In State v. Lesik, 2010 WI App 12 (Wis. Ct. App. 2009) Lesik argued that his theory of defense – that any touching or penetration was for a proper medical purpose – was not adequately conveyed by the standard jury instruction. Both the jury instruction and the statute required proof of a sexual intent for sexual contact, but not for sexual intercourse. Lesik contended the absence of an intent element for sexual intercourse would criminalize medically appropriate conduct, including the slight, accidental vaginal intrusions he testified occurred while cleaning and medicating the alleged victim.
Therefore, the defense submitted the following instruction to the jury: The defendant is charged with Sexual Intercourse with a Child. This allegation is premised on [the alleged victim’s] assertion that the tip of Mr. Lesik's finger penetrated her vagina. It is the defendant's theory in this case that he shared the responsibilities for treating [the alleged victim’s] incontinence problem. As such, any touching of her vagina or other private areas was strictly within the context of identifying or treating this condition. If as members of the jury you find that the defendant's conduct constituted "sexual intercourse" you must also consider whether this conduct was in the context of treating [the alleged victim’s] condition. If you so find, you must find the defendant not guilty.
The circuit court agreed a supplemental instruction was necessary for Lesik to present his defense, observing: "The way the form instruction and indeed the statute is written there is no defense, and there is no definitional division that would protect a physician properly examining a child's genital or anal opening, nor a parent properly caring for, or treating a child [for health problems]." The court therefore added the following sentence to the standard jury instruction: “‘Sexual intercourse’ does not include such an intrusion for a proper non-sexual purpose, such as a medical examination or appropriate child care or treatment.”
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Chapter 252: Defense Theories Based On Lack Of Criminal Intent
