Wisconsin Statutory Elements and Consequences
Chapter 946 Crimes Against Government and its Administration
The Wisconsin Statutory Elements and Consequences is a compilation of criminal statutory components, organized by Wisconsin statute chapter and enhanced with definitions of frequently referenced terms, and links to Wisconsin Criminal Jury Instructions. The information provided on this website should not be construed as legal advice and is meant for informational purposes only. Please note that this information may not be up to date. For more information about this resource, contact Bryce Pierson by email or phone at (608) 266-7807.
Table of contents
- § 946.02(1)(a) Sabotage
- § 946.10(1) Bribery: transferring property to a public employee to induce action or failure to act
- § 946.10(2) Accepting a bribe
- § 946.12(1) Misconduct in public office: failure or refusal to perform duty
- § 946.12(2) Misconduct in public office: performance or unauthorized or forbidden act
- § 946.12(3) Misconduct in public office: exercise of discretionary power for a dishonest advantage
- § 946.12(4) Misconduct in public office: false entry, return, certificate, report, or statement
- § 946.12(5) Misconduct in public office: unlawful solicitation or acceptance of anything of value
- § 946.13(1)(a) Private interest in a public contract: entering into a contract in a private capacity and being authorized by law to participate in the making of the contract as a public officer
- § 946.13(1)(b) Private interest in a public contract: participating in the making of or performing a discretionary function in regard to a contract in which one has a private pecuniary interest
- § 946.31 Perjury
- § 946.32(1)(a) False swearing: false statement under oath: felony
- § 946.32(1)(b) False swearing: inconsistent statements
- § 946.32(2) False swearing: misdemeanor false statement under oath
- § 946.41 Resisting or obstructing an officer
- § 946.41(2)(a) Obstructing an officer: giving false information
- § 946.415(2) Failure to comply with an officer’s attempt to take a person into custody
- § 946.42(2) Escape from the custody of a peace officer after legal arrest for a forfeiture offense
- § 946.42(2m) Escape from custody resulting from violation of probation, parole, or extended supervision
- § 946.42(3)(a) Escape from custody resulting from legal arrest for a crime
- § 946.42(3m) Escape from custody: Chapter 980 custody order
- § 946.42(4) Escape: Individual with custody injured
- § 946.425(1) Failure to report to jail: periods of imprisonment
- § 946.425(1m) Failure to report to jail: stayed sentence
- § 946.425(1r)(a) and (b) Failure to report to jail: confinement order
- § 946.43(1m)(a) Assault by a prisoner: placing an officer, employee, visitor. or inmate in apprehension of an immediate battery likely to cause death or great bodily harm
- § 946.43(1m)(b) Assault by a prisoner: restraining or confining
- § 946.43(2m) Assault by a prisoner: throwing or expelling a bodily substance
- § 946.44(1)(a) Permitting escape
- § 946.44(1)(b) Assisting escape: aiding a prisoner to escape by providing escape tools
- § 946.44(1)(b) and (1g) Assisting escape: public officer or employee
- § 946.44(1m) Introducing a firearm into an institution
- § 946.46 Encouraging a violation of probation, extended supervision or parole
- § 946.47(1)(a) Aiding a felon
- § 946.47(1)(b) Aiding a felon by destroying, etc., physical evidence
- § 946.49(1) Bail jumping
- § 946.64 Communicating with a juror
- § 946.645 Picketing, parading, or demonstrating at the residence of a judge
- § 946.65 Obstructing justice
- § 946.68(1r)(a) Simulating a legal process
- § 946.70(1) Impersonating a peace officer, fire fighter, or other emergency personnel
- § 946.83(1) Racketeering activity: using proceeds of a pattern of racketeering activity to establish or operate an enterprise
- § 946.83(2) Racketeering activity: acquiring or maintaining an interest in or control of an enterprise through a pattern of racketeering activity
- § 946.83(3) Racketeering activity: conducting or participating in an enterprise through a pattern of racketeering activity
- § 946.91(2)(a) Medical assistance fraud: making a false statement in an application for benefit or payment
- § 946.92(2)(a) Food stamp fraud: misstating facts on an application
- § 946.93(2) Public assistance fraud: making a false statement in an application for public assistance
- § 946.93(3)(a) Public assistance fraud: concealing or failing to disclose an event affecting eligibility
§ 946.02(1)(a) Sabotage
Summary
To be guilty of this offense, the prosecution must prove that the defendant intentionally damaged, interfered with, or tampered with any property, and had reasonable grounds to believe that their act would hinder, delay, or interfere with the prosecution of war or other military action or the preparation for defense, war, or other military action by the United States or its allies.
Elements of the Offense
- Intentional Act: The defendant must intentionally damage, interfere with, or tamper with any property.
- Reasonable Grounds to Believe: The defendant must have reasonable grounds to believe that their act will hinder, delay, or interfere with:
- The prosecution of war or other military action, or
- The preparation for defense, war, or other military action by the United States or its allies.
Jury Instruction
§ 946.10(1) Bribery: transferring property to a public employee to induce action or failure to act
Summary
To be found guilty of this offense, the prosecution must prove that the defendant transferred or promised property or a personal advantage to a public officer or employee with the intent to influence their conduct in an official capacity or induce them to act in violation of their lawful duties.
Elements of the Offense
- Transfer or Promise of Property or Personal Advantage: The defendant must either:
- Transferred property or a personal advantage to a public officer or employee, or on their behalf, or
- Promised to transfer property or a personal advantage to a public officer or employee, or on their behalf.
- Public Officer or Employee: The recipient of the transfer or promise must be a public officer or public employee acting in their official capacity.
- Unauthorized to Receive: The property or personal advantage must be something the public officer or employee was not authorized to receive.
- Intent: The defendant must have acted with the intent to:
- Influence the conduct of the public officer or employee regarding a matter that by law was pending, or might come before the officer or employee in their official capacity.
OR - Induce the public officer or employee to perform or omit any act that would violate their lawful duty.
