(1) In this section: (b) 1. “Consent” means a freely given agreement to the conduct at issue by a competent person. 2. An expression of lack of consent through words or conduct means there is no consent. Submission or lack of oral or physical resistance, resulting from the use of force, threat of force, or placing another person in fear, does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent. A sleeping, unconscious, or incompetent person cannot consent. A person cannot consent to force causing or likely to cause death or grievous bodily harm or to being rendered unconscious. A person cannot consent while under threat or in fear. 3. Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent or whether a person did not resist or ceased to resist only because of another person’s actions. (c) “Force” means any of the following: 1. The use of a weapon. 2. The use of physical strength or violence that is likely to overcome, restrain, or injure a person. 3. Inflicting physical harm that is likely to coerce or compel submission by the victim. (d) “Grievous bodily harm” means serious bodily injury, including fractured or dislocated bones, deep cuts, torn members of the body, serious damage to internal organs, or other severe bodily injuries. “Grievous bodily harm” does not include minor injuries such as a black eye or a bloody nose. (e) “Sexual act” means any of the following: 1. Contact between the penis and the vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight. 2. The penetration, however slight, of the vulva or anus or mouth, of another by any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. (f) “Sexual contact” means any of the following: 1. Touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person. 2. Any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body. (g) “Threatening or placing that other person in fear” means a communication or action that is of sufficient consequence to cause a reasonable fear that noncompliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action. (h) “Unlawful force” means an act of force done without legal justification or excuse. (2) Any person subject to this chapter who commits a sexual act upon another person without consent by doing any of the following is guilty of rape and shall be punished as a court-martial may direct: (a) Using unlawful force against that other person. (b) Using force causing or likely to cause death or grievous bodily harm to any person. (c) Threatening or placing that other person in fear that any person will be subjected to death, grievous bodily harm, or kidnapping. (d) Rendering that other person unconscious. (e) Administering to that other person by force or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing the ability of that other person to appraise or control his or her conduct. (3) Any person subject to this chapter who does any of the following is guilty of sexual assault and shall be punished as a court-martial may direct: (a) Commits a sexual act upon another person by doing any of the following: 1. Threatening or placing that other person in fear. 3. Making a fraudulent representation that the sexual act serves a professional purpose. 4. Inducing a belief by any artifice, pretense, or concealment that the person is another person. (b) Commits a sexual act upon another person under one of the following circumstances: 1. Without the consent of the other person. 2. When the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring. (c) Commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to any of the following: 1. Impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person. 2. A mental disease or defect or a physical disability, and that condition is known or reasonably should be known by the person. (4) Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate sub. (2) had the sexual contact been a sexual act, is guilty of aggravated sexual contact and shall be punished as a court-martial may direct. (5) Any person subject to this chapter who commits or causes sexual contact upon or by another person, if to do so would violate sub. (3) had the sexual contact been a sexual act, is guilty of abusive sexual contact and shall be punished as a court-martial may direct. (6) In a prosecution under this section, in proving that a person made a threat, it need not be proven that the person actually intended to carry out the threat or had the ability to carry out the threat. (7) An accused may raise any applicable defenses available under this chapter or the rules for court-martial. Marriage is not a defense for any conduct in issue in any prosecution under this section.
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