[HISTORY: Adopted by the Common Council of the City of Muskego 11-6-2008 by Ord. No. 1285 (Ch. 42 of the 1964 Code); amended in its entirety 4-23-2019 by Ord. No. 1428. Subsequent amendments noted where applicable.]
The Wisconsin legislature has provided for the punishment, treatment, and supervision of persons convicted or otherwise responsible for sex crimes against children, including their release into the community. Indeed, Chapter 980 of the Wisconsin Statutes provides for the civil commitment of sexually violent persons. The purpose of this chapter is to protect the public, to reduce the likelihood that convicted sex offenders will engage in such conduct in the future.
The City finds and declares that sex offenders are a serious threat to public safety. When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault. Given the high rate of recidivism for sex offenders and that reducing opportunity and temptation is important to minimizing the risk of reoffense, there is a need to protect children where they congregate or play in public places in addition to the protections afforded by state law near schools, day-care centers, and other places children frequent. The City finds and declares that in addition to schools and day-care centers, children congregate or play at public parks and other child safety locations as defined hereunder.
The Common Council finds that the negative consequences of failing to regulate the movement of sex offenders are a hazard to children and the community. Thus, the Common Council has a duty and need to regulate where sex offenders reside and loiter within the City once they are reintegrated into the community. This chapter is a regulatory measure aimed at protecting the health and safety of the children in the City of Muskego from the risk that convicted sex offenders may reoffend in locations close to their residences. It is the intent of this chapter not to impose a criminal penalty, but rather to serve the City's compelling interest to promote, protect, and improve the health, safety, and welfare of the citizens of the City by creating areas around locations where children regularly congregate in concentrated numbers wherein certain sexual offenders and sexual predators are prohibited from establishing residence or loitering, and by regulating certain activities that may be used by sexual offenders to prey on children.
As used in this chapter, and unless the context requires otherwise:
- CRIMES AGAINST CHILDREN
- Any of the following offenses set forth within the Wisconsin Statutes, as amended, or the laws of this or any other state or the federal government, having like elements necessary for conviction and involving a person under the age of 18 years, respectively:
- A. Wisconsin Statute Sections:
- (1) 940.225(1): First Degree Sexual Assault.
- (2) 940.225(2): Second Degree Sexual Assault.
- (3) 940.225(3): Third Degree Sexual Assault.
- (4) 940.22(2): Sexual Exploitation by Therapist.
- (5) 940.30: False Imprisonment-victim was minor and not the offender's child.
- (6) 940.31: Kidnapping-victim was minor and not the offender's child.
- (7) 944.01: Rape (prior statute).
- (8) 944.06: Incest.
- (9) 944.10: Sexual Intercourse with a Child (prior statute).
- (10) 944.11: Indecent Behavior with a Child (prior statute).
- (11) 944.12: Enticing Child for Immoral Purposes (prior statute).
- (12) 948.02(1): First Degree Sexual Assault of a Child.
- (13) 948.02(2): Second Degree Sexual Assault of a Child.
- (14) 948.025: Engaging in Repeated Acts of Sexual Assault of the Same Child.
- (15) 948.05: Sexual Exploitation of a Child.
- (16) 948.055: Causing a Child to View or Listen to Sexual Activity.
- (17) 948.06: Incest with a Child.
- (18) 948.07: Child Enticement.
- (19) 948.075: Use of a Computer to Facilitate a Child Sex Crime.
- (20) 948.08: Soliciting a Child for Prostitution.
- (21) 948.095: Sexual Assault of a Student by School Instructional Staff.
- (22) 948.11(2)(a) or (am): Exposing Child to Harmful Material-felony sections.
- (23) 948.12: Possession of Child Pornography.
- (24) 948.13: Convicted Child Sex Offender Working with Children.
- (25) 948.30: Abduction of Another's Child.
- (26) 971.17: Not Guilty by Reason of Mental Disease-of an included offense.
- (27) 975.06: Sex Crimes Law Commitment.
- FACILITY FOR CHILDREN
- A public or private school or a group home, as defined in Wis. Stats. § 48.02(7); a residential care center for children and youth, as defined in Wis. Stats. § 48.02(15d); a shelter facility center, as defined in Wis. Stats. § 48.02(17); a day-care center licensed under Wis. Stats. § 48.65; a day-care program established under Wis. Stats. § 120.13(14); a day-care provider certified under Wis. Stats. § 48.651; or a youth center, as defined in Wis. Stats. § 961.02(22).
- A person who has been convicted of or has been found delinquent of or has been found not guilty by reason of disease or mental defect of a sexually violent offense and/or a crime against children.
- PARK/CONSERVATION AREA
- Any area held open for use by the public for active or passive leisure purposes, including but not limited to any park, parkway, recreation or open space area, beach, playground, conservation area, lake access point or recreational trail. "Park/conservation area" also means any private lake access point or private beach that owners of two or more lots or condominium units are entitled use, pursuant to a deed restriction, subdivision plat, condominium declaration, condominium plat, homeowners' association regulation or similar rights of common use.
- PERMANENT RESIDENCE
- The place where a person sleeps, abides, lodges, or resides for 14 or more consecutive days or which qualifies as a residence under the holdings of the Wisconsin Supreme Court and which may include more than one location, and may be mobile or transitory.