- Influence the conduct of the public officer or employee regarding a matter that by law was pending, or might come before the officer or employee in their official capacity.
Jury Instruction
Wis JI-Criminal 1720
Wis JI-Criminal 1721
§ 946.10(2) Accepting a bribe
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a public officer or public employee who directly or indirectly accepted or offered to accept any property or personal advantage, which the officer or employee was not authorized to receive, pursuant to an understanding that the officer or employee would act in a certain manner in relation to any matter pending or that might come before the officer or employee in their official capacity, or that the officer or employee would do or omit to do any act in violation of their lawful duty.
Elements of the Offense
- Person: The defendant must be a public officer or public employee.
- Acceptance or Offer to Accept: The defendant must directly or indirectly accept or offer to accept any property or personal advantage.
- Unauthorized Receipt: The property or personal advantage must be something the officer or employee is not authorized to receive.
- Pursuant to an Understanding: The acceptance or offer must be pursuant to an understanding that the officer or employee will do one or more of the following:
- Act in a certain manner in relation to any matter which by law is pending or might come before the officer or employee in their official capacity.
- Do or omit to do any act in violation of the officer’s or employee’s lawful duty.
Jury Instruction
§ 946.12(1) Misconduct in public office: failure or refusal to perform duty
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a public officer or public employee who intentionally failed or refused to perform a known mandatory, nondiscretionary, ministerial duty of their office or employment within the time or in the manner required by law.
Elements of the Offense
- Person: The defendant must be a public officer or public employee.
- Intentional Act: The defendant must intentionally fail or refuse to perform a duty.
- Type of Duty: The duty must be:
- Known to the defendant.
- Mandatory.
- Nondiscretionary.
- Ministerial (involving obedience to instructions or laws, rather than discretion or judgment).
- Requirement by Law: The duty must be one that the officer’s or employee’s office or employment requires to be performed within a specific time or in a specific manner as mandated by law.
Jury Instruction
§ 946.12(2) Misconduct in public office: performance or unauthorized or forbidden act
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a public officer or public employee who, in their capacity as such officer or employee, did an act which they knew was in excess of their lawful authority or which they knew they were forbidden by law to do in their official capacity.
Elements of the Offense
- Person: The defendant must be a public officer or public employee.
- Act: The defendant must do an act in their capacity as a public officer or public employee.
- Knowledge: The defendant must know that the act is:
- In excess of their lawful authority, or
- Forbidden by law to do in their official capacity.
Jury Instruction
§ 946.12(3) Misconduct in public office: exercise of discretionary power for a dishonest advantage
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a public officer or public employee who, whether by act of commission or omission, in their capacity as such officer or employee, exercised a discretionary power in a manner inconsistent with the duties of their office or employment or the rights of others, with the intent to obtain a dishonest advantage for themselves or another.
Elements of the Offense
- Person: The defendant must be a public officer or public employee.
- Act or Omission: The defendant must commit an act of commission or omission.
- In Official Capacity: The act or omission must be in the defendant’s capacity as a public officer or public employee.
- Exercise of Discretionary Power: The defendant must exercise a discretionary power.
- Inconsistent Manner: The exercise of discretionary power must be:
- Inconsistent with the duties of the officer’s or employee’s office or employment, or
- Inconsistent with the rights of others.
- Intent: The defendant must have the intent to obtain a dishonest advantage for:
- The officer or employee, or
- Another person.
Jury Instruction
§ 946.12(4) Misconduct in public office: false entry, return, certificate, report, or statement
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a public officer or public employee who, in their capacity as such officer or employee, made an entry in an account or record book, or in a return, certificate, report, or statement, which in a material respect the officer or employee intentionally falsified.
Elements of the Offense
- Person: The defendant must be a public officer or public employee.
- Act: The defendant must make an entry in an account or record book, or in a return, certificate, report, or statement.
- In Official Capacity: The act must be done in the defendant’s capacity as a public officer or public employee.
- Intentional Falsification: The entry must be intentionally falsified by the defendant.
- Material Respect: The falsification must be in a material respect.
Jury Instruction
§ 946.12(5) Misconduct in public office: unlawful solicitation or acceptance of anything of value
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a public officer or public employee who, under the color of their office or employment, intentionally solicited or accepted for the performance of any service or duty something of value which they knew was greater or less than what is fixed by law.
Elements of the Offense
- Person: The defendant must be a public officer or public employee.
- Under Color of Office or Employment: The act must be done under the guise of the officer’s or employee’s official capacity.
- Intentional Act: The defendant must intentionally solicit or accept something of value.
- For Performance of Service or Duty: The solicitation or acceptance must be for the performance of any service or duty.
- Knowledge of Value: The defendant must know that the value solicited or accepted is greater or less than what is fixed by law.
Jury Instruction
§ 946.13(1)(a) Private interest in a public contract: entering into a contract in a private capacity and being authorized by law to participate in the making of the contract as a public officer
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a public officer or public employee who, in their private capacity, negotiated, bid for, or entered into a contract in which they had a private pecuniary interest, direct or indirect, while simultaneously being authorized or required by law to participate in their official capacity in the making of that contract or to perform some official function regarding that contract requiring the exercise of discretion on their part.
Elements of the Offense
- Person: The defendant must be a public officer or public employee.
- Private Capacity: The defendant must act in their private capacity.
- Contract with Private Pecuniary Interest: The defendant must negotiate, bid for, or enter into a contract in which they have a private pecuniary interest, direct or indirect.
- Simultaneous Official Capacity: At the same time, the defendant must be authorized or required by law to:
- Participate in their official capacity in the making of that contract, or
- Perform some official function regarding that contract requiring the exercise of discretion on their part.
Jury Instruction
§ 946.13(1)(b) Private interest in a public contract: participating in the making of or performing a discretionary function in regard to a contract in which one has a private pecuniary interest
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a public officer or public employee who, in their official capacity, participated in the making of a contract in which they had a private pecuniary interest, direct or indirect, or performed some function requiring the exercise of discretion regarding that contract.
