Sexual Abuse

Before discussing the definition of sexual abuse and the reporting requirements for sexual abuse, it is important to note that in facilities primarily used for the confinement of youth pursuant to the juvenile justice system, in addition to state mandated reporting, staff must comply with federal law and regulations under the Prison Rape Elimination Act (PREA). This Mandated Reporter Training does not cover PREA requirements.

What is important to keep in mind for the purpose of state mandated reporting is that mandated reporting of suspected sexual abuse to CPS or law enforcement is a separate requirement from PREA requirements. Therefore, complying with your facility’s PREA reporting requirements is generally not sufficient to meet state law requiring mandated reporting. If you are a mandated reporter and you suspect that a youth has been sexually abused, you must also make a report to CPS or law enforcement as outlined in this training.

Youth who are 15 years old or younger, under Wisconsin law, are never considered to consent to sexual contact or sexual intercourse. In addition, as we will discuss further below in the Abuse that Occurs in a Facility section, for the purpose of mandated reporting you should not consider youth who are in a facility to have consented to sexual acts. This is because youth in a facility are under the care and control of facility staff and are often restricted in their freedom of movement and in who they interact with. Because of this, when they engage in a sexual act, even with another youth, we cannot assume that they consented, even if they say that they did.

Sexual contact primarily is intentional touching, either directly or over the clothing, of a child’s intimate body parts, for the purpose of sexually gratifying or arousing oneself or sexually degrading or humiliating the child.

The act of touching a youth’s genital area is not, by itself, sexual abuse. For example, a health care professional may provide care for the child’s genital or anal area for any number of medical problems and this should not be confused with sexual abuse.

Child sex trafficking is defined as a crime committed by anyone (i.e., the person does not have to be the child’s parent or caregiver) who knowingly recruits, entices, provides, obtains, harbors, transports, patronizes, or solicits or knowingly attempts to recruit, entice, provide, obtain, harbor, transport, patronize, or solicit any child or youth for the purpose of commercial sex acts.

According to the statutes, a commercial sex act means any of the following for which anything of value is given, promised, or received, directly or indirectly, by any person:

• Sexual contact
• Sexual intercourse
• Sexually explicit performance
• Any other conduct done for the purpose of sexual humiliation, degradation, arousal or gratification

Legally, consent is not a consideration for child sex trafficking and a child or youth is unable to give consent to any commercial sex act. While the definition of sex trafficking for adults includes the existence of force, fraud, or coercion, the definition of child sex trafficking does not. The definition of child sex trafficking implicitly recognizes that children and youth are more vulnerable to manipulation than adults. Consequently, even if a homeless youth runaway would say that he “consented” to having sex with the man who gave him food and shelter, and there is no evidence of force, fraud, or coercion, this is still an instance of child sex trafficking because the child or youth is a minor.

Sexual exploitation of a youth includes:

• employing, using, persuading or coercing a child to engage in sexually explicit behavior for the purpose of photographing, filming or recording in any way that behavior; or
• profiting, importing into Wisconsin, reproducing, advertising, selling, distributing or possessing with an intent to sell or distribute such photographs, films, or recordings of that behavior; or
• a person responsible for the child’s welfare knowingly permitting or encouraging the child to engage in sexually explicit conduct for the above purposes

The statutes define this as actual or simulated intercourse, bestiality, masturbation, sexual sadism or masochism, or lewd exhibition of intimate body parts.

The obligation to report sexual abuse involves different considerations when the alleged abuse takes place in a facility versus when it takes place prior to a youth’s entry into a facility.

Therefore, this section is split into two parts: the first addresses mandated reporting of abuse that occurs in a facility and the second addresses mandated reporting of abuse that is disclosed while a youth is at a facility but that occurred prior to being at the facility.

As in physical abuse, sexual abuse can be committed by any other person – a parent, a relative, facility staff, counselors, or visitors.

Sexual abuse can even be committed by another youth. As discussed above, youth in a correctional or detention facility cannot be assumed to have consented to sexual contact or intercourse, for the purpose of mandated reporting, and therefore all sexual contact or intercourse between youths in these facilities – and any of the activities that we just discussed – must be reported under the mandated reporting law, regardless of the youths’ age(s) and whether the activity is reported to be consensual.

