Sex crime charges can turn on consent. One of the most common and most misunderstood concepts in Wisconsin sexual assault law is “threat of force.” You may believe force means physical violence. Unfortunately, Wisconsin law is broader than that, and prosecutors rely on this broader definition in many cases.

How Wisconsin Law Defines Sexual Assault

Wisconsin does not use the word “rape” in its statutes. Instead, the law refers to sexual assault. Sexual assault can involve sexual intercourse or sexual contact without consent, depending on the charge level.

Sexual assault generally involves sexual intercourse or sexual contact without consent. The degree of the charge depends on additional elements. Those include force, injury, weapons, intoxication, or whether other people were involved.

Threat of force is most commonly tied to second-degree sexual assault, though it can be part of a first-degree charge if other statutory factors are present.

When Threat of Force Applies Under the Statute

Second-degree sexual assault occurs when a person has sexual contact or sexual intercourse without consent by using or threatening to use force or violence. 

There does not have to have been actual violence or physical injury for there to have been threat of force. The statute and Wisconsin case law allow prosecutors to argue that conduct, words, or circumstances created fear that compelled submission. Threat of force allegations often rely on:

• Verbal statements implying harm
• Aggressive or intimidating behavior
• Blocking movement or exits
• Prior confrontations or history
• Circumstances that made the accuser fear consequences

The state does not need to prove that force was actually used — only that the express or implied threat of force caused submission.

When Threat of Force Becomes First-Degree Sexual Assault

Threat of force alone does not automatically make a case first-degree sexual assault. First-degree sexual assault involving force requires additional statutory elements, such as:

• Using or threatening to use a dangerous weapon 
• Causing pregnancy or great bodily harm 
• Being aided or abetted by one or more other persons while using or threatening force 
• Sexual assault of a person aged 60 or older under specific circumstances 

In practice, most threat-of-force cases without these added factors are charged as second-degree sexual assault, not first-degree.

Consent and Threat of Force

Wisconsin considers consent to be affirmative words or overt actions that indicate a freely given agreement to sexual acts. However, consent is not valid if it results from fear. Submission caused by intimidation or threat of force is not legally considered consent. That means:

• Failure to resist is not consent
• Silence alone does not equal consent
• Consent must be freely given, not compelled
• Fear-based submission defeats consent

In threat-of-force cases, the case often hinges on whether the accuser’s fear was reasonable and whether your conduct caused that fear. Many people charged in these cases share similar assumptions that don’t align with Wisconsin law. For example:

• “There was no violence.” Physical violence is not required to prove threat of force.
• “They didn’t say no.” Consent must be freely given. Fear-induced submission is not consent.
• “It was just an argument.” Verbal aggression or intimidating conduct can support a threat-of-force allegation, depending on the circumstances.

How Prosecutors Try to Prove Threat of Force

The state doesn’t have to show that you intended to threaten or use force. Courts have held that the focus is on whether the conduct created fear and compelled submission. Prosecutors may point to:

• Differences in size or physical presence
• Prior interactions that made fear more credible
• Statements interpreted as intimidating
• Environmental factors that limited escape

Defense strategies in these cases often focus on context and inconsistencies rather than physical evidence.

Get Help from a Madison Criminal Defense Lawyer

If you’re facing a sexual assault charge involving an alleged threat of force, the statutory details matter. I handle serious criminal cases in Madison and throughout Wisconsin. To discuss your situation and how Wisconsin law applies to your case, contact Christopher T. Van Wagner S.C. today.