In the
United States Court of Appeals
For the Seventh Circuit
Nos. 09-3317 & 09-3318
M ATTHEW R. S TEFFES,
Petitioner-Appellant,
v.
W ILLIAM P OLLARD ,
Respondent-Appellee.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 07 CV 01139—William E. Callahan, Jr., Magistrate Judge.
A RGUED S EPTEMBER 29, 2010—D ECIDED N OVEMBER 4, 2011
Before B AUER, W OOD , and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. This is a tragic case all
around, for the defendant and his victims. When
Matthew Steffes was just fourteen years old, he ran
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
William Pollard, the current warden of the Waupun Correc-
tional Institution, is substituted for Michael Thurmer as re-
spondent.
2 Nos. 09-3317 & 09-3318
into Joshua Howard, the former boyfriend of a cousin.
Howard was twenty-one. Steffes left an abusive, dysfunc-
tional family when Howard invited Steffes to live with
him, but the price was steep as Howard prostituted
Steffes to have sex with an older man. Howard was in a
sexual relationship with a twelve-year-old girl, A.W.
She and her thirteen-year-old friend, M.F., ran away
from home and stayed with Howard and Steffes at
Howard’s apartment and then in various motels. At
Howard’s request, the girls had sex with other men and
gave the money to Howard and Steffes.
Howard and Steffes were convicted of multiple counts
of child enticement, solicitation, and sexual assault based
on the age of the girls. On one occasion, the four engaged
in group sex during which A.W. performed fellatio on
Steffes, then fifteen, which is the basis of the charge at
issue in this habeas corpus proceeding. Steffes challenges
his conviction for sexually assaulting A.W., maintaining
that his counsel was constitutionally ineffective. In light
of Wisconsin’s statutory definition of “sexual inter-
course,” Steffes contends that his counsel should have
requested that the jury be instructed that the act needed
to be “by the defendant or upon the defendant’s instruc-
tion” to convict him. Because we conclude Steffes was
not prejudiced from the jury’s failure to receive the in-
struction he seeks, we affirm the district court’s denial
of his petition for a writ of habeas corpus.
I. BACKGROUND
Matthew Steffes’s earliest childhood memory is of his
mother’s arrest for drunk driving while he and his two
Nos. 09-3317 & 09-3318 3
sisters were in the car and then of being driven by the
police with his sisters to the police station. While his
mother served her sentence in jail, Steffes found his
father with another woman at a party his father threw
at their home. Steffes adored his father, though, and
did not tell his mother what he had seen.
Both of Steffes’s parents drank heavily, and his mother
used drugs. Steffes’s father was also abusive toward his
mother, and Steffes’s older sister reported that the
abuse did not end there. She says that their father was
physically abusive towards all his children, and that
their mother beat them as well. She also said that their
mother tried to commit suicide by taking pills, and that
Steffes’s father would take the phone out of the wall
during fights so that no one could call the police.
Against this backdrop, Steffes encountered Howard
and seized the opportunity to live with him, in a place
where Howard gave Steffes his own room and access
to many of Howard’s old clothes. Steffes had to earn
his keep, however, and, at Howard’s request, he had
sex with a man Howard knew for money.
In the fall of 1999, twenty-two-year-old Howard
became involved with A.W., who was twelve years old.
On November 5, 1999, A.W. and M.F. ran away from
home. The girls stayed at Howard’s place for a few days,
and the group then moved to motels in the Milwaukee
area. Howard and A.W. had a relationship during this
time, as did Steffes and M.F. At some point, the four
had group sex during which A.W. performed fellatio
on Steffes.
4 Nos. 09-3317 & 09-3318
At the first motel, Howard asked the girls to engage in
acts of prostitution for money, and they agreed. Howard
and Steffes collected money from the men who had
sex with the girls in the motels. Steffes’s involvement
with the girls ended when he left after an argument he
had with M.F. because she would not answer him at the
door. A.W. and M.F. continued on with Howard and
another male to additional hotels, and the girls continued
to work for Howard for approximately two more weeks.
On December 14, 1999, Howard saw a local television
broadcast with a photograph of M.F. and arranged for
the girls to be driven to the Chicago area, but not
before threatening to kill them and their loved ones if the
girls told anyone what had taken place.