Elements of the Offense
- Participation in Contract: The defendant, in their capacity as a public officer or employee, must participate in the making of a contract.
- Private Pecuniary Interest: The defendant must have a private pecuniary interest in the contract, either direct or indirect.
- Exercise of Discretion: The defendant must perform some function regarding that contract requiring the exercise of discretion on their part.
Jury Instruction
Wis JI-Criminal 1741
Wis JI-Criminal 1742
§ 946.31 Perjury
Summary
To be guilty of this offense, the prosecution must prove that the defendant, under oath or affirmation, orally made a false material statement which they did not believe to be true, in any matter, cause, action, or proceeding before a court, magistrate, judge, referee, court commissioner, administrative agency, arbitrator authorized by statute to determine issues of fact, notary public while taking testimony for use in a pending court action or proceeding, officer authorized to conduct inquests of the dead, grand jury, or legislative body or committee.
Elements of the Offense
- Under Oath or Affirmation: The defendant must be under oath or affirmation.
- Oral Statement: The defendant must orally make a statement.
- False Statement: The statement must be false.
- Material Statement: The false statement must be material (i.e., significant or relevant to the matter, cause, action, or proceeding).
- Belief: The defendant must not believe the statement to be true.
- Context: The statement must be made in any matter, cause, action, or proceeding before one of the following:
- A court.
- A magistrate.
- A judge, referee, or court commissioner.
- An administrative agency or arbitrator authorized by statute to determine issues of fact.
- A notary public while taking testimony for use in an action or proceeding pending in court.
- An officer authorized to conduct inquests of the dead.
- A grand jury.
- A legislative body or committee.
Jury Instruction
§ 946.32(1)(a) False swearing: false statement under oath: felony
Summary
To be guilty of this offense, the prosecution must prove that the defendant, under oath or affirmation, or upon signing a statement pursuant to s. 887.015, made or subscribed a false statement which they did not believe to be true, when such oath, affirmation, or statement was authorized or required by law, or required by any public officer or governmental agency as a prerequisite to the officer or agency taking some official action.
Elements of the Offense
- Under Oath, Affirmation, or Signed Statement: The defendant must be under oath or affirmation, or must have signed a statement pursuant to s. 887.015.
- False Statement: The defendant must make or subscribe a false statement.
- Belief: The defendant must not believe the statement to be true.
- Authorization or Requirement: The oath, affirmation, or statement must be:
- Authorized or required by law, or
- Required by any public officer or governmental agency as a prerequisite to the officer or agency taking some official action.
Jury Instruction
§ 946.32(1)(b) False swearing: inconsistent statements
Summary
To be guilty of this offense, the prosecution must prove that the defendant made or subscribed two inconsistent statements under oath or affirmation, or upon signing a statement pursuant to s. 887.015, in regard to any matter where the oath, affirmation, or statement was authorized or required by law, or required by any public officer or governmental agency as a prerequisite to the officer or agency taking some official action, and that the circumstances demonstrate the defendant knew at least one of the statements was false when made.
Elements of the Offense
- Under Oath, Affirmation, or Signed Statement: The defendant must be under oath or affirmation, or must have signed a statement pursuant to s. 887.015.
- Inconsistent Statements: The defendant must make or subscribe two inconsistent statements.
- Authorization or Requirement: The oath, affirmation, or statement must be:
- Authorized or required by law, or
- Required by any public officer or governmental agency as a prerequisite to the officer or agency taking some official action.
- Knowledge of Falsity: The circumstances must demonstrate that the defendant knew at least one of the statements was false when made.
Jury Instruction
§ 946.32(2) False swearing: misdemeanor false statement under oath
Summary
To be guilty of this offense, the prosecution must prove that the defendant, under oath or affirmation, or upon signing a statement pursuant to s. 887.015, made or subscribed a false statement which they did not believe to be true.
Elements of the Offense
- Under Oath, Affirmation, or Signed Statement: The defendant must be under oath or affirmation, or must have signed a statement pursuant to s. 887.015.
- False Statement: The defendant must make or subscribe a false statement.
- Belief: The defendant must not believe the statement to be true.
Jury Instruction
§ 946.41 Resisting or obstructing an officer
Summary
To be guilty of this offense, the prosecution must prove that the defendant knowingly resisted or obstructed an officer while the officer was doing any act in an official capacity and with lawful authority.
Enhanced penalties apply if:
- The violator gives false information or places physical evidence with intent to mislead an officer, leading to the conviction of an innocent person.
- The violator causes substantial bodily harm or a soft tissue injury to an officer.
- The violator causes great bodily harm to an officer.
Elements of the Offense
- Prohibited Conduct: The defendant must resist or obstruct an officer.
- Officer: The officer must be a peace officer or other public officer or public employee having the authority by virtue of their office or employment to take another into custody.
- Act in Official Capacity: The officer must be doing any act in an official capacity.
- Lawful Authority: The officer must be acting with lawful authority.
- Knowledge: The defendant must know that the officer was acting in an official capacity and with lawful authority and must know that their conduct would resist or obstruct the officer.*
Jury Instruction
Wis JI-Criminal 1765
Wis JI-Criminal 1766
* This interpretation of the knowledge element reflected was confirmed in State v. Lossman, 118 Wis.2d 526, 536, 348 N.W.2d 159 (1984): The accused must believe or know he (1) resisted the officer, while the officer was (2) acting in an official capacity and (3) with lawful authority. Also see State v. Elbaum, 54 Wis.2d 213, 194 N.W.2d 1660 (1972), and State v. Zdiarstek, 53 Wis.2d 776, 193 N.W.2d 833 (1972).
§ 946.41(2)(a) Obstructing an officer: giving false information
Summary
To be guilty of this offense, the prosecution must prove that the defendant knowingly resisted or obstructed an officer while the officer was doing any act in an official capacity and with lawful authority.
