(dissenting in part; concurring in part). I disagree with the majority's analyses and conclusions as to the issue of Chartier's intent, and therefore I dissent as to that issue. The proper holding would be to find or infer as a matter of law that Dale Chartier intended to harm Loveridge, such that the intentional act exclusion of Chartier's homeowner's insurance policy1 effectively did not extend coverage to Chartier for his sexual acts with Cheryl Loveridge. Also, I would hold that the trial court's instruction to the jury on the intentional acts exclusion of the insurance policy was erroneous and unfairly prejudicial. As to the issue of punitive damages, I concur with the majority; Chartier and his insurance carrier are not liable for punitive damages.
Loveridge, an honor student, had just turned 16 years of age when she began working as a salesperson for a Stride Rite Shoes store in Milwaukee. The job was the first of her life. Within a few months, Stride Rite Shoes came under new ownership, and Chartier was brought in to manage the store at which Loveridge worked. Love-ridge was the only employee at the store prior to the change in ownership who retained her job after Chartier became manager.
Within a few months, Chartier, then in his forties and married, began his advances toward Loveridge. He *195would occasionally brush up against her body and would place his hands on her hips while passing behind her at the store counter. He told her she had nice legs. Love-ridge apparently felt Chartier was someone in whom she could put her trust, because she began to tell him private matters about her family. When Loveridge's mother found out that Loveridge was discussing such matters with Chartier, she telephoned him so as to put an end to the discussions. Chartier assured Loveridge he would not cause her any problems.
Chartier continued to cultivate his relationship with Loveridge. He scheduled his and Loveridge's work hours to coincide and often came to the store to see Loveridge even though he was not scheduled to work. In hope of engaging her in sexual relations, he secretly placed a mattress, blankets and pillow in the loft above the store. One Friday night after the store had closed to the public, he turned off the store lights before Loveridge could walk out. He grabbed her hand and kissed her. At Chartier's initiative, his sexual relationship with Loveridge advanced the next morning before the store opened, when, in. the loft, he performed cunnilingus on her and then proceeded to have intercourse with her. Until that Saturday morning, Loveridge had been a virgin. Char-tier's sexual relationship with Loveridge continued for many months. Chartier has admitted that his sexual acts with Loveridge violated the criminal law.2
*196On at least one occasion of performing cunnilingus on Loveridge, Chartier had a herpes cold sore on his lip. Loveridge at some point contracted the herpes virus in her vaginal area as a result of contact from Chartier. Clusters of blisters appeared and ulcerated. The herpes, which is not curable, advanced so as to cause Loveridge "excruciating" pain and discomfort, such that she did not urinate for two days at one point. Chartier then arranged for her to see his doctor who diagnosed the herpes.
Loveridge was "devastated" by this diagnosis. Nevertheless, Chartier saw to it that his sexual relationship with Loveridge continued. In fact, that relationship did not end until sometime after her seventeenth birthday, during which interim period she remained a child under Wisconsin law. Most of the sexual acts took place at the store, including one time during business hours. A few of the acts took place at Chartier's home and elsewhere. The end of the relationship was precipitated by the discovery by Loveridge's mother of medicine for Love-ridge's herpes. Loveridge, who was living at home with her parents, proceeded under pressure from her mother to tell her about Chartier's ongoing sexual relationship with her and her consequential contraction of herpes. Loveridge's mother responded by forbidding her from working at the Stride Rite store and from having any *197contact with Chartier. Effectively "thrown out" of her own house by her parents after this series of events, Loveridge moved into the home of a school classmate.
I would take it as a given that no rational, mature person can reasonably believe that an individual's performance of cunnilingus and sexual intercourse on a 16-year-old girl does not involve, on the part of that individual, some expectation of or intent to cause harm to the child. Such acts against children are not simply the result of "tender mercy," See J.C. Penney Cas. Ins. Co. v. M.K., 278 Cal. Rptr. 64, 68, 804 P.2d 689 (1991) or a misdirected desire for sexual gratification on the part of the perpetrator. At least most of the time, the perpetrator of such acts manifests by his conduct that he expects or intends harm to the child. Chartier himself proves the point for purposes of this case.