After M.F. reported what had happened, Howard and
Steffes were charged in Milwaukee County, Wisconsin
Circuit Court with multiple crimes. As relevant here, the
jury was instructed on Steffes’s first degree sexual
assault charge based on the fellatio A.W. performed on
him as follows:
First degree sexual assault of a child, as defined by
the Criminal Code of Wisconsin, is committed
by one who has sexual intercourse with a person
who has not attained the age of 13 years.
Before you may find the defendant guilty of this
offense—and this is either or both—the State must
prove by evidence, which satisfies you beyond a
reasonable doubt that the following two ele-
ments were present.
First, that the defendant had sexual intercourse
with A. W.
Nos. 09-3317 & 09-3318 5
Second, that A.W. had not attained the age of
13 years of age at the time of the alleged sexual
intercourse.
The first element requires the defendant had
sexual intercourse with A.W., as the Court stated.
Sexual intercourse means any intrusion, however
slight, by any part of the body’s—person’s body
or of any object into the genital or anal opening
of another. Emission of semen is not required.
Sexual intercourse also includes the oral stimula-
tion of the penis.
The second element requires that A.W. had not
attained the age of 13 years at the time of the
alleged sexual intercourse. Knowledge of A.W.’s
age is not required and mistake regarding A.W.’s
age is not a defense. Consent to sexual inter-
course is not a defense.
If you are satisfied beyond a reasonable doubt
that the defendant had sexual intercourse with
A.W. and that A.W. had not attained the age of
13 years at the time of the alleged sexual inter-
course, you should find the defendant guilty.
If you are not satisfied, you must find the defen-
dant not guilty.
On July 25, 2001, a jury convicted Steffes of one count
of first degree sexual assault of A.W., two counts of
second degree sexual assault related to M.F. in light of
her age, six counts of child enticement, and six counts
of solicitation. It found him not guilty of two counts of
6 Nos. 09-3317 & 09-3318
delivering marijuana to the girls. The judge sentenced
Steffes to 112 years’ imprisonment. In July 2003, Steffes
filed a post-conviction motion seeking modification of
his sentence and a new trial. A new trial court judge
assigned to the case granted a motion to vacate four
of the solicitation convictions and modified Steffes’s
sentence to forty years’ imprisonment.
Steffes filed a post-conviction motion in January 2006
that challenged, among other things, his conviction for
the first degree sexual assault charge. Regarding that
conviction, Steffes argued that his counsel was ineffec-
tive for failing to request that the jury be instructed that
the act must have been either “by the defendant or upon
the defendant’s instruction.” The state trial court denied
the motion. It stated there was a reasonably strong in-
ference that Steffes consented. Because there was no
evidence as to who initiated it or whether any “instruc-
tions” were given, however, the judge reasoned that
had the instruction been requested and given, there was
a significant possibility the result on that count would
have been different. The court declined to vacate the
conviction, however, because it found that counsel’s
decision not to request the instruction was strategic
and did not constitute defective performance. The Wis-
consin Court of Appeals also concluded that Steffes’s
trial counsel did not render ineffective assistance of
counsel. State v. Matthew R. Steffes, No. 2006 AP 1633-CR
(Wis. Ct. App. 2007) (unpublished). The Wisconsin Su-
preme Court denied the petition for review. Steffes then
filed a pro se petition for habeas corpus under 28 U.S.C.
§ 2254, which the district court denied. Steffes, now
represented by counsel, appeals from that decision.
Nos. 09-3317 & 09-3318 7
II. ANALYSIS
In this habeas corpus proceeding, Steffes challenges
his conviction for first degree sexual assault for having
sexual intercourse with a person who had not attained
the age of thirteen years. See Wis. Stat. § 948.02(1)(b)
(1999).1 This charge was based on fellatio that Steffes
received from A.W. when Steffes was fifteen years old
and A.W. was twelve. Some might wonder about some
of the charges brought against Steffes in this case as it is
clear that Howard was the ringleader. Howard enlisted
Steffes to serve as a prostitute in exchange for clothing
and a place to live, and Howard was the one who asked
the girls if they would engage in acts of prostitution for
money. In the charge at issue in particular, based on
the oral sex A.W. performed on Steffes, only three years
separated the two. The charging decision was not
ours to make, however, and it is not an issue for our
consideration.
Instead, our task is to evaluate Steffes’s habeas claim.
