(dissenting). There is something fundamentally wrong in this case. I conclude that the majority opinion's interpretation of the law of double jeopardy is directly contrary to the established law of this state and further conclude that the plea agreement *956in this case is against public policy and is therefore void ab initio. I therefore dissent. I feel compelled to begin by bringing to light facts in the record, as shown by letters and the presentence report, which the majority opinion ignores.
The presentence report (which had been opened before it was received by these chambers) is before this court as part of the record transmitted on appeal and, as even the majority acknowledges, was part of the reasoning used by the trial court when it vacated the no-contest pleas and reinstated the four felony charges. One need not be a juris doctor to understand why the trial court was shocked by the disclosures contained in that report, a report detailing a course of unspeakable sexual abuse of this child by the defendant before the child became 16 years of age.
On January 6, 1984, the defendant, who was 39 years old, had been married, fathered four children, divorced, and then remarried almost two years previously. The defendant had earned a master's degree and owned a Corvette shop.
On January 6, 1984, the victim, born February 22, 1968, was a 15-year-old sophomore in high school. She was a friend of the defendant's children by his prior marriage and had been welcomed into the defendant's home as such for years. The victim lived in the same neighborhood as the defendant.
From about the time the victim had turned 11 years of age, she had begun to spend significant amounts of time at the defendant's home. As a result, the victim became dependent upon the defendant and his wife. Eventually, the defendant became such a father figure to her that she called him "Poppa C." For a number of years before the night in question, the victim slept over *957at the defendant's home at least one night each weekend, visiting with the defendant's children.
On January 6, 1984, the victim and her younger sister were visiting the defendant's children and sleeping over at the defendant's home. After dinner, the defendant, his wife and two of his children, the victim, and the victim's younger sister were all watching rented movies on the television in the defendant's living room. The defendant was seated on a couch with the victim. The defendant's wife, his children, and the victim's younger sister were all seated nearby in the same room. The victim was half asleep, was lying on her back, and had her legs lying across the defendant's lap. While everyone else in the room was concentrating on the movie playing on the television, the defendant was concentrating on the 15-year-old girl lying next to him.
The defendant surreptitiously maneuvered his hand under the blanket that was covering her and placed his hand on her leg. Being careful that no one else in the room noticed, he slowly moved his hand up the victim's leg, massaging and caressing her until he had his hand on her vaginal area. The victim was startled and became awake, but the defendant whispered to her to pretend that she was still sleeping.
The defendant then proceeded to sexually assault the victim by rubbing her vaginal area through the pair of sweatpants that she was wearing.1 Not satisfied to be *958massaging this 15-year-old's vaginal area through her sweatpants, the defendant slowly untied the drawstring of her sweatpants and manipulated his hand inside her panties. All the while making sure that his family and the victim's younger sister didn't take notice, he then began to sexually assault her by inserting his finger into her vagina.
As one rented movie ended and another began, the other people in the room drifted one by one upstairs to bed. The defendant told his wife that he would be up to bed in a while; he just wanted to see how the next movie came out. When the defendant and the girl were finally alone in the room, the defendant sexually assaulted the victim by fondling her breasts and continued to sexually assault her by inserting his finger into her vagina. Eventually the defendant sexually assaulted the victim by guiding her into performing fellatio upon him. The defendant then took the victim into the basement of his home and again sexually assaulted her by performing cunnilingus upon her. Thereafter, the defendant sexually assaulted the victim almost every other day: by having her perform fellatio upon him and by his performing cunnilingus on her on the couch, in the bed, on the floor, in the basement, and in a vehicle.
*959The victim's consent to the ongoing sexual assaults would only become an issue after the victim's 16th birthday, which occurred on February 22, 1984. Consent is not an issue prior to that date because pursuant to sec. 940.225(4), Stats., consent can only be given by a person who is competent to show by words or overt actions that she is freely giving agreement to have sexual intercourse or sexual contact. Persons under the age of 16 years are incompetent to give consent to having sexual intercourse or sexual contact, similar to persons who suffer mental illnesses or who are unconscious, see sec. 940.225(2)(c)-(e) and (4), Stats. 1983-84.
