Date of enactment: December 6, 2023
2023 Senate Bill 166 Date of publication*: December 7, 2023
2023 WISCONSIN ACT 47
AN ACT to repeal 322.001 (16) and 322.120 (1) (a); to renumber and amend 322.120 (3) (b); to amend 322.001
(15), 322.036, 322.056 (2), 322.056 (5), 322.120 (3) (a) (intro.) and 322.133; and to create 321.04 (1) (sm), 321.04
(1) (t), 322.0935, 322.120 (3) (b) 1., 322.1325 and 322.1345 of the statutes; relating to: punitive articles in the Wis-
consin Code of Military Justice prohibiting certain activities; procedures applicable to courts−martial cases under
the Wisconsin Code of Military Justice; treatment of victims of an offense under the Wisconsin Code of Military Jus-
tice; defining military offenses under the Wisconsin Code of Military Justice; punishments for violations of the Wis-
consin Code of Military Justice; and the removal of gender−specific language from the Wisconsin Code of Military
Justice.
The people of the state of Wisconsin, represented in
senate and assembly, do enact as follows:
JOINT LEGISLATIVE COUNCIL PREFATORY NOTE: This bill
was prepared for the Joint Legislative Council Study Commit-
tee on Wisconsin National Guard Sexual Misconduct Proce-
dures. Under current law, members of the Wisconsin National
Guard on state status are subject to the Wisconsin Code of Mil-
itary Justice (WCMJ), which codifies offenses that may be
punished under the code and establishes procedures for
enforcing the code. If on federal status, National Guard mem-
bers are subject instead to the federal Uniform Code of Mili-
tary Justice (UCMJ).
The bill makes a number of changes to the WCMJ.
Specifically, the bill clarifies the offenses over which courts−
martial have primary jurisdiction; specifies the limits of pun-
ishment under the WCMJ; directs the Adjutant General to pre-
scribe rules of procedure for courts−martial arising under the
WCMJ; codifies offenses related to retaliation, sexual harass-
ment, and engaging in prohibited sexual activity with a recruit
or trainee to reflect the inclusion of those offenses in the
UCMJ; modifies the elements of sexual assault to reflect
changes to the elements of that offense under the UCMJ; and
removes certain gender−specific language from the WCMJ.
The bill also requires the Adjutant General to prescribe and
implement a policy that ensures that any victim of an offense
under the WCMJ is treated with dignity, respect, courtesy,
sensitivity, and fairness.
Jurisdiction of Courts−Martial
Under the WCMJ, courts−martial have primary jurisdic-
tion of military offenses, while civilian criminal courts have
primary jurisdiction of nonmilitary offenses when an act or
omission violates both the WCMJ and civilian criminal law.
When a civilian court has primary jurisdiction over an
offense, the National Guard may initiate a court−martial pro-
ceeding only after the civilian authority has declined to prose-
cute or dismissed the charge, provided that jeopardy has not
attached. The National Guard may, however, take administra-
tive disciplinary actions against a person for violating an
offense over which a civilian court has primary jurisdiction
regardless of whether the civilian authority prosecutes the
offense.
The WCMJ defines “military offense” by enumerating
the offenses that satisfy this definition. It defines “nonmilitary
offenses” as offenses that are in the state’s civilian penal
statute and are not offenses under the WCMJ. Under current
law, the definition of “military offense” includes several
offenses that are offenses under both the WCMJ and civilian
criminal law, which appears to give courts−martial, rather
than civilian criminal courts, primary jurisdiction over those
offenses. The bill clarifies that civilian authorities have pri-
mary jurisdiction over the offenses of rape and sexual assault;
* Section 991.11, WISCONSIN STATUTES: Effective date of acts. “Every act and every portion of an act enacted by the legislature over the governor’s
partial veto which does not expressly prescribe the time when it takes effect shall take effect on the day after its date of publication.” − 2 −2023 Wisconsin Act 47 2023 Senate Bill 166
stalking; rape and sexual assault of a child; sexual miscon-
duct; larceny and wrongful appropriation; robbery; forgery;
maiming; arson; extortion; assault; burglary; housebreaking;
and perjury.