By statute, Wisconsin provides that
“[s]exual intercourse” means vulvar penetration as
well as cunnilingus, fellatio or anal intercourse be-
tween persons or other intrusion, however slight, of
any part of a person’s body or of an object into the
1
The statute has since been amended. Now, sexual intercourse
with a person who has not attained the age of twelve years
constitutes first degree sexual assault, while sexual inter-
course or contact with a person under sixteen years is second
degree sexual assault. See Wis. Stat. § 948.02(1)(d), (2) (2003).
8 Nos. 09-3317 & 09-3318
genital or anal opening either by the defendant or
upon the defendant’s instruction.
Wis. Stat. § 948.01(6) (emphasis added). Steffes maintains
that he received constitutionally ineffective assistance
from his trial counsel because his counsel failed to
request that the words we underlined—“either by the
defendant or upon the defendant’s instruction”—be given
to the jury in its instructions. Steffes argues that had
the jury received those words in its instructions, there
is a reasonable probability it would not have convicted
him of sexually assaulting A.W. because there is no
evidence he instructed A.W. to have oral sex with him.
A. Concurrent Sentence Doctrine
The warden first urges us not to reach the merits of
Steffes’s argument. The only conviction Steffes challenges
before us is his conviction for first degree sexual assault
of A.W., a conviction for which he received a fifteen-
year sentence. Steffes’s sentence on this count runs con-
current to four other twenty-year sentences that are
unchallenged in this appeal, so the warden says we
need not review the conviction Steffes challenges.
Application of the “concurrent sentence doctrine” is
a matter of judicial discretion. Cheeks v. Gaetz, 571 F.3d
680, 689 (7th Cir. 2009); see also Benton v. Maryland, 395
U.S. 784, 787-91 (1969). We decline the warden’s request
to apply the doctrine here for several reasons. First, the
Supreme Court has instructed that a defendant is
not serving concurrent sentences when he received a
Nos. 09-3317 & 09-3318 9
specific assessment for the particular count he chal-
lenges. Ray v. United States, 481 U.S. 736, 737 (1987) (per
curiam). In Ray, the trial court had imposed a $50 assess-
ment on three separate counts, in addition to con-
current prison and parole terms. The federal appellate
court applied the “concurrent sentence doctrine” and
declined to review a conviction because sentences in
the case were concurrent. The Supreme Court held that
because the petitioner’s liability to pay the $150 depends
on the validity of each of his three convictions, the sen-
tences were not concurrent. See id. Here, Steffes received
a $95 assessment for his first degree sexual assault con-
viction. As far as we can tell that has not been paid, and
that fact alone probably precludes application of the
concurrent sentence doctrine. See id.; United States v. Spirk,
503 F.3d 619, 622 (7th Cir. 2007). In addition, Steffes is
eligible for discretionary parole in January, and a vacatur
of the first degree sexual assault conviction could affect
the parole determination. Cf. Cheeks, 571 F.3d at 689 (ap-
plying concurrent sentence doctrine to sentence where
there were no potential parole consequences). In this
case, we decline the warden’s invitation to apply the
concurrent sentence doctrine.
B. Ineffective Assistance of Counsel Claim
We turn now to the substance of Steffes’s challenge.
The familiar Strickland v. Washington, 466 U.S. 668 (1984),
standard governs Steffes’s argument that his trial
counsel gave him ineffective assistance by failing to
request specific language in the jury instructions. To
10 Nos. 09-3317 & 09-3318
succeed, Steffes must show that his counsel’s performance
was deficient, and also that the deficiency prejudiced
his defense. Id. at 687. We review the district court’s
denial of Steffes’s habeas petition de novo and any
factual findings for clear error. Kerr v. Thurmer, 639 F.3d
315, 318 (7th Cir. 2011).
1. Deficient Performance
The Wisconsin appellate court concluded that trial
counsel’s failure to request an instruction that the
sexual intercourse must have been “by the defendant or
upon the defendant’s instruction” was a sound strategic
decision. The warden concedes to us, however, that
there is no support in the record for the conclusion that
Steffes’s counsel made a conscious choice not to request
the challenged language. No evidentiary hearing was
held on Steffes’s post-conviction motion, and the record
contains only Steffes’s counsel’s stipulation. The warden
states that a finding that Steffes’s attorney made a con-
scious choice when there is no evidence establishing a
conscious choice is a decision “so inadequately sup-
ported by the record” that it is arbitrary and therefore
unreasonable. The warden therefore agrees with Steffes
that, under any interpretation, he has surpassed the
§ 2254(d)(2) hurdle of showing that the Wisconsin ap-
pellate court decision “was based on an unreasonable
determination of the facts in light of the evidence pre-
sented in the State court proceeding.” For now, we take
the warden’s acknowledgment that Steffes has cleared
the first Strickland hurdle, without comment as to
whether this concession was correct, and proceed.