The pattern of sexual activity between the defendant and the victim continued until April 7, 1984, six and one-half weeks after the victim had turned 16 years old, when, according to the victim, the defendant had penis-vaginal sexual intercourse with her for the first time. The defendant thereafter continued his sexual abuse of the victim for a period of over four years.
She saw a counselor in March of 1988, who told her that she had been abused. She had started to have nightmares where she would awaken screaming, shaking, and sweating, and then she would vomit. The victim felt isolation, shame, and "different than" her peers.
For all of the conduct on the part of the defendant, which robbed the victim of her adolescence and innocence and caused her significant psychological and economic harm,2 the Outagamie County District Attorney's *960office filed an information on October 6, 1989, consisting of only four Class C felony counts. All four counts related only to the acts of the defendant on the night of January 6, 1984. No other counts were filed despite the victim's complaints about the defendant's sexual assaults of the victim after January 6, 1984. At arraignment after a preliminary hearing on October 6, 1989, the defendant pleaded not guilty to all four counts of the information.
At a hearing on December 11, 1989, the circuit court was informed by the assistant district attorney of a proposed plea agreement to dismiss felony counts 3 and 4 of the information, to reduce felony counts 1 and 2 to misdemeanors with a cap of 75 days' jail time, and to allow probation to be transferred to Texas. The defendant's attorney advised the court that the plea agreement also prevented the district attorney's office from bringing charges for any other offenses committed by the deten-*961dant against either the victim or her younger sister, who also had been assaulted by the defendant. The victim stated that she was present in court on that day and was shocked by the plea bargain. She had not previously been advised of the plea bargain and only knew about it when it was presented in open court. She was not asked to comment about the plea bargain. The entire proceeding took less than 20 minutes.
The majority opinion would like readers to infer, by footnoting the victims' rights statute, that the victim had an opportunity to express her dissatisfaction with the plea to the circuit court. Majority op. at 931 n.14. Such an inference should not be made. The verbatim transcript of the relevant portion of the plea hearing is as follows:
[ASSISTANT DISTRICT ATTORNEY]: Your Honor, [the victim] indicated she'd like to be present for that [sentencing] hearing, and it would be easier for her to come back on a Friday or a Monday, and would request to see if we could get that date on a Friday or Monday.
THE COURT: Are you in school, ma'am?
[THE VICTIM]: Yes.
[THE VICTIM]: University of Minnesota in Minneapolis.
THE COURT: And what is your — Don't you have any holiday break?
[THE VICTIM]: Oh, yes, it would just be a little bit inconvenient. I will be here regardless of the date, but I was asked if I had a preference of the date.
THE COURT: Are there classes going on at that time?
[THE VICTIM]: Yes. We are on a trimester. Our nroalr orine fno 9n/i
[DEFENDANT'S ATTORNEY]: I might point out, Your Honor, the prior January 15 is an official *962Martin Luther King Day, I don't know if Minnesota where [the victim] goes to school has that same date. In effect it would be, if they did have that same observance, would be the first school day of that week, so I guess it would be equivalent to a Monday if they did have that same observance.
THE COURT: Well, I don't want to discourage your presence, but it looks like you can be available reasonably.
[THE VICTIM]: That's okay.
THE COURT: So I am going to keep it on that date. The 15th or 16th?
[DEFENDANT'S ATTORNEY]: Sixteenth. Thank you.
As can easily be seen from the transcript, the victim was not given the opportunity to express her dissatisfaction with the plea to the circuit court.
The issue that I dissent from, whether double jeopardy and due process prevent the reinstatement of counts 3 and 4, is an issue of constitutional fact. This court reviews questions of constitutional fact without deference to the decisions of the lower courts. State v. Anderson, 165 Wis. 2d 441, 447, 477 N.W.2d 277 (1991).