Rules of Procedure
Under current law, the Governor may prescribe pretrial,
trial, and post−trial procedures, including modes of proof, for
courts−martial cases arising under the WCMJ. These proce-
dures shall apply the principles of law and the rules of evi-
dence generally recognized in military criminal cases in the
courts of the armed forces but which may not be contrary to
or inconsistent with the WCMJ. The bill modifies this provi-
sion to require the Adjutant General to prescribe pretrial, trial,
and post−trial procedures for courts−martial cases arising
under the WCMJ in writing and make these procedures pub-
licly available on the department’s website.
Limits of Punishment
Under current law, the limits of punishment for violating
an offense under the WCMJ shall be prescribed by the Gover-
nor, but may not exceed ten years of confinement or constitute
cruel or unusual punishment. This bill adopts, by incorpora-
tion, the limits of punishment under the UCMJ, unless the
Governor prescribes other limits. These limits still may not
exceed ten years of confinement or constitute cruel or unusual
punishment.
Prohibited Activities with a Military Recruit or Trainee
by a Person in a Position of Trust
The bill creates a punitive article that prohibits an officer,
noncommissioned officer, or petty officer who is in a training
leadership position from engaging in a prohibited sexual
activity with a specially protected junior member of the armed
forces. It also prohibits a military recruiter from engaging in
prohibited sexual activity with an applicant for military ser-
vice or a specially protected junior member of the state mili-
tary forces who is enlisted under a delayed entry program.
This article parallels an article incorporated into the UCMJ.
Under the bill, prohibited sexual activity means any sex-
ual act or sexual contact or any attempt or solicitation to com-
mit a sexual act or sexual contact. A specially protected junior
member of the armed forces is a member of the state military
forces who is of the following: (1) assigned to or awaiting
assignment to basic training or other initial active duty for
training; (2) a cadet, midshipman, an officer candidate, or stu-
dent in any other officer qualification program; or (3) in any
program that, by regulation of the secretary of the army or air
force, is identified as a training program for initial career qual-
ification. Consent is not a defense for any conduct at issue.
Sexual Assault
The bill prohibits committing a nonconsensual sexual act
or sexual contact against another person and makes changes
to the elements of sexual assault to match recent changes to
the UCMJ.
Under current law, a person is guilty of sexual assault
under the WCMJ if he or she commits a sexual act upon
another person under a variety of different types of circum-
stances. One way the elements of sexual assault are satisfied
under the WCMJ is if a person commits a sexual assault upon
another person without the other person’s consent by doing
any of the following: (a) threatening or placing that other per-
son in fear; (b) causing bodily harm to that other person; (c)
making a fraudulent representation that the sexual act serves
a professional purpose; or (d) inducing a belief by any artifice,
pretense, or concealment that the person is another person.
Another way the elements of sexual assault are satisfied is if
a person commits a sexual act upon another person when the
person knows or reasonably should know that the other person
is asleep, unconscious, or otherwise unaware that the sexual
act is occurring. A third way the elements of sexual assault are
satisfied is if a person commits a sexual act upon another per-
son who is incapable of consenting for various specified rea-
sons.
The bill modifies the elements of sexual assault under the
WCMJ to align with the elements of the offense under the
UCMJ. Specifically, with respect to a sexual assault that
occurs when a person commits a sexual act upon another per-
son by doing certain enumerated acts, such as by threatening
or placing the other person in fear, the bill removes the issue
of consent from the offense and removes from the list of other
actions “causing bodily harm to that other person,” consistent
with the UCMJ. The bill also provides that, as under the
UCMJ, a person is guilty of sexual assault if he or she commits
a sexual act upon another person without the consent of the
other person.
Under current law, a person who commits or causes sex-
ual contact on another person, under circumstances that
would violate the offense of sexual assault had the contact
instead been a sexual act, is guilty of abusive sexual contact
under the WCMJ. The changes the bill makes to the elements
of sexual assault, therefore, also apply to the offense of abu-
sive sexual contact.
Retaliation
The bill prohibits wrongfully taking or threatening to take
an adverse personnel action against any person or wrongfully
withholding or threatening to withhold a favorable personnel
action with respect to any person, if done with intent to do any
of the following: (1) retaliate against any person for reporting
or planning to report a criminal or military offense; (2) retali-
ate against any person for making or planning to make a pro-
tected communication; or (3) discourage any person from
reporting a criminal or military offense or making a protected
communication.