Elements of the Offense
- Prohibited Conduct: The defendant must knowingly give false information to an officer, or knowingly place physical evidence with the intent to mislead the officer in the performance of their duty, including the service of any summons or civil process.
- Officer: The officer must be a peace officer or other public officer or public employee having the authority by virtue of their office or employment to take another into custody.
- Official Capacity: The officer must be performing any act in an official capacity.
- Lawful Authority: The officer must be acting with lawful authority.
- Knowledge: The defendant must know that the officer was acting in an official capacity and with lawful authority.*
Jury Instruction
* This interpretation of the knowledge element is based on the one found in Wis JI-Criminal 1765 and 1766, which was confirmed as correct in State v. Lossman, 118 Wis.2d 526, 536, 348 N.W.2d 159 (1984): The accused must believe or know he (1) resisted the officer, while the officer was (2) acting in an official capacity and (3) with lawful authority. Also see State v. Elbaum, 54 Wis.2d 213, 194 N.W.2d 1660 (1972), and State v. Zdiarstek, 53 Wis.2d 776, 193 N.W.2d 833 (1972).
§ 946.415(2) Failure to comply with an officer’s attempt to take a person into custody
Summary
To be guilty of this offense, the prosecution must prove that the defendant intentionally refused to comply with an officer’s lawful attempt to take them into custody, retreated or remained in a building or place and, through action or threat, attempted to prevent the officer from taking them into custody, and while doing so, remained or became armed with a dangerous weapon or threatened to use a dangerous weapon regardless of whether they actually had a dangerous weapon.
Elements of the Offense
- Intentional Act: The defendant must intentionally do all of the following:
- Refusal to Comply: Refuse to comply with an officer’s lawful attempt to take him or her into custody.
- Retreat or Remain: Retreat or remain in a building or place and, through action or threat, attempt to prevent the officer from taking him or her into custody.
- Armed with a Dangerous Weapon: While acting under the conditions described in paragraphs (a) and (b), either:
- Remain or become armed with a dangerous weapon, or
- Threaten to use a dangerous weapon regardless of whether he or she has a dangerous weapon.
Jury Instruction
§ 946.42(2) Escape from the custody of a peace officer after legal arrest for a forfeiture offense
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a person in custody who intentionally escaped from custody under the circumstance that they were legally arrested for, lawfully charged with, or convicted of a violation of a statutory traffic regulation, a statutory offense for which the penalty is a forfeiture, or a municipal ordinance.
Elements of the Offense
- Person: The defendant must be a person in custody.
- Intentional Act: The defendant must intentionally escape from custody.
- Circumstances: The escape must occur under one of the following circumstances:
- Pursuant to a legal arrest for a violation of a statutory traffic regulation.
- Pursuant to being lawfully charged with a violation of a statutory traffic regulation.
- Pursuant to being convicted of a violation of a statutory traffic regulation.
- Pursuant to a legal arrest for a statutory offense for which the penalty is a forfeiture.
- Pursuant to being lawfully charged with a statutory offense for which the penalty is a forfeiture.
- Pursuant to being convicted of a statutory offense for which the penalty is a forfeiture.
- Pursuant to a legal arrest for a municipal ordinance.
- Pursuant to being lawfully charged with a municipal ordinance.
- Pursuant to being convicted of a municipal ordinance.
Jury Instruction
§ 946.42(2m) Escape from custody resulting from violation of probation, parole, or extended supervision
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a person who was in the custody of a probation, parole, or extended supervision agent, or a correctional officer, based on an allegation or a finding that they violated the rules or conditions of probation, parole, or extended supervision, and that the defendant intentionally escaped from custody.
Elements of the Offense
- Person: The defendant must be a person in custody.
- Custody: The defendant must be in the custody of a probation, parole, or extended supervision agent, or a correctional officer.
- Reason for Custody: The custody must be based on an allegation or a finding that the person violated the rules or conditions of probation, parole, or extended supervision.
- Intentional Act: The defendant must intentionally escape from custody.
Jury Instruction
§ 946.42(3)(a) Escape from custody resulting from legal arrest for a crime
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a person in custody who intentionally escaped from custody pursuant to a legal arrest for, being lawfully charged with, convicted of, or sentenced for a crime.
Elements of the Offense
- Person: The defendant must be a person in custody.
- Intentional Act: The defendant must intentionally escape from custody.
- Circumstances: The escape must occur under one of the following circumstances:
- Pursuant to a legal arrest for a crime.
- Pursuant to being lawfully charged with a crime.
- Pursuant to being convicted of a crime.
- Pursuant to being sentenced for a crime.
Jury Instruction
Wis JI-Criminal 1772
Wis JI-Criminal 1774
§ 946.42(3m) Escape from custody: Chapter 980 custody order
Summary
To be guilty of this offense, the prosecution must prove that the defendant intentionally escaped from custody while subject to a detention order under s. 980.04(1), a custody order under s. 980.04(3), or an order issued under s. 980.06 committing the person to the custody of the Department of Health Services, regardless of whether the person was placed in institutional care or on supervised release.
Elements of the Offense
- Person: The defendant must be a person in custody.
- Intentional Act: The defendant must intentionally escape from custody.
- Circumstances: The escape must occur under one of the following circumstances:
- While subject to a detention order under s. 980.04(1).
- While subject to a custody order under s. 980.04(3).
- While subject to an order issued under s. 980.06 committing the person to the custody of the Department of Health Services, regardless of whether the person is placed in institutional care or on supervised release.
Jury Instruction
§ 946.42(4) Escape: Individual with custody injured
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a person who was convicted of an escape under this section and that during the course of the escape, an individual who had custody of the defendant was injured.
Elements of the Offense
- Conviction: The defendant must be convicted of an escape under this section (946.42).
- Injury to Custodial Officer: An individual who had custody of the person who escaped must be injured during the course of the escape.
Jury Instruction
§ 946.425(1) Failure to report to jail: periods of imprisonment
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a person who was subject to a series of periods of imprisonment under s. 973.03(5)(b) and that the defendant intentionally failed to report to the county jail as required under the sentence.