Chartier generally indicated to Loveridge that he wanted to have intercourse with her so that he would cause her to lose her virginity. Whether or not objectively the loss of her virginity would constitute an actual loss or harm or injury3 to Loveridge, it is implicit that Chartier intended it as such, and no reasonable jury could conclude otherwise.4 Because Chartier intended a harm to Loveridge and because Loveridge actually was *198harmed5 by his acts, the intentional acts exclusion of his homeowner's policy is applicable and precludes insurance coverage.
In addition, Chartier's intent to harm Loveridge by his acts can be inferred as a matter of law. As the majority recognizes, a court may infer that an insured intended to injure or harm as a matter of law " 'if the degree of certainty that the conduct will cause injury is sufficiently great.' " Majority op. at 169. "[A]n insured, cannot prevent a court from inferring his intent to injure as a matter of law by merely asserting that he did not intend to injure or harm." Id. at 170.
As the majority correctly points out, Wisconsin courts have appropriately approved of inferring an insured's intent to harm as a matter of law under circumstances where the insured has acted wrongfully in relation to the criminal law. Id. at 170-171. In particular, in K.A.G. v. Stanford, 148 Wis. 2d 158, 434 N.W.2d 790 (Ct. App. 1988) and N.N. v. Moraine Mutual Ins. Co., 153 Wis. 2d 84, 450 N.W.2d 445 (1990), it was proper to infer as a matter of law an insured's intent to injure when the act of the insured involved the sexual assault or molestation of a child contrary to Wisconsin law. Similarly, in Raby v. Moe, 153 Wis. 2d 101, 113, 450 N.W.2d 452 (1990), we indicated that an insured's intent to injure may be inferred as a matter of law, regardless of the insured's claimed intent, when the "criminal conduct of the insured is of such a dangerous character as to impose a substantial threat to the well-being and safety *199of innocent victims caught in the midst of that criminal conduct."6
Clearly, Chartier's criminal conduct imposed such a "substantial threat" to Loveridge as a child in the eyes of the law. The degree of certainty that the conduct would cause injury was sufficiently great. In fact, in at least some ways, the threat and actual harm faced by Love-ridge was greater than that faced by the children in K.A.G. and N.N..
Perhaps most obviously, Loveridge faced a substantial threat and incurred an actual injury in terms of the herpes Chartier transmitted to her by his criminal conduct. The fact that Chartier's criminal conduct seriously harmed her well-being is evident from the "excruciating" pain the herpes caused her and will continue to cause her whenever its symptoms recur. Indeed, her overall well-being has been affected so adversely that she has deemed it worth her time and trouble to base this lawsuit on that very injury.7
Moreover, as a direct result of Chartier's criminal conduct, Loveridge faced the substantial possibility of being impregnated by Chartier.8 Loveridge herself recog*200nized the substantial risk that Chartier might impregnate her. At one point, she told Chartier that she considered the particular form of birth control that he was using to be unsafe insofar as it might not prevent a pregnancy; she said she wanted him to use some safer method. Under the circumstances of this case, a pregnancy clearly would have constituted a harm to Love-ridge's physical and material well-being. The requirement that there be some "substantial certainty" of harm developing in order to infer intent to harm does not mean, as the majority in effect argues, that there must be mathematical certainty of harm. In this case, there was, as a matter of law, a substantial certainty that pregnancy could have resulted. The substantial certainty of this *201particular harm was sufficiently great so as to warrant an inference of intent to harm on the part of Chartier.
In addition to facing these injuries, Loveridge faced substantial threats in terms of her psychological and emotional well-being, to which threats she was particularly vulnerable in light of her young age and lack of prior sexual experience.9 At 16 years of age, Loveridge simply was unprepared to handle the situation presented *202her by Chartier. Looking back years later, she said of Chartier's advances and sexual relations with her:
The whole thing was a big scam. He manipulated me right from the start. He was an excellent salesman and he used his skills on me. He got my trust. He won me over and then it was just — it was just so gradual, I didn't even realize that it was happening until it was too late.