Under the bill, a communication qualifies as a protected
communication under two circumstances. The first is if it is a
lawful communication to a member of Congress, member of
the Wisconsin Legislature, the Governor, or an inspector gen-
eral. The second is if it satisfies both of the following condi-
tions: (1) the communication is to a member of the U.S.
Department of Defense, a member of the National Guard
Bureau, a law enforcement officer, a state agency, a legislative
service agency, a person in the chain of command, or a court−
martial proceeding; and (2) in the communication a member
of the state military forces complains of, or discloses evidence
that, the person reasonably believes constitutes evidence of,
a violation of a law or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety.
Sexual Harassment
The bill creates a punitive article in the WCMJ that pro-
hibits sexual harassment and parallels an article recently
incorporated into the UCMJ. Under the bill, any person who
either knowingly makes an unwelcome sexual advance,
demand, or request for a sexual favor or knowingly engages
in other unwelcome conduct of a sexual nature is guilty of sex-
ual harassment, if the conduct meets two conditions.
First, the sexual advance, demand, request, or conduct of
a sexual nature must do either of the following:
(a) Under the circumstances, cause a reasonable person
to believe, and actually cause at least one person to believe,
that submission to or rejection would be made, either explic-
itly or implicitly, a term or condition of that person’s job, pay,
career, benefits, or entitlements or would be used as a basis for
decisions affecting that person’s job, pay, career, benefits, or
entitlements.
(b) Be so severe, repetitive, or pervasive that a reasonable
person would perceive, and at least one person actually per-
ceived, an intimidating, hostile, or offensive working envi-
ronment. − 3 − 2023 Wisconsin Act 47 2023 Senate Bill 166
Second, the sexual advance, demand, request, or conduct
of a sexual nature must be to the prejudice of good order and
discipline in the state military forces or of a nature to bring dis-
credit upon the state military forces, or both.
Conduct Unbecoming an Officer
Article 133 of the WCMJ prohibits any commissioned
officer, cadet, candidate, or midshipman from engaging in
conduct unbecoming of an officer and a gentleman. The bill
removes the language referring to “and a gentleman” to paral-
lel a similar modification to the UCMJ to remove gender−spe-
cific language.
Policy on Treatment of Victims
The Wisconsin Constitution and Wisconsin Statutes
grant crime victims a variety of rights, including the right to
be treated with dignity, respect, courtesy, sensitivity, and fair-
ness. For these purposes, “crime victim” is defined, generally,
as a person against whom a crime has been committed. A vic-
tim of an offense under the WCMJ may satisfy this definition
of crime victim under some, but not all, circumstances.
The bill requires the Adjutant General to prescribe in
writing, publish on the department’s website, and implement
a policy that ensures that any victim of an offense under the
WCMJ is treated with dignity, respect, courtesy, sensitivity,
and fairness.
SECTION 1. 321.04 (1) (sm) of the statutes is created
to read:
321.04 (1) (sm) Prescribe in writing and make pub-
licly available on the department’s website the proce-
dures required under s. 322.036.
SECTION 2. 321.04 (1) (t) of the statutes is created to
read:
321.04 (1) (t) Prescribe in writing, make publicly
available on the department’s website, and implement a
policy that ensures that any victim of an offense under the
Wisconsin code of military justice is treated with dignity,
respect, courtesy, sensitivity, and fairness.
