2022 Wisconsin Statutes & Annotations
Chapter 939 - Crimes — general provisions.
939.46 - Coercion.
939.46 Coercion.
(1) A threat by a person other than the actor's coconspirator which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor or another and which causes him or her so to act is a defense to a prosecution for any crime based on that act, except that if the prosecution is for first-degree intentional homicide, the degree of the crime is reduced to 2nd-degree intentional homicide.
(1m) A victim of a violation of s. 940.302 (2) or 948.051 has an affirmative defense for any offense committed as a direct result of the violation of s. 940.302 (2) or 948.051 without regard to whether anyone was prosecuted or convicted for the violation of s. 940.302 (2) or 948.051.
(2) It is no defense to a prosecution of a married person that the alleged crime was committed by command of the spouse nor is there any presumption of coercion when a crime is committed by a married person in the presence of the spouse.
(3) A petitioner under s. 813.12 or 813.122, or an individual whose parent, stepparent, or legal guardian filed a petition under s. 813.122 on behalf of the individual as a child victim, as defined in s. 813.122 (1) (c), has an affirmative defense for an offense under s. 175.35 (2e) that is punishable under s. 175.35 (3) (b) 2., or for an offense under s. 941.2905, if the person prohibited from possessing a firearm was the respondent in the action under s. 813.12 or 813.122.
History: 1975 c. 94; 1987 a. 399; 2007 a. 116; 2017 a. 145.
Judicial Council Note, 1988: Sub. (1) is amended by conforming references to the statute titles created by this bill. Since coercion mitigates first-degree intentional homicide to 2nd degree, it is obviously not a defense to prosecution for the latter crime. [Bill 191-S]
The state must disprove an asserted coercion defense beyond a reasonable doubt. Moes v. State, 91 Wis. 2d 756, 284 N.W.2d 66 (1979).
The coercion defense is limited to the most severe form of inducement. It requires finding that the actor believed the actor was threatened with immediate death or great bodily harm with no possible escape other than the commission of a criminal act. A defendant seeking a coercion defense instruction must meet the initial burden of producing evidence to support giving an instruction. That the defendant reasonably believed that a companion would attempt to harm him or her if he or she did not comply with the companion's orders only suggests that the safest course was to comply with companion's orders, not that it was the only course. State v. Keeran, 2004 WI App 4, 268 Wis. 2d 761, 674 N.W.2d 570, 01-1892.
In determining whether a jury should be instructed on whether the commission of a particular offense by a trafficking victim is a “direct result” of the violation of s. 940.302 (2) or 948.051, a court should consider whether there is some evidence to support such a finding based on whether the victim's offense arises relatively immediately from the trafficking violation of which the victim is a victim, is motivated primarily by the trafficking violation, is a logical and reasonably foreseeable consequence of that violation, and is not in significant part caused by events, circumstances, or considerations other than that violation. State v. Kizer, 2021 WI App 46, 398 Wis. 2d 697, 963 N.W.2d 136, 20-0192.
The legislature wrote sub. (1m) so as to provide an affirmative defense for any offense committed by a trafficking victim as a direct result of the violation of s. 940.302 (2) or 948.051, without including any language limiting the mitigation of a first-degree intentional homicide offense to a second-degree intentional homicide offense. The absence of such limiting language for the sub. (1m) affirmative defense compellingly indicates that the legislature did not intend to limit the trafficking affirmative defense in the way that it limited the affirmative defenses of sub. (1) and ss. 939.44 and 939.47. State v. Kizer, 2021 WI App 46, 398 Wis. 2d 697, 963 N.W.2d 136, 20-0192.
A Path to Protection: Collateral Crime Vacatur for Wisconsin's Victims of Sex Trafficking. Mullins. 2019 WLR 1551.