Nos. 09-3317 & 09-3318 11
2. Prejudice
The state’s concession does not end matters, however.
To receive the writ of habeas corpus he seeks, Steffes
still must demonstrate that he was prejudiced because
the jury was not instructed that the sexual intercourse
with A.W. needed to be “by the defendant or upon the
defendant’s instruction” to convict him. See Wiggins
v. Smith, 539 U.S. 510, 534 (2003); Strickland, 466 U.S. at 667.
The first question in our prejudice analysis is what
standard of review applies. The answer depends on
whether the state court made a prejudice determination.
If it did, AEDPA’s deferential review applies. See Malinow-
ski v. Smith, 509 F.3d 328, 333 (7th Cir. 2007). If it did
not, we would ask de novo whether Steffes had estab-
lished prejudice. See Porter v. McCollum, 130 S. Ct. 447,
452 (2009) (“Because the state court did not decide
whether Porter’s counsel was deficient, we review this
element of Porter’s Strickland claim de novo.”).
The warden states in his brief that “[t]he review of the
prejudice prong is without deference” and suggests that
the Wisconsin appellate court addressed only the perfor-
mance aspect of Steffes’s claim. See Appellee’s Br. at 14
n.1. But that is not exactly consistent with the appellate
court’s decision. The Wisconsin Court of Appeals wrote
that based on Strickland’s standard for establishing inef-
fective assistance of counsel, it “[could] not conclude that
Steffes has demonstrated that counsel’s failure to object
to this instruction was prejudicial to the outcome of this
case.” We read that language as a determination by the
state appellate court that Steffes did not establish the
12 Nos. 09-3317 & 09-3318
requisite prejudice necessary to satisfy Strickland. That
the court did not expand on its reasoning is not determina-
tive. See Coulter v. McCann, 484 F.3d 459, 470 (7th Cir.
2007) (stating that fact that state judge failed to explain
conclusion is not a reason to reject outcome, as “ ‘AEDPA’s
requirement that a petitioner’s claim be adjudicated on
the merits by a state court is not an entitlement to a well-
articulated or even a correct decision by a state court’ ”)
(quoting Muth v. Frank, 412 F.3d 808, 815 (7th Cir. 2005));
see also Malinowski, 509 F.3d at 334-35. AEDPA review
therefore applies. See Malinowski, 509 F.3d at 333.
Under AEDPA, a federal court may not grant habeas
relief on a claim adjudicated on the merits in state court
unless the adjudication
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d). The issue here is whether the Wis-
consin appellate court unreasonably applied Strickland
when it concluded that Steffes was not prejudiced by
failing to receive the jury instruction he now seeks. See
Porter, 130 S. Ct. at 453 (assessing Strickland prejudice
under subsection (d)(1)); see also Smith v. Spisak, 130 S. Ct.
676, 687-88 (2010) (same).
The Supreme Court has explained that to show
prejudice, a “defendant must show that there is a reason-
Nos. 09-3317 & 09-3318 13
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. “A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome.” Id. The burden rests on the
defendant to show a reasonable probability that the
result would have been different. Wong v. Belmontes, 130
S. Ct. 383, 390-91 (2009).
Although neither party discusses it, the import of
the words “by the defendant or upon the defendant’s
instruction” in the Wisconsin “sexual intercourse” defini-
tion, and specifically their application when the act at
issue is fellatio, is not entirely clear in Wisconsin law.
The phrase appears in the statute defining “sexual in-
tercourse” to mean “vulvar penetration as well as
cunnilingus, fellatio or anal intercourse between per-
sons or other intrusion, however slight, of any part of
a person’s body or of an object into the genital or
anal opening either by the defendant or upon the de-
fendant’s instruction.” Wis. Stat. § 948.01(6); see
also Wis. Stat. § 940.225(5)(c). Wisconsin’s pattern jury
instructions list the language at issue as an optional
instruction. See Wis. JI—Criminal 2101 B (2007) (providing
as an option to be included when the evidence sup-
ported it, “The act of sexual intercourse must be either
by the defendant or upon the defendant’s instruction.”).