She also testified that:
I knew it was wrong but I didn't know what to do. I was confused. I trusted him. I didn't think he would hurt me. I really didn't think he would hurt me.
Her words imply that Chartier in fact did hurt her in more than a physical way. Indeed, one of the injuries she suffered was that of unmitigated fear as to the possible consequences of Chartier's actions. In this regard, she said:
I was scared to death ... I was afraid I might have gotten pregnant, you know. I was scared my parents would find out. They had always told me that if anything like that ever happened before I was married, they would throw me out of the house . . . And I didn't know what to do.
Another fear that Loveridge testified to having was that of others, in addition to her parents, finding out about Chartier's relationship with her. She stated that she would "be humiliated" if anybody learned of the sexual encounters.
Following from Loveridge's own testimony, she must have been humiliated indeed upon being pressured by her mother to tell her of Chartier's acts toward her. Furthermore, she was harmed by being effectively "thrown out" of her own house by her parents. She was *203also humiliated when others discovered the fact of the sexual encounters.
These actual and potential injuries, and Loveridge's corresponding fears that harm would result to her, all constituted substantial threats to her well-being resulting from Chartier's criminal conduct. I submit that these many and various harms and threats thereof were inherent in the acts committed by Chartier against Loveridge in violation of the criminal law such that in committing the acts Chartier intended the harms. As the majority acknowledges at 179, even if Chartier intended only to injure Loveridge emotionally and mentally, his insurance policy precludes coverage for the transmission of the herpes virus.
My position is consistent with the policies and goals of the people of Wisconsin as stated by the state legislature. Implicit in the legislature's determination that children must be protected from acts such as those committed by Chartier against Loveridge is a determination that at least some harm is inherent in and inevitably results from those acts.10 Sexual relations with a child contrary to Wisconsin law is thus, by itself, the same as intent to harm the child for purposes of the instant case. The act is the harm and the intent to harm. See M.K., 278 Cal Rptr. at 73. The fact that Chartier professes not to have, strictly speaking, intended some harm or loss to Loveridge is completely irrelevant. One who violates the statutes of this state prohibiting the sexual abuse of children should not be able to disclaim an intent to harm his victim.
In attempting to distinguish N.N. and K.A.G., the majority says that:
*204[IJmplicit in the holdings of N.N. and K.A.G. is a finding that a sexual assault upon a 9-year-old child or a 6-year-old child cannot be consensual. In contrast, in the case at bar, it is undisputed that Love-ridge consented to Chartier's sexual contact with her.
Majority op. at 172. The majority never explains the relevance of Loveridge's "consent" to Chartier's violation of the criminal law.11 In fact, there is no practical distinction to be made: under secs. 944.15(2) and 944.17(2), Stats. 1983-84, a child victim is unable to "consent" to another's violation of the statutes such that the violation is in any way nulled and voided. The statutes indicate that no such "consent" can effectively be made.
As a practical matter, even if the question of Love-ridge's "consent" is relevant, it is so in a way that undercuts the majority opinion. In the majority's own words, Loveridge's "consent" pertained only to the "sexual contact" that Chartier had with Loveridge. That is, Love-ridge only consented to the contact; she never consented to having the herpes virus transmitted to her by that contact or to being harmed in other ways by that contact. She did not and could not consent to having the virus transmitted to her because she never even knew Chartier had the virus. She never knew because Chartier failed to so inform her.12 Nor did she or could she con*205sent to the emotional and mental harms that resulted to her from Chartier's actions, because, as a child, she had no meaningful appreciation for the possibility and reality of those harms. Thus, even her "consent" to sexual contact was no consent at all for purposes of this case. There being no consent, the majority cannot distinguish N.N. and K.A.G. as it desires.
The majority treats sexual acts criminally perpetrated against children as though they amounted to the moral and practical equivalent of deciding what clothes to wear. Insofar as human actions and the statutes of this state have meaning, the majority errs. Wisconsin courts should infer an insured's intent to injure as a matter of law where the insured violates the law pertaining to sexual acts committed against children.
