SEX OFFENSES: ch. 944
Updated 6/26/08

Sex Offenses under Ch. 944 (Since-Repealed) – Applicable Statute of Limitations
State v. Bruce Duncan MacArthur, 2008 WI 72, on Certification
For MacArthur: Alex Flynn
Amicus: Robert R. Henak
Issue/Holding: Alleged violations, between 1965 and 1972, of since-repealed ch. 944 sexual assault statutes come within the statute of limitations provision extant during that time frame.
There is, of course, a whole lot more to it than that, at least in terms of getting to that point, but this may be the nub of it:
¶17      We conclude that the 1965-1972 version of Wis. Stat. § 939.74 governs the case at issue because (1) here, the offenses allegedly occurred prior to the effective date of § 939.74(2)(c), which was July 1, 1989; and (2) the legislature did not include chapter 944 crimes in subsection (2)(c) of § 939.74 even though it specifically included chapter 948 crimes. Accordingly, neither the 1987 amendment to § 939.74, which created subsection (2)(c), nor any subsequent amendment to subsection (2)(c) applies to the case at hand.

¶18      Wisconsin Stat. §§ 990.06 and 991.07 [12] instruct that when a limitation period has been repealed and the repealing act provides for a new limitation period, "such latter limitation or period shall apply only to such rights or remedies as shall accrue subsequently to the time when the repealing act shall take effect" and the repealed act shall continue in force and be operative unless the repealing act specifically provides otherwise.

¶19      Applying Wis. Stat. §§ 990.06 and 991.07 to the case at hand, we conclude that Wis. Stat. § 939.74(2)(c) (1987-88) (effective July 1, 1989), does not apply to MacArthur. The causes of action here accrued between 1965 and 1972. …

¶26      In summary, by its plain language, no version of subsection (2)(c) applies to the chapter 944 charges from 1965-1972. The 1987 version of Wis. Stat. § 939.74 does not apply because it specifically stated that subsection (2)(c) was to apply only prospectively from July 1, 1989, and subsection (2)(c) listed only chapter 948 offenses, thus leaving out any mention of "predecessor statutes" to chapter 948. The 1993, 1997, and 2003 versions do not apply to the case at hand for two reasons. First, the legislature has not specifically withdrawn the 1987 directive to apply subsection (2)(c) only prospectively. Second, the post-1987 amendments apply only to claims not yet barred by a previous version of subsection (2)(c). The 2005 version of Wis. Stat. § 939.74 does not apply because it became effective after MacArthur was charged with these offenses.