SECTION 3. 322.001 (15) of the statutes is amended
to read:
322.001 (15) “Military offenses” means those
offenses prescribed under articles 77, principals; 78,
accessory after the fact; 80, attempts; 81, conspiracy; 82,
solicitation; 83, fraudulent enlistment, appointment, or
separation; 84, unlawful enlistment, appointment, or sep-
aration; 85, desertion; 86, absence without leave; 87,
missing movement; 88, contempt toward officials; 89,
disrespect towards superior commissioned officer; 90,
assaulting or willfully disobeying superior commis-
sioned officer; 91, insubordinate conduct toward warrant
officer, noncommissioned officer, or petty officer; 92,
failure to obey order or regulation; 93, cruelty and mal-
treatment; 93a, prohibited activities with military recruit
or trainee by a person in a position of special trust; 94,
mutiny or sedition; 95, resistance, flight, breach of arrest,
and escape; 96, releasing prisoner without proper author-
ity; 97, unlawful detention; 98, noncompliance with pro-
cedural rules; 99, misbehavior before the enemy; 100,
subordinate compelling surrender; 101, improper use of
countersign; 102, forcing a safeguard; 103, captured or
abandoned property; 104, aiding the enemy; 105, mis-
conduct as prisoner; 107, false official statements; 108,
military property — loss, damage, destruction, or
wrongful disposition; 109, property other than military
property — waste, spoilage, or destruction; 110,
improper hazarding of vessel; 111, drunken or reckless
operation of a vehicle, aircraft, or vessel; 112, drunk on
duty; 112a, wrongful use, or possession of controlled
substances; 113, misbehavior of sentinel; 114, dueling;
115, malingering; 116, riot or breach of peace; 117, pro-
voking speeches or gestures; 120, rape and sexual assault
generally; 120a, stalking; 120b, rape and sexual assault
of a child; 120c, sexual misconduct; 121, larceny and
wrongful appropriation; 122, robbery; 123, forgery; 124,
maiming; 126, arson; 127, extortion; 128, assault; 129,
burglary; 130, housebreaking; 131, perjury; 132, frauds
against the government; 132a, retaliation; 133, conduct
unbecoming an officer and a gentleman; and; 134, gen-
eral; and 134h, sexual harassment; of this code.
SECTION 4. 322.001 (16) of the statutes is repealed.
SECTION 5. 322.036 of the statutes is amended to
read:
322.036 Article 36 — Governor may prescribe
regulations Pretrial, trial, and post−trial procedures.
Pretrial, trial, and post−trial procedures not specified in
this code, including modes of proof, for courts−martial
cases arising under this code, and for courts of inquiry,
may shall be prescribed by the governor by regulations,
or as otherwise provided by law, which shall apply the
principles of law and the rules of evidence generally rec-
ognized in military criminal cases in the courts of the
armed forces but which may not be contrary to or incon-
sistent with this code adjutant general in writing and
made publicly available on the department of military
affairs’ website.
SECTION 6. 322.056 (2) of the statutes is amended to
read:
322.056 (2) A conviction by a general court−martial
of any military offense for which an accused may receive
a sentence of confinement for more than 1 year is a felony
offense.
SECTION 7. 322.056 (5) of the statutes is amended to
read:
322.056 (5) The limits of punishment for violations
of the punitive sections under Subch. X shall be those
under the Uniform Code of Military Justice, unless other-
wise prescribed by the governor according to ss. 322.018
to 322.020, but under no instance shall any punishment
exceed that authorized by this code.
SECTION 8. 322.0935 of the statutes is created to read:
322.0935 Article 93a − Prohibited activities with
military recruit or trainee by a person in a position of
special trust. (1) In this section:
(a) “Applicant for military service” means a person
who, under regulations prescribed by the secretary of the
relevant military branch, is an applicant for original
enlistment or appointment in the state military forces. − 4 −2023 Wisconsin Act 47 2023 Senate Bill 166
(b) “Military recruiter” means a person who, under
regulations prescribed by the secretary of the relevant
military branch, has the primary duty to recruit persons
for military service.
(c) “Prohibited sexual activity” means any sexual act,
as defined in s. 322.120 (1) (e), or any sexual contact, as
defined in s. 322.120 (1) (f), or any attempt or solicitation
to commit a sexual act or sexual contact.
(d) “Specially protected junior member of the state
military forces” means any of the following:
1. A member of the state military forces who is
assigned to, or is awaiting assignment to, basic training
or other initial active duty for training, including a mem-
ber who is enlisted under a delayed entry program.
2. A member of the state military forces who is a
cadet, candidate, or midshipman, or a student in any other
officer qualification program.
3. A member of the state military forces in any pro-
gram that, by regulation prescribed by the secretary of the
relevant military branch, is identified as a training pro-
gram for initial career qualification.
(e) “Training leadership position” means, with
respect to a specially protected junior member of the state
military forces, any drill instructor position or other lead-
ership position in a basic training program, an officer
candidate school, a reserve officers’ training corps unit,
a training program for entry into the state military forces,
or any program that, by regulation prescribed by the sec-
retary of the relevant military branch, is identified as a
training program for initial career qualification.