I also submit that this court should hold that the trial court's instruction to the jury on the intentional acts exclusion of the insurance policy was erroneous and unfairly prejudicial.13 There is abundant credible evidence in the record from which the jury could have rea*206sonably concluded that Chartier intended to injure Love-ridge in ways other than simply the transmission of the herpes virus to her, and the defendant insurance company was prejudiced by the circuit court's refusal to give its proposed instructions and special verdict questions which took into account those other ways that injury or loss or harm were "intended" to result to Loveridge.14
In the first place, consistent with my discussion of the first issue, Chartier's very violation of the criminal law in his sexual relations with Loveridge raises an inference that he intended to harm her beyond simply giving her the herpes virus. In addition, there is abundant evidence, referred to above, indicating that he subjectively intended to cause an injury or loss to her by having her lose her virginity. Moreover, after their first sexual encounters, Chartier demanded of Loveridge that she not disclose their sexual relationship. Under the circumstances, this constitutes evidence of an intent on his part to exert psychological pressure on her. Although he never explicitly threatened to fire her from her sales job if she disclosed the fact of the encounters, there is clearly evidence by which a jury could conclude that an unspoken threat of that nature was implicit in his demands. In and of itself, such a threat amounts to an intent to harm. Also, at trial, Chartier testified to believing that Love-ridge was stealing from the store till. According to his testimony, he did not raise the fact of this belief to anyone until it became clear to him that Loveridge, after her mother discovered the relationship, might bring suit against him. As he explained, he raised the subject of his belief of her stealing so as to discourage any lawsuit against him by Loveridge. In effect, his actions were strong evidence of an intent to blackmail Loveridge, to *207take unfair advantage of a situation unfavorable to her which he had allowed to develop and then encouraged. This amounts to strong evidence of an intent to harm Loveridge.
The circuit court thus erred in giving the instructions and special verdict questions it gave on the intentional acts exclusion of the insurance policy and in not including the instructions and special verdict questions offered by the defendant. Because there is more than a reasonable possibility that the circuit court's error was unfairly prejudicial to the defendant, I would reverse and remand on this issue insofar as the court has not found or inferred intent to harm on the part of Chartier which finding or inference would render this issue irrelevant.
I also believe that the majority's decision is contrary to the public policy of preventing the spread of sexually transmitted diseases such as herpes. The majority never expressly acknowledges there is such a policy; however, given sec. 143.07, Stats.,15 and the fact that under Wisconsin law the negligent transmission of sexually transmitted diseases is actionable, it is clear that such a policy exists.
The majority ignores this policy. It effectively encourages individuals such as Chartier to develop a care-free approach to sexual relations that will result in a greater propensity for diseases such as the herpes virus to be spread among society, contrary to state policy.16 *208That is, because of the majority opinion, an individual such as Chartier will not be encouraged to stop the spread of such diseases to others because as a practical matter he stands little or nothing to lose by not conforming his conduct to the policies of the state.
The majority's assertion that, "[t]aken to its logical conclusion," the argument of the defendant insurance company must be that motor vehicle insurance "promotes unsafe driving," majority op. at 185, is simply without merit. Anybody driving an automobile is himself at risk of injury, and so has concern for his own well-being in operating his vehicle. Accordingly, he has a self-interest in safe driving and, thus, he tends to drive safely. In contrast, Chartier was risking no particular harm to his physical well-being when he sexually engaged Loveridge on the mattress in the loft of the Stride Rite store. Personally, he was risking nothing, and so he was not encouraged to act thoughtfully and carefully. Because she was a virgin, even the risk of her transmitting a venereal disease to him was nonexistent, and he must have known so.17
Thus, the majority errs in this regard also. This court should favor the public policy of preventing the spread of sexually transmitted diseases.
I agree with the majority that, on the merits, punitive damages should not be awarded in this case.18 This *209conclusion is consistent with my position that this court should find or infer that Chartier intended harm to Loveridge.