This result seems, at first glance to be very fact-specific (which is to say, limited to repealed ch. 944 offenses), but the concurrence (¶¶55-65) argues that the implications are quite broad. Perhaps so if, for a superceding statute of limitations to have retroactive effect, the statutory language must so specify.
Prostitution, § 944.30(1) – Sufficiency of Evidence – On Charge of Soliciting Intercourse: Offer to Watch Subject Masturbate
State v. David Richard Turnpaugh, 2007 WI App 222
For Turnpaugh: David P. Geraghty, Michael Sosnay
Issue: Given that, as charged, the offense required soliciting “sexual intercourse” (which in turn is defined as “vulvar penetration”), whether the statement “that he was looking for sex and he wanted me to masturbate and that he wanted to watch” is sufficient to support conviction. Holding:
¶7        Although Turnpaugh said he was “looking for sex,” he limited the scope of that phrase by describing >what he was willing to pay for—watching Ferguson masturbate. Offering payment is, of course, the sine qua non of the violation of Wis. Stat. § 944.30(1). Thus, even though, looking at the evidence in a light most favorable to the jury verdict, Turnpaugh might have also wanted to have sexual intercourse with Ferguson, he only offered to give her something “of value” in return for the voyeuristic gratification he would get from watching her masturbate. Since the statute requires a request for “nonmarital sexual intercourse” be coupled with the offer of “anything of value,” the evidence that Turnpaugh was willing to pay to watch Ferguson masturbate does not satisfy § 944.30(1).
This was the result of a sting. Interestingly, none of the subsections in 944.30 criminalize “voyeuristic gratification,” so it’s not as if the State inadvertently lodged the wrong charge. Though the court doesn’t mention it, there’s nothing that fits; the State simply plunged ahead with a prosecution for something that couldn’t meet the elements. Good thing Milwaukee isn’t plagued by violent crime, http://itmdapps.ci.mil.wi.us/publicApplication_SR/aldermanicDistrict/districtmap_final.jsp, else you might think this a profligate waste of limited criminal justice resources. Well, now they can get back to the business of trying to jail pizza delivery guys with the temerity to think they have the right to protect themselves from deadly assault before the police can complete their voyeurism stings and ride to the rescue, http://www.jsonline.com/story/index.aspx?id=666506.
Obscenity - constitutionality of statute - jury instructions - selective prosecution - evidence of prevailing community standards.
County of Kenosha v. C & S Management, 223 Wis.2d 373, 588 N.W.2d 236 (1999), on certification.
For C & S: Robert R. Henak, and Shellow, Shellow & Glynn.
Issue/Holding: Obscenity statute, Wis. Stat. § 944.21 (1995-96), survives freedom-of-speech and void-for-vagueness challenges.
Couple of points. There don't presently appear to be many obscenity prosecutions at all and fewer still involving SPD clients (excepting offenses involving distribution to and depictions of children, see. ch. 948). But as long as obscenity remains prosecutable, potential developments are worth tracking. Which leads to the second point: C & S seems to typify the futility of 1st-amendment based challenges, but a different and possibly more promising line of attack may be available following the subsequent decision in Lawrence v. Texas, namely the distinct theory of substantive due process. See, generally, Julie Hilden, "A Federal Judge Dismisses an Obscenity Prosecution on Privacy Grounds," and U.S. v. Extreme Associates, Inc., W.D. PA No. 03-0203, 1/20/05.
Obscenity - evidence of prevailing community standards.
County of Kenosha v. C & S Management, 223 Wis.2d 373, 588 N.W.2d 236 (1999), on certification.
For C & S: Robert R. Henak, and Shellow, Shellow & Glynn.
Holding: C & S argues improper exclusion of evidence, having to do with a telephone survey, as related to "community standards": Expert testimony on community standards isn't constitutionally required; the survey used in this case wasn't relevant, largely because it didn't convey the explicitness of a video.
Obscenity -- selective prosecution.
County of Kenosha v. C & S Management, 223 Wis.2d 373, 588 N.W.2d 236 (1999), on certification.
For C & S: Robert R. Henak, and Shellow, Shellow & Glynn.
Holding: A prosecutor has great, but not unfettered discretion. A challenger must make a prima facie showing of both discriminatory effect and purpose, before the circuit court must hold an evidentiary hearing on the challenge. This showing, more particularly, requires proof that the defendant has been singled out for prosecution while others similarly situated haven't, and that the selection was based on impermissible considerations such as race, religion, or exercise of constitutional rights. C & S fails this requirement. C & S argues that other video stores in Kenosha weren't prosecuted despite distributing comparable sexually explicit videos; therefore, only stores specializing in sexually explicit materials have been prosecuted. The court rejects this argument: "Only if Crossroads [C & S] could show that it was prosecuted for exercising its rights to sell protected sexually explicit material while the others did not exercise that same right could they have successfully established the first prong of their claim." Since the unprosecuted are also exercising their first amendment rights, C & S can't make the necessary showing. The prosecution, the court continues, made a defensible decision to single C & S out, given "its prominent location at the entryway to the state[.]"
Obscenity -jury instructions.
County of Kenosha v. C & S Management, 223 Wis.2d 373, 588 N.W.2d 236 (1999), on certification.
For C & S: Robert R. Henak, and Shellow, Shellow & Glynn.
Holding: The standard for obscenity is set by Miller v. California, 413 U.S. 15 (1973).The trial court modified the language of the Miller obscenity standards in its jury instructions (the instructions added the adjectives "unhealthy, unwholesome and degrading" to the options of "shameful or morbid interest in sex...."). This expansion, the supreme court holds, didn't encompass protected speech (since the various definitions are synonymous with "shameful" and/or "morbid"). The instructions therefore weren't inaccurate, and didn't mislead the jury.
Prostitution - Soliciting Voyeuristic Acts.
State v. Richard L. Kittilstad, 231 Wis.2d 245, 603 N.W.2d 732 (1999), affirming State v. Kittilstad, 222 Wis.2d 204, 585 N.W.2d 925 (Ct. App. 1998).
For Kittilstad: Richard L. Wachowski.
Issue: Whether offering money in exchange for the opportunity to watch sex acts may amount to soliciting prostitution under § 944.32
Holding: The statute requires that the defendant "solicit" someone "to practice prostitution." ¶25. The person being solicited need not him or herself be a "prostitute." Rather, by prohibiting having, offering to have, or requesting to have sex in exchange for anything of value, the statute looks to the mental state of the person engaged in the acts of prostitution, not whether the acts were a "commercial transaction." ¶30. Thus, acceding to a request to perform for money sex acts that the requester could watch would amount to prostitution. And, although to "practice" prostitution means repeated, ongoing acts of prostitution, the defendant allegedly requested multiple acts and therefore falls within the statute.