Indeed, the words “by the defendant or upon the de-
fendant’s instruction” have not always been part of Wis-
consin’s statutory scheme. The Wisconsin legislature
added “by the defendant or upon the defendant’s instruc-
14 Nos. 09-3317 & 09-3318
tion” to the sexual intercourse definition in 1981, with
a May 1, 1982 effective date. The 1981 Legislative
Council Notes to Wisconsin Statute § 940.225 state:
Presently, . . . the definition of “sexual intercourse”
in the sexual assault statute includes any
intrusion of any part of a person’s body or of any
object into the genital or anal opening of another
person. This proposal clarifies that the intrusion
of the body part or object may be caused by the
direct act of the offender (defendant) or may
occur as a result of an act by the victim which is
done in compliance with instructions of the of-
fender (defendant).
See also State v. Maxwell, 825 A.2d 1224, 1229-30 (N.J. Super.
Ct. Law Div. 2001) (discussing changes to Wisconsin
statute and stating, “Hence, the Wisconsin Legislature
adopted language virtually identical to our statute to
ensure that it was understood that an offender/defendant
who instructs a victim to self penetrate is criminally
liable under the statute”). The 1981 Legislative Council
notes suggest that “by the defendant or upon the defen-
dant’s instruction” applies only to “other intrusion” acts,
and not, as here, when the act is fellatio. Such a reading
of the statute makes sense. If an adult female teacher
were prosecuted for having intercourse with her fifteen-
year-old male student, for example, and the relevant
act in the “sexual intercourse” definition was “vulvar
penetration,” we cannot imagine that the statute should
be read to acquit the defendant because the penetration
was not “by” her. The reading is also sensible in light of
Nos. 09-3317 & 09-3318 15
the “between persons” language in the early part of the
definition that immediately precedes “or other intru-
sion.” A conclusion that all acts must be “by the de-
fendant or upon the defendant’s instruction” would lead
to the odd result that an act must be both “between
persons” and “by the defendant”(or upon his instruction).
The Wisconsin state courts have not often addressed
the language Steffes seeks. The most extensive discus-
sion of “by the defendant or upon the defendant’s in-
struction” occurs in the Wisconsin Court of Appeals’s
decision in State v. Olson, 616 N.W.2d 144 (Wis. Ct. App.
2000). There, an eighteen-year-old female reported to
school authorities that two fellow students, fourteen- and
fifteen-year-old boys, had raped her. The boys main-
tained the intercourse was consensual, and the female
was charged with two counts of sexual assault of a
child. At trial, the female defendant asked that the jury
be instructed that the prosecution needed to prove
that the intercourse was “by the defendant or upon the
defendant’s instruction.” Without that direction, she
argued, the instructions amounted to a directed verdict
of guilty since there was no dispute that intercourse
had occurred and that the boys were under sixteen. The
trial court refused her request, instead instructing the
jury only that it needed to find she “had sexual inter-
course” with the boys and that they were under sixteen
at the time. The jury convicted her. See id. at 145-46.
On appeal, the defendant argued that the jury should
have been told the intercourse needed to be by the defen-
dant or upon the defendant’s instruction to find her
16 Nos. 09-3317 & 09-3318
guilty. The state, however, argued that those words
modified only the “other intrusion” language in the
sexual intercourse definition. The Olson court rejected
the state’s reading and stated that the legislature
intended the phrase to modify the entire list of activities
in the sexual intercourse definition. Id. at 79-80. It
then remanded the case for a new trial that included
an instruction to the jury that the intercourse must
have been by the defendant or upon the defendant’s
instruction in order to convict the defendant. Id. at 82-83.
The Supreme Court of Wisconsin’s State v. Lackershire,
734 N.W.2d 23 (Wis. 2007), decision also involved a
defendant who maintained she was the victim of sexual
assault. The Lackershire defendant, a blind female whom
the court described as mentally and physically chal-
lenged, pled guilty to sexual assault of a child (a fourteen-
year-old male). She later sought to withdraw her plea,
arguing that the factual basis for her plea was
insufficient because she was the victim. The Wisconsin
Supreme Court stated that both in the case before it and
in Olson “there was no dispute that a sexual assault
took place, but there was a question as to whether it was
an assault by the defendant or an assault of the defen-
dant.” Id. at 35. Therefore, it stated, the proposed jury
instruction in Olson adding the words “by the defendant
or upon the defendant’s instruction,” “served to
establish the understanding that being the victim of
rape would negate the charge that the defendant com-
mitted the assault.” Id. The Lackershire court concluded
that a substantial question existed as to whether the
intercourse was a sexual assault of the defendant or by
Nos. 09-3317 & 09-3318 17
the defendant and that the colloquy did not establish
that the defendant understood she could not be guilty
if the underlying conduct was an assault on her. Id. at
35, 39.