The main distinction to be drawn here has its basis in the different burdens of proof involved. In order for the intentional acts exclusion of an insurance policy to be held to apply in a given case, it must be shown by only a preponderance of the evidence that harm was intended. In contrast, for punitive damages to be awarded, the plaintiff must prove by clear and convincing evidence that the defendant's conduct was reckless, willful or wanton. Brown v. Maxey, 124 Wis. 2d 426, 433, 369 N.W.2d 677 (1985). While as a matter of law Char-tier intended harm to Loveridge, there is insufficient evidence according to which a jury might reasonably find that Chartier, clearly and convincingly, acted recklessly, willfully, or wantonly.
In summation, I would hold that Wisconsin courts should infer that one intends harm to his victim as a matter of law when he violates state law against sexual intercourse with a child, regardless of the child's age. I would also hold that the circuit court's instruction to the jury on the intentional acts exclusion of the insurance policy was erroneous and prejudicial. I would also hold that public policy prevents insurance coverage for negligent transmission of sexually transmitted diseases.
I would thus reverse the circuit court as a matter of law. At the very least, the case should be remanded for a new trial incorporating proper jury instructions and special verdict questions. As to the issue of punitive damages, I agree with the majority that Loveridge is not entitled to collect punitive damages that would be paid by Chartier's insurance company.
The intentional acts exclusion of Chartier's homeowner's insurance policy sets forth that liability coverage does not apply to "bodily injury . . . which is expected or intended by the insured."
pecifically, by engaging Loveridge in sexual activity, Char-tier violated secs. 944.15(2) and 944.17(2) 1983-84, Stats. See majority op. at 163 n.2. Subsequently, the Wisconsin legislature has reaffirmed its position in favor of prohibiting sexual contact with unmarried individuals between 16 and 18 years of age. In fact, the legislature created a new chapter of the Wisconsin Criminal Code, entitled "Crimes Against Children," which went into effect in 1989. Section 948.09 1989-90 reads:
*196Sexual Intercourse With a Child 16 or Older. Whoever has sexual intercourse with a child who is not the defendant's spouse and who has attained the age of 16 years is guilty of a Class A misdemeanor.
This new chapter defines "sexual intercourse" very broadly. See sec. 948.01(5) (1989-90). There is no question but that, committed today, Chartier's sexual acts with a child such as he committed with Loveridge in 1984 would be contrary to the criminal law.
For purposes of this opinion, the terms "harm," "injury," and "loss" all refer to the word "injury" contained in the intentional acts exclusion of Chartier's homeowner's insurance policy. Cf. Hennekens v. Hoerl, 160 Wis. 2d. 144, 465 N.W.2d 812 (1991) majority op. at 153 n.7.
Contrary to the assertion by the majority at 180-181, the record does not establish when Chartier learned that Loveridge was a virgin. Nor have I argued, as the majority indicates I do, that Chartier was interested solely in causing Loveridge to lose her virginity. Having an incorrect premise, the argument of the majority contained within the paragraph at 180-181 fails.
It is not disputed that Chartier harmed Loveridge at least by transmitting the herpes virus to her. The fact that the particular harm resulting to the victim might not have been of the same character or magnitude as was intended by the insured is of no consequence. Pachucki v. Republic Insurance Co., 89 Wis. 2d 703, 714, 278 N.W.2d 898 (1979).
Contrary to the assertion by the majority at 176, I do not "ignore" any effect of Poston v. U.S. Fidelity & Guaranty Co., 107 Wis. 2d 215, 320 N.W.2d 9 (Ct. App. 1982). As the majority indicates, this court "recognized the validity" of Poston in Raby. Majority op. at 175. By relying as I do on Raby and employing at various points throughout this dissent its operative language of "substantial certainty" concerning the possibility of harm to the victim, which language Raby took from Poston and Pachucki, I have effectively dealt with Poston. See my concurring opinion in Raby, 153 Wis. 2d at 115.
Judging from the size of the damage award made by the jury, it is clear that the jury also considered the injury to affect her well-being substantially.