A county agency receiving a report of sexual contact or intercourse between two youths in a facility may also look at whether the facility should be investigated for neglect for failing to supervise the youth.  

At the onset, it is important to understand that unlike in a non-facility setting where a mandated reporter may not have to report under certain circumstances because the youth says that she or he consented to sexual contact or intercourse, for the purpose of mandated reporting you should not assume that a youth in a facility setting ever consents to sexual activity, even if the youth says that he or she did. As discussed earlier, youth placed in facilities are especially vulnerable to the adults who care for, oversee or provide services to them and they often do not have control over their day-to-day lives or the people who they interact with.

Therefore, all sexual contact or sexual intercourse between two youth under the age of 18 or between a youth under the age of 18 and an adult in a facility should be reported by mandated reporters as suspected sexual abuse.

You also have an obligation to make a report if you suspect or become aware that any of the following activities may have occurred (remember that the perpetrator of this conduct may be an adult or may be another youth – even if it is a youth who is perpetrating the conduct, it is still considered sexual abuse):

• Sex trafficking
• Sexual exploitation of a youth
• Permitting or encouraging a youth to engage in prostitution
• Engaging in prostitution with a youth
• Intentionally causing a youth to view or listen to sexually explicit content for the purpose of sexually gratifying oneself or sexually humiliating the youth
• Exposing oneself to a youth or causing the youth to expose himself or herself for the purpose of sexually gratifying oneself or sexually humiliating the youth

For potential sexual abuse that occurred outside of a facility setting, different factors need to be considered.  If you learn of an incident that occurred prior to a youth’s entry into a facility that you think may need to be reported, you should ask yourself the following questions:

Do I suspect one of the following types of sexual abuse?

• Sexual intercourse or sexual contact with a youth that is defined as sexual abuse under Wisconsin statute, including but not limited to sexual intercourse or contact with a child by the following individuals (the bullets below provide a summary, for a full list refer to conduct defined as sexual abuse by Wisconsin Statute)
• The youth’s foster parent
• Any person who works at, or volunteers at, the placement or facility where the youth is placed in substitute care or receiving direct care or treatment services (this would include, but not be limited to, group homes, shelters, residential care centers, etc.)
• Any person who works at, or volunteers at, the juvenile correctional facility or detention center where the child is confined
• Child sex trafficking
• Sexual exploitation of a youth
• Permitting or encouraging a youth to engage in prostitution
• Exposing oneself or causing a youth to expose himself or herself for the purpose of sexually gratifying oneself or sexual humiliating the youth
• Intentionally causing a youth to view or listen to sexually explicit conduct for the purpose of sexually gratifying oneself or sexually humiliating the youth

If you suspect that one of these types of sexual abuse has occurred, you are required to report. There are no exceptions.

What is the age of the youth?

If the youth was 16 or 17 years old and was not living in a facility at the time of the sexual contact or intercourse, she or he consented to the sexual contact or intercourse, and you do not have any doubts about his or her capacity to consent, then you are not obligated under the law to make a report.  Consent must be freely and knowingly given. The law does not recognize a person’s consent to sexual activity if that person is unable to judge the implications or ramifications because of mental illness, mental deficiency or intoxication.  If you have any doubts about the voluntariness of the sexual contact or intercourse, you are required to report.

If the youth was 15 years old or younger when he or she engaged in sexual contact or sexual intercourse with another individual, even another youth, sexual abuse has occurred. Consent is not a consideration in evaluating the need to report sexual contact or intercourse with a child under 15.

This is because for youth aged 15 or younger, the idea is that they have not developed enough cognitively, emotionally or socially to understand what they are consenting to, and are easily exploited and manipulated by older persons. Stipulating that they cannot legally consent means that the alleged maltreater cannot use consent as a defense in court.

Consent must be freely and knowingly given. The law does not recognize a person’s consent to sexual activity if that person is unable to judge the implications or ramifications because of mental illness, mental deficiency, unconsciousness or intoxication or if a person is physically unable to communicate an unwillingness to act.

There is one exception to the reporting law for a subset of the youth of any age who consent to sexual contact or intercourse in a non-facility setting: the Health Services Exception.

This exception has to do with minors receiving certain confidential health care services. In a limited set of instances only, the law exempts certain people from reporting minors who are receiving such health services.

Click here to learn about this exception to the reporting requirement.