This court has consistently held that jeopardy "attaches" upon the circuit court's acceptance of a guilty or no-contest plea.3 Jeopardy also attaches when a witness is sworn in a trial to a court without a jury or when the jury has been sworn in a jury trial. Section 972.07, Stats. However, until today, this court has never held that jeopardy attaches to separate counts of an information to which a defendant had pleaded not guilty, which *963were dismissed prior to a defendant's trial, and to which a court had not accepted a defendant's guilty or no-contest plea. The result reached by the majority today is directly contrary to State v. Waldman, 57 Wis. 2d 234, 203 N.W.2d 691 (1973), and Montgomery v. State, 128 Wis. 183, 107 N.W. 14 (1906). My examination of Wald-man and Montgomery, in conjunction with U.S. Supreme Court precedent, convinces me that the majority reaches an erroneous result today.
In Waldman, this court stated that "[a] plea of not guilty does not trigger double jeopardy." Waldman, 57 Wis. 2d at 238. Therefore, following Waldman, jeopardy never attached to counts 3 and 4.
In Montgomery, this court stated that "the accused must actually be put on trial — that is the trial must have commenced — before he can be said to have been in jeopardy." Montgomery, 128 Wis. at 195. The defendant here stands in a similar position as the defendant in Montgomery with regard to counts 3 and 4 which were dismissed: he was never in jeopardy as to counts 3 and 4.
The U.S. Supreme Court's precedent also supports my conclusion that jeopardy never attached to counts 3 and 4. In Serfass v. United States, 420 U.S. 377 (1975), the Court held that jeopardy does not attach to charges in an indictment that are dismissed prior to a defendant's being put to trial. Serfass, 420 U.S. at 389. The federal district court in Serfass had granted the defendant's motion to dismiss the indictment prior to trial. The Supreme Court held that " [wjithout risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy." Id. at 391-92. The Court concluded its analysis by noting that it is a "fundamental principle that an accused must suffer jeopardy before he can suffer double jeopardy." Id. at 393.
*964It is apparent from reading the information that the offenses charged in counts 3 and 4 were separate and different acts from the offenses which were charged in counts 1 and 2, which were the reduced counts. See State v. Eisch, 96 Wis. 2d 25, 31-34, 291 N.W.2d 800 (1980) (four acts of sexual intercourse, each different in kind from the others and differently defined in the statutes, constitute four separately chargeable criminal offenses, when all of the acts took place at the same location within a period of time that did not exceed two and one-half hours). I would therefore conclude that double jeopardy does not bar the further prosecution of counts 3 and 4.
In addition, no interest of this defendant protected by the double jeopardy clause is implicated by allowing continued prosecution of counts 3 and 4. The double jeopardy clause offers protection against a second prosecution for the same offense after acquittal; it protects against a second prosecution for the same offense after conviction; and it protects against multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. at 498. The double jeopardy clause therefore protects the principles of fairness and repose: multiple trials against a defendant for one criminal act are prohibited, and the state cannot sentence a defendant beyond the limits imposed by the legislature. Id. at 498-99. Here, none of these protections would be implicated by allowing reinstatement of counts 3 and 4. There has been no acquittal on counts 3 and 4. Counts 3 and 4 are different offenses than what was charged under counts 1 and 2, so there would not be a second prosecution or multiple punishments. As the defendant committed four felonious criminal acts, the continued prosecution of counts 3 and 4 would not be a multiple trial for one criminal act nor *965would it be expanding the defendant's sentence beyond the limits imposed by the legislature.
I conclude that double jeopardy does not prevent the reinstatement of felony counts 3 and 4 of the information. Counts 3 and 4 were dismissed by the circuit court prior to accepting the defendant's plea, and, therefore, jeopardy never attached to counts 3 and 4. In deciding that these counts cannot be reinstated, the majority opinion reaches a result that comports with neither the U.S. Supreme Court's precedent nor the precedent of this court.
