the accuser appeared willing. In many cases, consent is legally irrelevant.
The specific charge depends on the child’s age, the accused person’s age, and whether additional factors like force or bodily harm are claimed.
Children Under 16 Can NEVER Give Legal Consent to Sexual Acts
Second-degree sexual assault of a child applies when someone has sexual contact or sexual intercourse with a person who has not reached age 16. The law explicitly criminalizes this conduct, even when it’s consensual. Courts have rejected arguments that mutual agreement makes the conduct lawful.
In other words, consent is not a defense to a second-degree sexual assault of a child charge or to any other charge involving sexual contact with a child under 16.
First-Degree Charges and Force or Age
Not all child sexual assault charges are the same. Wisconsin law elevates certain cases to first-degree sexual assault of a child, which is a Class A felony. This happens when:
- The child was under 13
- Sexual intercourse occurred with a child under 12
- Sexual contact or intercourse occurred with a child under 16 using force or threat of force
- Great bodily harm occurred
Some first-degree charges require proof of force. Others rely solely on the child’s age. This distinction is important: prosecutors choose charges based on which elements they believe they can prove.
Minors Who Are 16 or 17 Have a Limited Ability to Consent
Once a person turns 16, they can generally consent to sexual contact, but not intercourse. However, exceptions exist. Separate statutes make consent invalid when the accused person holds a position of authority or trust over a 16- or 17-year-old. These cases are charged under statutes such as:
- Sexual assault of a child by a caregiver
- Sexual intercourse with a child 16 or older by a person in a position of authority
Teachers and others with authority can still face felony charges, even when the accuser is 16 or 17 and appears to have agreed.
Mistake about a child’s age is NEVER a Defense in Wisconsin
Believing the accuser was older is NEVER a defense in Wisconsin child sex crime cases. Minors with fake IDs or minors who lied about their age might seem to help, but in Wisconsin courts won’t even allow that testimony in a trial in most cases. The theory is that the law protects the minor at all costs, and the adult is always responsible to verify age or stay away.
Talk With a Madison Criminal Defense Lawyer About Your Case
If you’re facing a sex crime allegation involving a minor in Madison or the surrounding Dane County area, I can help. I’m a solo criminal defense attorney based in Madison, Wisconsin, and I focus on serious criminal charges, including sex crimes. To discuss how Wisconsin’s consent laws apply to your situation, contact Christopher T. Van Wagner S.C. for a confidential consultation.