(2) Any officer, noncommissioned officer, or petty
officer who is in a training leadership position and
engages in prohibited sexual activity with a specially pro-
tected junior member of the state military forces shall be
punished as a court−martial may direct.
(3) Any person who is a military recruiter and
engages in prohibited sexual activity with an applicant
for military service or a specially protected junior mem-
ber of the state military forces who is enlisted under a
delayed entry program shall be punished as a court−mar-
tial may direct.
(4) Consent is not a defense for any conduct at issue
in a prosecution under this section.
SECTION 9. 322.120 (1) (a) of the statutes is repealed.
SECTION 10. 322.120 (3) (a) (intro.) of the statutes is
amended to read:
322.120 (3) (a) (intro.) Commits a sexual act upon
another person without consent by doing any of the fol-
lowing:
SECTION 11. 322.120 (3) (b) of the statutes is renum-
bered 322.120 (3) (b) (intro.) and amended to read:
322.120 (3) (b) (intro.) Commits a sexual act upon
another person when under one of the following circum-
stances:
2. When the person knows or reasonably should
know that the other person is asleep, unconscious, or oth-
erwise unaware that the sexual act is occurring.
SECTION 12. 322.120 (3) (b) 1. of the statutes is cre-
ated to read:
322.120 (3) (b) 1. Without the consent of the other
person.
SECTION 13. 322.1325 of the statutes is created to
read:
322.1325 Article 132a − Retaliation. (1) In this sec-
tion:
(a) “Protected communication” means any of the fol-
lowing:
1. A lawful communication to a member of Con-
gress, a member of the Wisconsin legislature, the gover-
nor, or an inspector general.
2. A communication to a member of the U.S. depart-
ment of defense or the U.S. national guard bureau, a law
enforcement officer, a state agency, a legislative service
agency, a person in the chain of command, or a court−
martial proceeding in which a member of the state mili-
tary forces complains of, or discloses information that the
member reasonably believes constitutes evidence of, a
violation of a law or regulation, including a law or regula-
tion prohibiting sexual harassment or unlawful discrimi-
nation, or gross mismanagement, a gross waste of funds,
an abuse of authority, or a substantial and specific danger
to public health or safety.
(b) “Unlawful discrimination” means discrimination
on the basis of race, color, religion, sex, or national ori-
gin.
(2) Any person who, with intent to retaliate against
any person for reporting or planning to report a criminal
or military offense or for making or planning to make a
protected communication, or with intent to discourage
any person from reporting a criminal or military offense
or making a protected communication, does any of the
following shall be punished as a court−martial may
direct:
(a) Wrongfully takes or threatens to take an adverse
personnel action against any person.
(b) Wrongfully withholds or threatens to withhold a
favorable personnel action with respect to any person.
SECTION 14. 322.133 of the statutes is amended to
read:
322.133 Article 133 — Conduct unbecoming an
officer and a gentleman. Any commissioned officer,
cadet, candidate, or midshipman who is convicted of con-
duct unbecoming an officer and a gentleman shall be pun-
ished as a court−martial may direct.
SECTION 15. 322.1345 of the statutes is created to
read:
322.1345 Article 134h − Sexual harassment. Any
person who knowingly makes an unwelcome sexual − 5 − 2023 Wisconsin Act 47 2023 Senate Bill 166
advance, demand, or request for a sexual favor or know-
ingly engages in other unwelcome conduct of a sexual
nature shall be punished as a court−martial may direct if
all of the following apply:
(1) The sexual advance, demand, request, or conduct
of a sexual nature satisfies any of the following condi-
tions:
(a) It would, under the circumstances, cause a reason-
able person to believe, and at least one person did believe,
that submission to or rejection of such an advance,
demand, request, or conduct would be made, either
explicitly or implicitly, a term or condition of that per-
son’s job, pay, career, benefits, or entitlements or would
be used as a basis for decisions affecting that person’s job,
pay, career, benefits, or entitlements.
(b) It was so severe, repetitive, or pervasive that a rea-
sonable person would perceive, and at least one person
did perceive, an intimidating, hostile, or offensive work-
ing environment.
(2) The sexual advance, demand, request, or conduct
of a sexual nature was to the prejudice of good order and
discipline in the state military forces or of a nature to
bring discredit upon the state military forces, or both.