Elements of the Offense
- Subject to Imprisonment: The defendant must be subject to a series of periods of imprisonment under s. 973.03(5)(b).
- Knowledge: The defendant must know that they were to report to jail.*
- Ability: The defendant must have the ability to report to jail.*
- Intentional Act: The defendant must intentionally fail to report to the county jail as required under the sentence.
Jury Instruction
* The word “intentionally” is defined to include two aspects: knowledge and purpose. The knowledge requirement is based on § 939.23(3) which provides that when the word “intentionally” is used, it requires that “the actor must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word ‘intentionally.’” The purpose requirement is based on one of the two definitions of intent provided in § 939.23(3). The other, being aware that one’s conduct is practically certain to cause the result, is not likely to apply to this offense. For a discussion of that alternative, see Wis JI-Criminal 923A.
* The third element provides that the defendant must have the ability to report to jail as required. This is based on the general principles for criminal omissions, which include the ability to do the act that is required. See State v. Williquette, 129 Wis.2d 239, 385 N.W.2d 145 (1986).
§ 946.425(1m) Failure to report to jail: stayed sentence
Summary
To be guilty of this offense, the prosecution must prove that the defendant received a stay of execution of a sentence of imprisonment of less than 10 days to a county jail under s. 973.15 (8)(a) and intentionally failed to report to the county jail as required under the sentence.
Elements of the Offense
- Subject: The defendant was sentenced to imprisonment.
- Sentence: The defendant must have received a stay of execution that required the defendant report to the county jail on a specific date.
- Knowledge: The defendant must know that they had to report on the specific date.*
- Ability: The defendant must be able to report as required.*
- Action: The defendant must intentionally fail to report to the county jail.
- Requirement: The failure to report must be in violation of the requirements under the sentence.
Jury Instruction
* The word “intentionally” is defined to include two aspects: knowledge and purpose. The knowledge requirement is based on § 939.23(3) which provides that when the word “intentionally” is used, it requires that “the actor must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word ‘intentionally.’” The purpose requirement is based on one of the two definitions of intent provided in § 939.23(3). The other, being aware that one's conduct is practically certain to cause the result, is not likely to apply to this offense. For a discussion of that alternative, see Wis JI-Criminal 923A.
The fourth element also provides that the defendant must have the ability to report to jail as required. This is based on the general principles for criminal omissions, which include the ability to do the act that is required. See State v. Williquette, 129 Wis.2d 239, 385 N.W.2d 145 (1986).
§ 946.425(1r)(a) and (b) Failure to report to jail: confinement order
Summary
To be guilty of this offense, the prosecution must prove that the defendant was subject to a confinement order as a result of a criminal conviction and intentionally failed to report to the designated county jail or house of correction as required by that order. The severity of the offense depends on whether the underlying conviction was for a misdemeanor or a felony.
Elements of the Offense
- Person: The defendant must be a person who is subject to a confinement order under Wisconsin Statute § 973.09(4) as a result of a criminal conviction.
- Confinement Order: The confinement order must require the defendant to report to a county jail or house of correction for serving a period of confinement.
- Prohibited Conduct: The defendant must fail to report to the county jail or house of correction as required by the confinement order.
- Knowledge: The defendant must know that they had to report on the specific date.*
- Ability: The defendant must be able to report as required.*
- Intent: The failure to report must be intentional.
Jury Instruction
* The word “intentionally” is defined to include two aspects: knowledge and purpose. The knowledge requirement is based on § 939.23(3) which provides that when the word “intentionally” is used, it requires that “the actor must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word ‘intentionally.’” The purpose requirement is based on one of the two definitions of intent provided in § 939.23(3). The other, being aware that one’s conduct is practically certain to cause the result, is not likely to apply to this offense. For a discussion of that alternative, see Wis JI-Criminal 923A.
* The third element provides that the defendant must have the ability to report to jail as required. This is based on the general principles for criminal omissions, which include the ability to do the act that is required. See State v. Williquette, 129 Wis.2d 239, 385 N.W.2d 145 (1986).
§ 946.43(1m)(a) Assault by a prisoner: placing an officer, employee, visitor. or inmate in apprehension of an immediate battery likely to cause death or great bodily harm
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a prisoner confined to a state prison or other state, county, or municipal detention facility who intentionally placed an officer, employee, visitor, or another inmate of such prison or institution in apprehension of an immediate battery likely to cause death or great bodily harm.
Elements of the Offense
- Person: The defendant must be a prisoner.
- Confinement: The defendant must be confined to a state prison or other state, county, or municipal detention facility.
- Intentional Act: The defendant must intentionally place an officer, employee, visitor, or another inmate of such prison or institution in apprehension of an immediate battery.
- Knowledge: The defendant must know that the victim is an officer, employee, visitor, or another inmate of such prison or institution.
- Resulting Apprehension: The apprehension must be of an immediate battery that is likely to cause death or great bodily harm.
Jury Instruction
§ 946.43(1m)(b) Assault by a prisoner: restraining or confining
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a prisoner confined to a state prison or other state, county, or municipal detention facility who intentionally confined or restrained an officer, employee, visitor, or another inmate of such prison or institution without the person’s consent.
Elements of the Offense
- Person: The defendant must be a prisoner.
- Confinement: The defendant must be confined to a state prison or other state, county, or municipal detention facility.
- Intentional Act: The defendant must intentionally confine or restrain an officer, employee, visitor, or another inmate of such prison or institution.
- Knowledge: The defendant must know that the victim is an officer, employee, visitor, or another inmate of such prison or institution.
- Knowledge: The defendant must know that the victim did not consent to the confinement or restraint.*
- Lack of Consent: The confinement or restraint must be without the person’s consent.
Jury Instruction
* If definition of "without consent" is believed to be necessary, see Wis JI-Criminal 948 which provides an instruction based on the definition provided in § 939.22(48). That definition provides that “without consent” means “no consent in fact” or that consent was given because of fear, a claim of legal authority by the defendant, or misunderstanding.