The reinstatement of counts 3 and 4 is required in this case, not only because they are not barred by double jeopardy, but also because to do otherwise would be against public policy. In Young v. State, 49 Wis. 2d 361, 182 N.W.2d 262 (1971), we stated that in certain circumstances a court must vacate a previously accepted plea agreement if the plea agreement is against public policy. In Young, the prosecutor agreed to recommend probation in exchange for a no-contest plea. After the plea was accepted, the presentence report recommended commitment to the state correctional institution because of the defendant's adjustment difficulties and mental health problems. In responding to the defendant's assertion that the district attorney was bound to recommend probation regardless of what the presentence investigation revealed, we noted that such an agreement would have to be vacated as against public policy:
Even if the presentence report developed facts that made probation not in the best interests of the community or of the defendant himself, the district attorney, it is argued, bound himself to recommend what he no longer believed to be a proper disposition of the case. If this were in fact the plea agreement, reversal would he required, not because the agreement was *966not kept, but because the agreement was void as against public policy ab initio.
Young, 49 Wis. 2d at 369 (emphasis added).
The totality of the circumstances in this case and the egregiousness of the offenses as shown by the record before this court require that this plea agreement be considered void as against public policy. While there may not be a provable fraud in this case, it certainly appears as if there was some sleight-of-hand maneuvering here by the assistant district attorney and the defendant. I conclude that the plea agreement in this case is void ab initio.
This plea agreement is void as against the following public policies: sentencing defendants with penalties appropriate to the crimes committed; only allowing those plea agreements that are believed by the district attorney to be a proper disposition of the case; serving the public's interest in prosecuting child abusers; and concern for the needs and well-being of victims. After acknowledging the above public policies, the majority opinion implies that they are not significant and states that they are not relevant to this case because, according to the majority, the only relevant public policy is that a court should not consider a presentence investigation prior to conviction. Majority op. at 952-953. The majority opinion does not attempt to explain why the one public policy it hangs its hat upon is more important than the public policies listed above. When one considers and weighs all relevant public policies in this case, it is apparent that the plea agreement here is against public policy.
The proposed sentence of 75 days does not take into account the rehabilitative needs of this particular victim. The victim in this case has suffered significant psychological damage and needs to see the defendant punished *967as an important part of her therapy. The victim's psychologist stated:
The last issue I would like to respond to in this letter is the importance of [the victim's] need to hold Robert Comstock accountable for the harm and trauma he has caused her to experience. It has required a tremendous amount of personal courage and emotional energy for [the victim] to pursue legal options against her perpetrator. This is a way for her to appropriately express her anger and to reclaim a sense of personal power in her life. It is an important step toward her recovery. She needs to feel that her victimization is being taken seriously by the court system and that others will hold him accountable as well.
We have previously stated, in a unanimous opinion by Justice Abrahamson, who writes for the majority today, that not prosecuting an alleged child abuser for his or her acts "may inflict a greater harm on the child by allowing the alleged abuser to go free and by demonstrating to the child that the state of Wisconsin does not place a high enough value on the child's suffering to bring to justice the person alleged to have caused the suffering." State v. Gilbert, 109 Wis. 2d 501, 507, 326 N.W.2d 744 (1982).4 Today's majority opinion sadly abandons this concern for the victim's welfare and allows Mr. Comstock to get off with a virtual slap on the wrist for the heinous acts he has committed. Whatever *968due process interests the defendant has are far outweighed by the public policy concerns outlined above.
