Track

Status

Governing provision

Five offenses have no limitation — § 939.74(2)(a)1.: “A prosecution under s. 940.01, 940.02, 940.03, 940.05, 940.225 (1), 948.02 (1), or 948.025 (1) (a), (b), (c), or (d) may be commenced at any time.” On the sexual side that is first degree sexual assault (§ 940.225(1)), first degree sexual assault of a child (§ 948.02(1)), and the more serious limbs of repeated acts of sexual assault of the same child (§ 948.025(1)(a) to (d)). Subdivision 2 extends the same to attempts. 

BUT A LONG LIST OF CHILD OFFENSES IS BARRED AT FORTY-FIVE — § 939.74(2)(c): “A prosecution for violation of s. 948.02 (2), 948.025 (1) (e), 948.03 (2) (a) or (5) (a) 1., 2., or 3., 948.05, 948.051, 948.06, 948.07 (1), (2), (3), or (4), 948.072, 948.075, 948.08, 948.081, 948.085, or 948.095 shall be commenced before the victim reaches the age of 45 years or be barred, except as provided in sub. (2d).” Section 948.02(2) is second degree sexual assault of a child; § 948.05 is sexual exploitation of a child; § 948.06 is incest with a child; § 948.07 is child enticement; § 948.08 is soliciting a child for prostitution; § 948.085 is sexual assault of a child placed in substitute care; § 948.095 is sexual assault of a student by school staff. 

AND A SECOND GROUP IS BARRED AT TWENTY-SIX — § 939.74(2)(cm): “A prosecution for violation of s. 948.03 (2) (b) or (c), (3), (4), or (5) (a) 4. or 5., 948.04 or 948.07 (5) or (6) shall be commenced before the victim reaches the age of 26 years or be barred, except as provided in sub. (2d).” Section 948.04 is causing mental harm to a child; § 948.07(5) and (6) are the remaining child enticement limbs. 

Adult sexual assault has fixed periods — § 939.74(2)(ar): a prosecution for a violation of § 940.225(2), second degree sexual assault, may be commenced within twenty years; for § 940.225(3), third degree sexual assault, within ten years. 

The general rule these displace — § 939.74(1): “Except as provided in subs. (2) and (2d) and s. 946.88 (1), prosecution for a felony must be commenced within 6 years and prosecution for a misdemeanor or for adultery within 3 years after the commission thereof.” The subsection also defines commencement: a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed. 

A DNA extension that is narrower than most — § 939.74(2d)(c): where the state collects biological material before the applicable period expires, identifies a DNA profile and compares it to profiles of known persons, prosecution may be commenced within twelve months after the comparison produces a probable identification, or within the ordinary period, whichever is later. Note the condition: the material must be collected before the period expires. 

And a well-litigated tolling rule — § 939.74(3): the period does not run while the defendant is not publicly a resident within the state. The annotations record State v. McGuire, 2010 WI 91, upholding a thirty-six-year tolling under that subsection against privileges and immunities, due process and equal protection challenges. 

Why the status is “partly removed”: § 939.74(2)(c) bars sixteen named child offenses — including second degree sexual assault of a child, incest with a child, child enticement and sexual assault of a student by school staff — on the survivor’s forty-fifth birthday, and a further group at twenty-six. Forty-five is generous, but only three sexual provisions in the whole section are genuinely unlimited.

The rule, in full — § 893.587: “An action to recover damages for injury caused by an act that would constitute a violation of s. 948.02, 948.025, 948.06, 948.085, or 948.095 or would create a cause of action under s. 895.442 shall be commenced before the injured party reaches the age of 35 years or be barred.” The deadline is the survivor’s thirty-fifth birthday, with no discovery alternative of any kind. 

BUT IT ONLY REACHES THE PERSON WHO COMMITTED THE ACT — Fleming v. Amateur Athletic Union of the United States, Inc., 2023 WI 40. The annotation printed with the section by the Wisconsin Legislature states the holding: “The limitations period in this section applies only to claims alleging that the defendant caused the plaintiff’s injury by committing an enumerated act… The plaintiff’s action to recover damages was for injury caused by a non-profit organization’s act of negligently hiring, retaining, and supervising that individual. Because the plaintiff did not allege that the organization committed an enumerated injury-causing act, the plaintiff’s claim was not an action to recover damages to which this section applied. The governing time limit was instead the three-year statute of limitations under s. 893.54, as extended by s. 893.16.” 

That puts institutional claims on roughly a twentieth-birthday deadline. Section 893.54 gives three years for injury to the person; § 893.16 is the minority savings provision, which allows an action within two years after the disability ceases. A negligent hiring, retention or supervision claim against a school, church, club or agency is therefore out of time at about twenty — fifteen years earlier than a claim against the abuser himself. 

Wisconsin is the only state in this dataset where the institutional cut-off comes from a decision rather than from the statute. Oklahoma, South Dakota, Utah, West Virginia and Tennessee all wrote their institutional restrictions into the text. Wisconsin’s § 893.587 says nothing about defendants; the restriction is in Fleming’s reading of “caused by an act that would constitute a violation”. 

Two earlier decisions show how hard the section is on discovery — the annotations record Byrne v. Bercker, 176 Wis. 2d 1037 (1993), where an action was time barred when flashbacks more than two years before suit made the victim aware of incest that had allegedly occurred more than fifty years earlier; and Cheryl D. v. Estate of Robert D.B., 207 Wis. 2d 548 (Ct. App. 1996), holding that an adult victim of incest who at the time knew the identity of the tortfeasor and the impropriety of the conduct did not qualify for discovery-rule tolling merely because she was unaware of the psychological harm. 

One route survives against institutions — Doe v. Archdiocese of Milwaukee, 2007 WI 95, recorded in the same annotations, held that claims for injury caused by an archdiocese’s alleged fraudulent misrepresentation about its knowledge of abusive priests were not barred by § 893.587, because none of the statutes listed in the section refers to fraudulent misrepresentations. 

The single status hides a fifteen-year gap between two classes of defendant. Fleming v. Amateur Athletic Union, 2023 WI 40, holds that § 893.587 does not reach a claim against an organization for negligent hiring, retention and supervision, so such a claim runs on the three-year period in § 893.54 as extended by the minority savings provision in § 893.16 — a deadline of about twenty against institutions and thirty-five against abusers. Fleming is in the tracker’s civil citation field already; what it decides is not.

Wis. Stat. § 893.587 — Wisconsin Legislature, official Wisconsin Statutes (the Fleming annotation is printed with the section)

Section 893.587 contains no revival provision. It sets a single age deadline and has been amended five times — 1987 a. 332; 2001 a. 16; 2003 a. 279; 2005 a. 155 and 277; 2007 a. 97 — without any reach-back. 

The criminal side has a judicial answer on retroactivity that points the same way. The annotations to § 939.74 record State v. MacArthur, 2008 WI 72: “When sub. (2) (c) was created in 1987, it only applied prospectively. Subsequent amendments did not change this conclusion because they did not change the initial applicability of sub. (2) (c). Rather, the language in the subsequent amendments, which stated these amendments apply to offenses not yet barred, was clearly meant to apply to offenses that sub. (2) (c) had not already barred.” Wisconsin has therefore used non-reviving retroactive language on the criminal track and has used none at all on the civil track. 

No Wisconsin appellate decision on the constitutionality of retroactive civil revival was located, and none is asserted. Because no window has ever been enacted, the vested-rights question has not arisen in the form it took in Utah, Colorado, Kentucky, Maine and New Hampshire.

Wis. Stat. § 893.587 — Wisconsin Legislature, official Wisconsin Statutes