§ 946.43(2m) Assault by a prisoner: throwing or expelling a bodily substance
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a prisoner confined to a state prison or other state, county, or municipal detention facility who intentionally threw or expelled blood, semen, vomit, saliva, urine, feces, or other bodily substance at or toward an officer, employee, visitor, or another prisoner of the prison or facility. The defendant must have done so with the intent that the substance come into contact with the target and with the intent to cause bodily harm or to abuse, harass, offend, intimidate, or frighten the target. Additionally, the target must not have consented to the substance being thrown or expelled at them.
Elements of the Offense
- Person: The defendant must be a prisoner.
- Confinement: The defendant must be confined to a state prison or other state, county, or municipal detention facility.
- Intentional Act: The defendant must intentionally throw or expel blood, semen, vomit, saliva, urine, feces, or other bodily substance at or toward an officer, employee, visitor, or another prisoner of the prison or facility.
- Circumstances:
- Intent to Contact: The defendant must throw or expel the bodily substance with the intent that it comes into contact with the officer, employee, visitor, or other prisoner.
- Intent to Cause Harm or Harass: The defendant must throw or expel the bodily substance with the intent to cause bodily harm to, or to abuse, harass, offend, intimidate, or frighten the officer, employee, visitor, or other prisoner.
- Lack of Consent: The officer, employee, visitor, or other prisoner must not consent to the bodily substance being thrown or expelled at or toward them.
Jury Instruction
§ 946.44(1)(a) Permitting escape
Summary
To be guilty of this offense, the prosecution must prove that the defendant was an officer or employee of an institution where prisoners are detained, that the defendant had custody of the prisoner, and that the defendant intentionally permitted the prisoner to escape.
Elements of the Offense
- Person: The defendant must be an officer or employee of an institution where prisoners are detained.
- Custody: The defendant must have custody of the prisoner.
- Intentional Act: The defendant must intentionally permit a prisoner in their custody to escape.
- Knowledge: The defendant must know that that prisoner was leaving custody without lawful permission or authority.*
Jury Instruction
* “Intentionally” is defined in § 939.23(3). The definition changed effective January 1, 1989, though both the old and new version have "mental purpose" as one definition of “intentionally.” It is the other alternative that changes from “reasonably believes his act, if successful, will cause that result” to “is aware that his conduct is practically certain to cause that result.” See Wis JI-Criminal 923A and 923B.
§ 946.44(1)(b) Assisting escape: aiding a prisoner to escape by providing escape tools
Summary
To be found guilty under of this offense, the prosecution must prove that the defendant, with the intent to aid a prisoner to escape from custody, introduced or transferred an item adapted or useful for escape to the prisoner or into the institution where the prisoner was detained.
Elements of the Offense
- Intent to Aid Escape: The defendant must have acted with the intent to aid a prisoner in escaping from custody.
- Introduction or Transfer of an Item: The defendant must have either:
- Introduced an item into the institution where the prisoner was detained, or
- Transferred the item to the prisoner.
- Nature of the Item: The item introduced or transferred must have been adapted or useful in making an escape.
Jury Instruction
§ 946.44(1)(b) and (1g) Assisting escape: public officer or employee
Summary
To be found guilty under this offense, the prosecution must prove that the defendant, as an officer or employee of an institution detaining prisoners, introduced or transferred an item to aid a prisoner’s escape.
Elements of the Offense
- Public Officer or Employee: The defendant must have been an officer or employee of an institution where prisoners were detained.
- Intent to Aid Escape: The defendant must have acted with the intent to aid a prisoner in escaping from custody.
- Introduction or Transfer of an Item: The defendant must have either:
- Introduced an item into the institution where the prisoner was detained, or
- Transferred the item to the prisoner.
- Nature of the Item: The item introduced or transferred must have been adapted or useful in making an escape.
Jury Instruction
§ 946.44(1m) Introducing a firearm into an institution
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a person who intentionally introduced into an institution where prisoners are detained or transferred to a prisoner any firearm, whether loaded or unloaded, or any article used or fashioned in a manner to lead another person to believe it is a firearm.
Elements of the Offense
- Intentional Act: The defendant must intentionally introduce or transfer an item.
- Item: The item must be a firearm (loaded or unloaded) or any article used or fashioned in a manner to lead another person to believe it is a firearm.
- Location: The introduction or transfer must occur into an institution where prisoners are detained or be transferred to a prisoner.
- Knowledge: The defendant must know that the item was a firearm.*
Jury Instruction
* “Intentionally,” as defined in § 939.23(3), requires knowledge of those facts necessary to make the conduct criminal and which appear after the word “intentionally” in the statute. Also see Wis JI-Criminal 923A and 923B regarding definition of the word “intentionally.” In the context of this offense, the essence of the intent element appeared to the Committee to be knowledge that the item introduced was a firearm.
§ 946.46 Encouraging a violation of probation, extended supervision or parole
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a person who intentionally aided or encouraged a parolee, probationer, person on extended supervision, or any person committed to the custody or supervision of the Department of Corrections or a county department under s. 46.215, 46.22, or 46.23 by reason of crime or delinquency to abscond or violate a term or condition of their parole, extended supervision, or probation.
Elements of the Offense
- Intentional Act: The defendant must intentionally aid or encourage another person.
- Targeted Person: The person being aided or encouraged must be:
- Resulting Action: The aid or encouragement must be for the purpose of causing the targeted person to:
- Abscond, or
- Violate a term or condition of their parole, extended supervision, or probation.
- Knowledge: The defendant must know that the person is on supervision and must know that the person is required to make themselves available as directed or that the term was a condition of supervision.*
Jury Instruction
* Including the separate knowledge requirement is based on the conclusion that the use of “intentionally” in the statute requires “knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word ‘intentionally.’” § 939.23(3).
§ 946.47(1)(a) Aiding a felon
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a person who, with the intent to prevent the apprehension of a felon, harbored or aided the felon.