In light of its conclusion that the guilty plea was inade-
quate, the court did not resolve whether the words
“by the defendant or upon the defendant’s instruction”
constituted an element of “sexual intercourse” as the
defendant contended, or rather whether the phrase was
an element only of assaults involving intrusions or inser-
tion of objects as the state argued. See Lackershire, 734
N.W.2d at 39-40 (Butler, J., concurring). Indeed, a concur-
ring justice noted that the majority declined to consider
the issue but that its resolution would have been
helpful in providing guidance in a significant number
of future cases. See id.
This is one of those cases. If the phrase “by the defendant
or upon the defendant’s instruction” only modifies the
“other intrusion” language, there would be no prejudice
to Steffes as that is not the form of sexual intercourse
at issue here. And although the Olson court wrote that
the Wisconsin legislature intended that the “by the de-
fendant or upon the defendant’s instruction” language
apply to all forms of sexual intercourse, the Olson court
did not discuss the change in Wisconsin’s sexual inter-
course definition over the years or the 1981 Legislative
Council Notes. Nor did it reconcile the “between persons”
language in the early part of the definition with the
conclusion that all acts must also be “by the defendant.”
18 Nos. 09-3317 & 09-3318
Moreover, here, unlike in Lackershire and Olson, the
defendant is not maintaining that he was the victim of a
sexual assault. Steffes is not arguing, like the defendants
in those cases were, that the words “by the defendant
or upon the defendant’s instruction” were needed to
negate a finding that even intercourse against his will
rendered him guilty. So even if the “by the defendant or
upon the defendant’s instruction” phrase applies beyond
“other intrusion” situations, perhaps Olson is to be con-
fined to situations where the defendant asserts that he or
she is the victim. (Some defense to a defendant who
maintains he or she was the victim would of course be
necessary. Another solution would seem to be that the
defendant could raise as a defense at trial that the in-
tercourse took place against his or her will. See Lackershire,
734 N.W.2d at 40 (Butler, J., concurring) (noting that
state argued that a defendant’s non-consent to sexual
intercourse is a defensive matter to be raised by the
defendant); cf. United States v. McDonald, 592 F.3d 808,
814 (7th Cir. 2010) (discussing strict liability with regard
to a child’s age under § 948.02 but also stating “[t]he act
of sexual intercourse or contact, of course, must be voli-
tional”)).
The parties and the state court did not discuss the
propriety of the requested language in this situation,
however, and the parties instead proceed on the assump-
tion that the phrase “by the defendant or upon the de-
fendant’s instruction” applies to all forms of “sexual
intercourse.” And Olson does have broad language,
despite the narrowness of its facts; it says that the
phrase modifies the entire list of activities in the sexual
Nos. 09-3317 & 09-3318 19
intercourse definition. 616 N.W.2d at 147; cf. Stephenson
v. Wilson, 619 F.3d 664, 670 (7th Cir. 2010) (“The test of
ineffective assistance is not whether the court system
would have ruled correctly on a valid objection or
other defense tactic; it is whether the existing law would
have required the courts to uphold the objection.”).
Even if the jury should have been told that the act
must have been either by the defendant or upon the
defendant’s instruction, we conclude that the Wisconsin
appellate court’s determination that Steffes failed to
show prejudice from the jury’s failure to receive the
instruction was not unreasonable. The warden main-
tains that the jury would have considered the charge in
light of all the circumstances under which A.W. found
herself and concluded that the act occurred at Steffes’s
instruction. A.W. had run away from home and was
staying with Howard and Steffes, who were both older
than her, at various motels. They provided her with
alcohol, had her engage in acts of prostitution with other
men, and then collected the money from the men. The
jury might have found that in these circumstances the
act was upon Steffes’s instruction.