In addition, the cases that the majority opinion relies upon at 950 for the proposition that a "subsequent reprosecution of a charge dismissed as a result of a plea bargain is barred by elementary due process" are inapplicable to this case. The case of Nelson v. State, 53 Wis. 2d 769, 775, 193 N.W.2d 704 (1972), merely mentioned in dicta that other cases had so held. The cases cited by Nelson are Austin v. State, 49 Wis. 2d 727, 734-36, 183 N.W.2d 56 (1971); and Mallon v. State, 49 Wis. 2d 185, 189-90, 181 N.W.2d 364 (1970). In both Austin and Mallon the issue was whether a defendant could withdraw a guilty plea after uncharged offenses were "read in" to the record at the time of sentencing pursuant to the defendant's plea bargain. Austin and Mallon are therefore inapplicable to this case. The court of appeals decision in State v. Bond, 139 Wis. 2d 179, 187-88, 407 N.W.2d 277 (Ct. App. 1987), and the U.S. Supreme Court decision in Santobello v. New York, 404 U.S. 257, 262 (1971), both concerned the issue of binding the state to a prosecutor's promise, which is not the issue before the court today.
I would affirm that portion of the unanimous court of appeals decision which held that jeopardy did not attach to the two charges dismissed in this case and that, therefore, double jeopardy does not bar their reinstatement. In addition, I conclude that the plea agreement in this case is against public policy and is therefore void ab initio.
The manner in which this entire case has been handled by the district attorney is shameful. The sexual and psychological abuse suffered by this victim — when she was a child — cries out for justice, and this court now compounds the injustice.
*969For the reasons stated and because there is something fundamentally wrong in this case as determined by the majority, I dissent.
Each of the acts between the defendant and victim are sexual assaults pursuant to sec. 940.225(2)(e), Stats. 1983-84, which provides:
940.225 Sexual assault....
(2) Second Degree Sexual Assault. Whoever does any of the following is guilty of a Class C felony:
*958(e) Has sexual contact or sexual intercourse with a person who is over the age of 12 years and under the age of 16 years.
Pursuant to sec. 940.225(4), Stats. 1983-84, the victim's consent is not an issue under sec. 940.225(2)(e). Section 940.225(4) provides in part:
(4) Consent. 'Consent', as used in this section, means words of overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact. Consent is not an issue in alleged violations of subs. (l)(d) and (2)(c), (d) and (e) ....
According to a letter received by the circuit court from Chris Servaty, M.S., a licensed psychologist who was treating the victim, the victim exhibited the symptoms, issues, and feelings common to incest victims. The psychologist stated that she had ten years of experience in treating sexual abuse victims. The letter stated in part:
Because Mr. Comstock was in the role of caregiver/surrogate father *960to [the victim], he held power and authority over her. [The victim] was not in a position to consent to the sexual relationship given the power differential. As is the case with all incest victims the adult parental figure has responsibility to maintain appropriate sexual boundaries with children under their care. [The victim] was a very vulnerable adolescent, feeling estranged from her family of origin and in need of adult attention, caring, and direction. Mr. Comstock encouraged [the victim's] emotional dependency and exploited her vulnerability in order to meet his own needs.
[The victim] could not identify nor disclose the sexual abuse until she had received some distance and emotional detachment from Mr. Comstock. The dynamic of 'keeping the secret' is extremely common with incest victims. Fears of retribution, of not being believed, of being responsible for negative outcomes for the family, and feelings of guilt and shame prevent victims from disclosing or 'telling the secret'.
[The victim's] current recovery process will probably require several more years of therapy. The average range of treatment for incest victims is three to five years.
See State v. Waldman, 57 Wis. 2d 234, 237, 203 N.W.2d 691 (1973); Salters v. State, 52 Wis. 2d 708, 714, 191 N.W.2d 19 (1971); Hawkins v. State, 30 Wis. 2d 264, 267, 140 N.W.2d 226 (1966); and Belter v. State, 178 Wis. 57, 62, 189 N.W. 270 (1922).
See also State v. Jones, 151 Wis. 2d 488, 496, 444 N.W.2d 760 (Ct. App. 1989) ("where a minor child has been the victim of a sexual crime, and where the trial court finds that significant incarceration of the perpetrator of that crime will have a positive influence on the child's recovery from its effects," it is "especially" appropriate to consider the victim's rehabilitative needs at sentencing).