Elements of the Offense
- Intent: The defendant must have the intent to prevent the apprehension of a felon.
- Action: The defendant must harbor or aid the felon.
- Knowledge: The defendant knew that the person had engaged in conduct which constitutes a felony.*
Jury Instruction
* In State v. Jones, 98 Wis.2d 679, 681, 298 N.W.2d 100 (Ct. App. 1988), the court held that a required element of this offense is that “the accused had actual knowledge” of the offense committed by the person aided. This element does not require that the defendant know the precise name of the felony committed or know that the conduct engaged in by the person aided is a felony. It does require that the defendant know what conduct was engaged in by the person aided. That conduct must constitute a felony under the law of Wisconsin. “This section requires that the actor (1) intend to prevent the apprehension of a person he knows has committed a crime which in fact constitutes a felony. . . .” 1953 Judiciary Committee Report on the Criminal Code, p. 195 (Wis. Legislative Council).
In State v. Schmidt, 221 Wis.2d 189, 198, 585 N.W.2d 16 (Ct. App. 1998), the court held that § 946.47 could be applied to a person who aided a convicted felon who was wanted for a parole violation. See Comment preceding note 1. For a case like Schmidt, the elements of the crime need not be summarized, since it is likely the state will simply introduce documentary proof that the person had been convicted of a felony and was on parole on a sentence for the conviction.
§ 946.47(1)(b) Aiding a felon by destroying, etc., physical evidence
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a person who, with the intent to prevent the apprehension, prosecution, or conviction of a felon, destroyed, altered, hid, or disguised physical evidence, or placed false evidence.
Elements of the Offense
- Action: The defendant must do any of the following:
- Destroy physical evidence,
- Alter physical evidence,
- Hide physical evidence,
- Disguise physical evidence,
- Place false evidence.
- Intent: The defendant must have the intent to prevent the apprehension, prosecution, or conviction of a felon.
- Knowledge: The defendant must know the person is a felon.*
Jury Instruction
* In State v. Jones, the court held that a required element of this offense is that “the accused had actual knowledge” of the offense committed by the person aided. 98 Wis.2d at 681. It is not required that the defendant know the precise name of the felony committed or know that the conduct engaged in by the person aided is a felony. It does require that the defendant know what conduct was engaged in by the person aided. That conduct must constitute a felony under the law of Wisconsin. “This section requires that the actor (1) intend to prevent the apprehension of a person he knows has committed a crime which in fact constitutes a felony. . . .” 1953 Judiciary Committee Report on the Criminal Code, p. 195 (Wis. Legislative Council).
§ 946.49(1) Bail jumping
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a person who had been released from custody under Chapter 969 and that the defendant intentionally failed to comply with the terms of their bond.
Elements of the Offense
- Person: The defendant must be a person who has been released from custody.
- Custody Release: The release from custody must be under Chapter 969.
- Intentional Act: The defendant must intentionally fail to comply with the terms of their bond.
- Knowledge: The defendant must know of the terms of the bond and know that their actions did not comply with those terms.*
Jury Instruction
* Section 939.23(3) provides that the word “intentionally” means that the actor must have had the purpose to cause the result specified or be aware that his or her act is practically certain to have that result and that the actor have knowledge of those facts necessary to make his or her conduct criminal and which are set forth after the word “intentionally.” See § 939.23(3) and Wis JI-Criminal 923A and 923B.
§ 946.64 Communicating with a juror
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a person who, with the intent to influence a person summoned or serving as a juror, in relation to any matter which is before that juror or which may be brought before that juror, communicated with the juror otherwise than in the regular course of proceedings in the trial or hearing of that matter.
Elements of the Offense
- Intent: The defendant must have the intent to influence a person summoned or serving as a juror.
- Targeted Juror: The person must be summoned or serving as a juror.
- Relation to Matter: The communication must be in relation to any matter which is before the juror or which may be brought before the juror.
- Method of Communication: The communication must occur otherwise than in the regular course of proceedings in the trial or hearing of that matter.
Jury Instruction
§ 946.645 Picketing, parading, or demonstrating at the residence of a judge
Summary
To be guilty of this offense, the prosecution must prove that the defendant engaged in picketing, parading, or demonstrating at or near a judge’s residence with the specific intent to interfere with the administration of justice or to influence the judge in their official duties.
Elements of the Offense
- Conduct: The defendant must have picketed, paraded, or demonstrated.
- Location: The conduct must have occurred at or near a residence occupied or used by a judge.
- Intent: The defendant must have acted with the intent to interfere with, obstruct, or impede the administration of justice or with the intent to influence any judge in the discharge of their duty.
Jury Instruction
§ 946.65 Obstructing justice
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a person who, for a consideration, knowingly gave false information to an officer of any court with the intent to influence the officer in the performance of their official functions.
Elements of the Offense
- Action: The defendant must knowingly give false information to an officer of any court.
- Intent: The defendant must have the intent to influence an officer of any court in the performance of their official functions.
- Consideration: The defendant must act for a consideration (something of value exchanged).
Jury Instruction
§ 946.68(1r)(a) Simulating a legal process
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a person who sent or delivered to another any document which simulates legal process.
Elements of the Offense
- Action: The defendant must send or deliver a document to another person.
- Nature of the Document: The document must simulate legal process.
Jury Instruction
§ 946.70(1) Impersonating a peace officer, fire fighter, or other emergency personnel
Summary
To be guilty of this offense, the prosecution must prove that the defendant impersonated a peace officer, fire fighter, emergency medical services practitioner, or emergency medical responder with the intent to mislead others into believing that they were actually a peace officer, fire fighter, emergency medical services practitioner, or emergency medical responder.
To be guilty of the enhanced offense under statute subsection (2), the prosecution must prove that the defendant impersonated one of the roles listed above with the intent to commit or aid or abet the commission of a crime other than the crime of impersonation under this section.
Elements of the Offense
- Impersonation: The defendant must impersonate one of the following:
- A peace officer.