The majority says that because "birth control" was used by *200Chartier, it simply cannot be substantially certain that a pregnancy might nevertheless have resulted. Majority op. at 174. The majority ignores certain realities of birth control.
As a prominent federal court has noted: "The frequency of contraceptive failure is unexpectedly high." McRae v. Califano, 491 F. Supp. 630, 672 n.37 (E.D.N.Y. 1980). Failure rates in the first year of exposure to the risk of pregnancy have been authoritatively calculated for certain artificial birth control methods as follows:
Method Percent Failing
Pill CD
IUD (N H
Condom 00 H
Diaphragm CO (N
Foam H CO
Douche O) CO
Moreover, as the federal court noted, the pill and IUD "are thought to create serious medical risks." Id.
As Loveridge stated, she was experiencing a certain psychological or emotional "confusion" resulting from Chartier's advances on her. In this regard, it is becoming well documented that a high proportion of children who are sexually mistreated by adults develop psychological problems later in life such as borderline personality disorders and post-traumatic stress disorders. See generally, Alfie, Shattered Innocence: Childhood Sexual Abuse Is Yielding Its Dark Secrets to the Cold Light of Research, Psychology Today, Feb. 1987, at 54.
The majority would apparently suggest that the article I cite immediately above is written only in regard to "2- and 3-year old victims" of sexual molestation and abuse perpetrated by adults. See majority op. at 175. Such a suggestion is in fact erroneous. The study discussed in the article involved research into adult sexual molestation and abuse against children of all ages up to "the age of 18." Alfie at 54.
The article proceeds to indicate that certain research shows that child "victims are most traumatized if their abuser was between the ages of 26 and 50." Id. As I indicated supra, that is exactly the age group of which Chartier was a member when he committed his crimes against Loveridge.
Clearly, the Psychology Today article offers strong scientific evidence to show that there was a "substantial certainty," see majority op. at 168 that a child such as Loveridge would suffer "psychological and emotional harm," the likes of which the majority says is sufficient to infer intent to harm. For its part, the majority does not offer any evidence to counter the thrust of the Psychology Today article.
If this case is any example, that determination is a particularly realistic one.
The fact that Loveridge's "consent" resulted in Chartier committing "only" a misdemeanor crime instead of a felony crime does not, as the majority suggests (majority op. at 174 n.8) make the "consent" relevant for purposes of the case at bar. Chartier still violated the criminal law, whether or not Loveridge "consented."
Clearly, Chartier knew or should have known that he could infect Loveridge with the virus. He knew that the herpes that caused him to have cold sores and genital herpes are related; *205moreover, he knew that diseases of that nature can be sexually transmitted from one person to another.
For example, when Loveridge first described to Chartier the problem she was suffering in her pubic area, Chartier indicated to her that she might have contracted lice. He indicated that he had just been treated for lice in his pubic area and implied that he had infected her with the "lice" through their sexual relations.
Further evidence of Chartier's prior knowledge of the possibility that his herpes could be transmitted to Loveridge lies in the fact he pointed to a cold sore on his lip when Loveridge questioned him about the problem she was experiencing. As he pointed, he said to her, "This is herpes. This is." He then indicated to her that herpes is probably what she had.
The instructions read by the trial court to the jury, as well as special verdict question 9, are set forth in the majority opinion at 177-178.
The defendant's proposed jury instructions and special verdict question are set forth in the majority opinion at 178-179.
The majority opinion at 183-184, sets forth parts of sec. 143.07, Stats. The statute prescribes, inter alia, that any court of record may commit a person infected with a sexually transmitted disease to an institution for treatment until the disease is no longer communicable.
The majority must concede that, at least at the margin, the conduct of society generally speaking is based upon a series of conscious choices made by rational individuals who are generally *208informed as to the policies of the state and whether or not as a practical matter those policies are enforced by state officials.
In any case, there clearly was no risk that she could harm him by giving him the herpes virus insofar as he was already so infected.
It continues to be my fundamental position that public policy requires that punitive damages not be covered by insurance. See my dissent in Brown v. Maxey, 124 Wis. 2d 426, 451-52, 369 N.W.2d 677 (1985).