- SEXUALLY VIOLENT OFFENSE
- Shall have the meaning as set forth in Wis. Stats. § 980.01(6), as amended from time to time.
- TEMPORARY RESIDENCE
- Residence or premises meeting any of the following criteria:
- A. A place where the person sleeps, abides, lodges, or resides for a period of 14 or more days in the aggregate during any calendar year and which is not that person's permanent residence as defined in this section;
- B. A place where the person routinely sleeps, abides, lodges, or resides for a period of four or more consecutive or nonconsecutive days in any month and which is not that person's permanent residence as defined in this section; or
- C. A place where a person sleeps, or which qualifies as a temporary residence under the holdings of the Wisconsin Supreme Court, and which may include more than one location, and may be mobile or transitory.
It is unlawful for any offender to establish a permanent residence or temporary residence on property that is within 1,250 feet of real property that supports, or upon which there exists, any of the following uses:
Any facility for children.
Any specialized school for children, including but not limited to a gymnastics academy, dance academy, or musical school.
A public swimming pool.
A public library.
A park/conservation area.
A public playground.
A school for children.
Athletic fields used by children.
A day-care center.
A tutoring facility.
Aquatic facilities open to the public.
A golf course.
Measurement of the distance. The distance shall be measured from the closest boundary line of the real property supporting the residence of a person to the closest real property boundary line of the applicable above-enumerated use(s).
Residency restriction exceptions. An offender residing within 1,250 feet of real property that supports, or upon which there exists, any of the uses enumerated in Subsection A of this section does not commit a violation of this chapter if any of the following apply:
The offender is required to serve a sentence or is otherwise involuntarily required to reside in a jail, prison, juvenile facility, or other correctional institution or mental facility.
The offender has established a residence prior to the effective date of this chapter.
The use enumerated in Subsection A of this section began after the offender established a residence.
The offender is a minor or ward under guardianship.
In addition to and notwithstanding the foregoing, but subject to Subsection C of this section, no person who has been convicted of sexually violent offense and/or crime against children shall be permitted to reside in the City of Muskego and no supervised release of such Wisconsin Statute Chapter 980 sexually violent person shall be established in the City of Muskego unless such person was domiciled in the City of Muskego at the time of the offense resulting in the person's most recent conviction for committing the sexually violent offense and/or crime against children.
It is unlawful for any offender to participate in a holiday event involving children under 18 years of age by means of distributing candy or other items to children on Halloween, wearing a Santa Claus costume in a public place on or preceding Christmas, or wearing an Easter Bunny costume in a public place on or preceding Easter, or other similar activities that may, under the circumstances then present, tend to entice a child to have contact with an offender. Holiday events in which the offender is the parent or legal guardian of the children involved and no nonfamilial children are present are exempt from this section.
It is unlawful for any person defined as an offender pursuant to § 294-2 to loiter or prowl in the locations enumerated in § 294-3A, in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant alarm for the safety of persons or property in the vicinity.
Among the circumstances which may be considered in determining whether such alarm is warranted is the fact that the actor takes flight upon appearance of a peace officer, refuses to identify himself/herself or manifestly endeavors to conceal himself/herself or any object. Unless flight by the actor or other circumstances make this impracticable, a peace office shall, prior to any arrest for an offense under this section, afford the actor an opportunity to dispel any alarm which would otherwise be warranted, by requesting him/her to identify himself/herself and explain his/her presence and conduct at the locations enumerated in § 294-3A. No person shall be convicted of an offense under this section if the peace officer did not comply with the preceding sentence, or if it appears at trial that the explanation given by the actor was true and, if believed by the peace officer at the time, would have dispelled the alarm.
This section shall not apply where the actor was accompanied by his/her parent, guardian, or other adult person having his/her care, custody, or control, or where that actor was exercising First Amendment rights protected by the United States Constitution or Wisconsin Constitution, including freedom of speech, the free exercise of religion, and the right of assembly.
The City Planning Division shall maintain an official map showing locations identified in § 294-3 of this chapter. The Planning Division shall update the map at least annually to reflect any changes in the location of prohibited zones. These shall be designated on the map as "child safety zones." The map is to be displayed in the office of the City of Muskego City Clerk. In the event of a conflict, the terms of this chapter shall control.
Forfeitures. Any person found guilty of violating this chapter shall be subject to a forfeiture of not less than $500 nor more than $5,000 for each violation. Each violation and each day a violation continues or occurs shall constitute a separate offense. Neither the issuance of a citation nor the imposition of forfeiture hereunder shall preclude the City from seeking or obtaining any or all other legal and equitable remedies to prevent or remove a violation of this chapter.
Injunction; Violation of residency restrictions. If an offender establishes a permanent or temporary residence in violation of § 294-3, the Chief of Police may refer the matter to the City Attorney. The referral shall include a written determination by the Chief of Police that, upon all of the facts and circumstances and the purpose and intent of this chapter, such violation interferes substantially with the comfortable enjoyment of life, health, safety of another or others. Upon such referral, the City Attorney may bring an action in the name of the City in Circuit Court to permanently enjoin such residency as a public nuisance.