- A fire fighter.
- An emergency medical services practitioner, as defined in s. 256.01(5).
- An emergency medical responder, as defined in s. 256.01(4p).
- Intent: The defendant must have the intent to mislead others into believing that they are actually:
- A peace officer.
- A fire fighter.
- An emergency medical services practitioner.
- An emergency medical responder.
Enhanced Penalty for Intent to Commit a Crime:
- Intent: The defendant must have the intent to commit or aid or abet the commission of a crime other than the crime of impersonation under this section.
Jury Instruction
Wis JI-Criminal 1830
Wis JI-Criminal 1831
§ 946.83(1) Racketeering activity: using proceeds of a pattern of racketeering activity to establish or operate an enterprise
Summary
To be guilty of this offense, the prosecution must prove that the defendant received proceeds with knowledge that they were derived, directly or indirectly, from a pattern of racketeering activity. The prosecution must also prove that the defendant used or invested, whether directly or indirectly, any part of the proceeds or the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right, interest, or equity in, real property, or in the establishment or operation of any enterprise.
Elements of the Offense
- Receipt of Proceeds: The defendant must have received proceeds.
- Knowledge of Origin: The defendant must have knowledge that the proceeds were derived, directly or indirectly, from a pattern of racketeering activity.
- Action: The defendant must use or invest, whether directly or indirectly, any part of the proceeds or the proceeds derived from the investment or use thereof.
- Purpose of Use or Investment: The use or investment must be for the acquisition of any title to, or any right, interest, or equity in, real property, or in the establishment or operation of any enterprise.
Jury Instruction
§ 946.83(2) Racketeering activity: acquiring or maintaining an interest in or control of an enterprise through a pattern of racketeering activity
Summary
To be guilty of this offense, the prosecution must prove that the defendant, through a pattern of racketeering activity, acquired or maintained, directly or indirectly, any interest in or control of any enterprise or real property.
Elements of the Offense
- Pattern of Racketeering Activity: The defendant must engage in a pattern of racketeering activity.
- Action: The defendant must acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property.
Jury Instruction
§ 946.83(3) Racketeering activity: conducting or participating in an enterprise through a pattern of racketeering activity
Summary
To be guilty of this offense, the prosecution must prove that the defendant was employed by or associated with an enterprise, and that the defendant conducted or participated, directly or indirectly, in the enterprise through a pattern of racketeering activity.
Elements of the Offense
- Employment or Association: The defendant must be employed by or associated with an enterprise.
- Action: The defendant must conduct or participate, directly or indirectly, in the enterprise.
- Pattern of Racketeering Activity: The conduct or participation must be through a pattern of racketeering activity.
Jury Instruction
§ 946.91(2)(a) Medical assistance fraud: making a false statement in an application for benefit or payment
Summary
To be guilty of this offense, the prosecution must prove that the defendant intentionally made or caused to be made any false statement or representation of a material fact in any application for any Medical Assistance benefit or payment.
Elements of the Offense
- Employment or Association: The defendant must be employed by or associated with an enterprise.
- Intentional Act: The defendant must intentionally make or cause to be made a false statement or representation of a material fact.
- Nature of Statement: The statement or representation must be false.
- Knowledge: The defendant must know that the statement or representation are false.*
- Context: The false statement or representation must be made in any application for any Medical Assistance benefit or payment.
Jury Instruction
* The recodification of former § 49.49 as § 946.91 substituted “intentionally” for “willfully,” clarifying the mental element required. When used in the Criminal Code, “intentionally” requires that the actor have the purpose to cause the result specified and “have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word ‘intentionally.’” Section 939.23(3). As applied to this offense, that requires that the defendant knew the statement or representation in the application was false.
§ 946.92(2)(a) Food stamp fraud: misstating facts on an application
Summary
To be guilty of this offense, the prosecution must prove that the defendant misstated or concealed facts in a food stamp program application or in a report of income, assets, or household circumstances, with the intent to secure or continue to receive food stamp program benefits.
Elements of the Offense
- Action: The defendant must misstate or conceal facts.
- Context: The misstatement or concealment must be in a food stamp program application or report of income, assets, or household circumstances.
- Intent: The defendant must have the intent to secure or continue to receive food stamp program benefits.
Jury Instruction
§ 946.93(2) Public assistance fraud: making a false statement in an application for public assistance
Summary
To be guilty of this offense, the prosecution must prove that the defendant intentionally made or caused to be made any false statement or representation of a material fact in any application for or receipt of public assistance.
Elements of the Offense
- Intentional Act: The defendant must intentionally make or cause to be made a false statement or representation of material fact.
- Nature of Statement: The statement or representation must be false.
- Context: The false statement or representation must be made in any application for or receipt of public assistance.
- Knowledge: The defendant must know that the statement or representation of material fact were false when made.*
Jury Instruction
* The recreation of former § 49.95 as § 946.93 substituted “intentionally” for “willfully,” clarifying the mental element required. When used in the Criminal Code, “intentionally” requires that the actor have the purpose to cause the result specified and “have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word ‘intentionally.’” Section 939.23(3). As applied to this offense, that requires that the defendant knew the statement or representation in the application was false.
§ 946.93(3)(a) Public assistance fraud: concealing or failing to disclose an event affecting eligibility
Summary
To be guilty of this offense, the prosecution must prove that the defendant was a person who, having knowledge of an event affecting the initial or continued eligibility for public assistance, concealed or failed to disclose that event with the intent to fraudulently secure public assistance. This includes securing payment either in a greater amount or quantity than is due, or securing payment when no such benefit or payment is authorized.
Elements of the Offense
- Knowledge: The defendant must have knowledge of an event affecting the initial or continued eligibility for public assistance.
- Action: The defendant must conceal or fail to disclose that event.
- Intent: The defendant must have the intent to fraudulently secure public assistance, including:
- Payment in a greater amount or quantity than is due, or
- Payment when no such benefit or payment is authorized.
Jury Instruction
Updated January 2025