However, it is true that there is no suggestion that
Steffes specifically instructed A.W. regarding the act in
question, which might indicate that it was not “upon
the defendant’s instruction.” But the Olson court sug-
gests that “allowing” intercourse to happen might
suffice to satisfy the “by the defendant or upon the de-
fendant’s instruction” requirement. In addition to the
crime before it, the Olson court discussed the crime in
20 Nos. 09-3317 & 09-3318
Wisconsin of sexual contact with a child, where a de-
fendant’s “allowing” of the touching is sufficient for
conviction. See Olson, 616 N.W.2d at 147 (discussing State
v. Traylor, 489 N.W.2d 626 (Wis. Ct. App. 1992)). Like
here, the act at issue in Olson was sexual intercourse,
not sexual contact, and the court wrote that although
the state argued in the case before it there was evi-
dence that the defendant allowed the intercourse, “[t]he
point, however, is not whether such evidence exists—or
even whether it might be considered persuasive to the
jury. The point is that the jury was never permitted to
consider whether Olson did or did not allow the inter-
course to occur.” Id. at 148. If “allowing” suffices under
Wisconsin law, there was clearly no prejudice to Steffes.
The jury heard about the sexual intercourse he and
M.F. had on multiple occasions and the group sex on
another, and the jury could have readily concluded that
he allowed the act at issue.
That said, passive “allowing” does seem a bit different
than a sexual act committed “by the defendant or upon
the defendant’s instruction,” which arguably contains
a more affirmative component, and it is a bit unclear
whether Olson meant that “allowing” would suffice in
the sexual intercourse rather than the sexual contact
context.2 If the act was not upon Steffes’s instruction,
2
The Olson court stated in another part of its opinion, for
example:
In short, in sexual-contact-with-a-child cases where
the contact was initiated by the child, the State must
(continued...)
Nos. 09-3317 & 09-3318 21
that leaves the “by the defendant” option. As the Wis-
consin trial court judge asked when ruling on the post-
conviction motion, what does “by the defendant”
even mean when the act is fellatio?
To the extent the “by the defendant” language applies
to fellatio given by a twelve-year-old and willingly re-
ceived by a defendant, it must mean that the recipient
cannot defend himself by arguing that the act was not
“by” him. Fellatio can well be said to be “by” both
involved persons, including the recipient. To conclude
otherwise in this context would run counter to the
very reason for the crime of sexual intercourse with a
person under thirteen with which Steffes was charged:
“The statutes are designed to impose the risk of criminal
penalty on the adult, when the adult engages in sexual
behavior with a minor.” State v. Jadowski, 680 N.W.2d 810,
817 (Wis. 2004). The statutes are premised on Wisconsin’s
2
(...continued)
prove that the defendant at least “allowed”—that is,
consciously and affirmatively consented to—the contact
before an inference could be drawn that he (or
she) intended sexual gratification or arousal. We
believe a similar requirement is implicit in the sex-
ual-intercourse-with-a-child statute—a requirement
that the intercourse must at least have occurred, in
the language of Wis. Stat. § 948.01(6) and Wis.
JI-Criminal 2104 and 2101B, “upon [the defendant’s]
instruction” before a conviction may be had. This
was not done here.
616 N.W.2d at 147-48.
22 Nos. 09-3317 & 09-3318
determination that minors under a certain age cannot
consent to sexual intercourse, and to conclude other-
wise would contravene that determination. See id. (“The
statute [948.02(2)] is based on a policy determination by
the legislature that persons under the age of sixteen are
not competent to consent to sexual contact or sexual
intercourse. The statute is intended to protect children.
The state has a strong interest in the ethical and moral
development of its children, and this state has a long
tradition of honoring its obligation to protect its children
from predators and from themselves.”). Under Wis-
consin law, a twelve-year-old cannot consent to sexual
intercourse and therefore cannot engage in sexual inter-
course “voluntarily.” See State v. Kummer, 301 N.W.2d
240, 246 (Wis. 1981) (statute providing that minors
under a certain age cannot consent “continues the
state’s policy of penalizing sexual intercourse or sexual
contact with a person under a legislatively prescribed
age without regard to the consent of the victim”).
We conclude that under any interpretation of “by the
defendant or upon the defendant’s instruction,” Steffes
was not prejudiced from the fact that the jury did not
receive the language he now seeks. Therefore, he has not
made out a successful ineffective assistance of counsel
claim. Although we reach that conclusion, we are not
unmindful of the circumstances by which Steffes
became involved in the conduct that led to his charges
in this case. We trust that the parole board will take
them into account when it makes its parole decision.
Nos. 09-3317 & 09-3318 23
III. CONCLUSION
The judgment of the district court is A FFIRMED.
11-4-11