Department of Health and Family Services
Division of Children and Family Services

                 DCFS Memo Series 2004-23
               December 16, 2004




Area Administrators/ Human Services Area Coordinators
Bureau Directors
County Departments of Community Programs Directors
County Departments of Developmental Disabilities Services Directors
County Departments of Human Services Directors
County Departments of Social Services Directors
Licensing Chiefs/Section Chiefs
Tribal Chairpersons/Human Services Facilitators


Kitty Kocol

 Document Summary

All reports of mutual sexual activity must be documented on the Child Welfare Services Intake, rather than the Protective Services (PS) Report since there is no victim or maltreater. The information gathered is documented on a child welfare assessment template, rather than the Initial Assessment – Secondary/ Non-Caregiver format. This memo does not alter any of the requirements of Memo Series DCFS 99-12, "Case Finding Determinations of Cases of Child Abuse and Neglect." As a part of the PEP process, there will be a broader practice discussion in an effort to provide greater clarity and direction related to case findings in CPS cases.



The statutory definition of child abuse includes sexual activity between children where at least one of the children is less than 16 years of age. The sexual activity can be mutual and completely devoid of any elements of assault, coercion, or exploitation; but it is defined as sexual abuse because, under the statutes, sexual activity with a person under age 16, regardless of consent, is a felony that is referenced under the statutory definition of child abuse. However, children under 16 do, in reality, have consensual sexual activity.

The term "mutual sexual activity" applies only to cases of sexual contact or sexual intercourse under s.948.02 or s.948.025, Stats., that occurs between peers and that is completely devoid of any elements of assault, coercion, or exploitation. The case finding of Substantiated/Mutual Sexual Activity was developed in 1996 specifically to differentiate these cases from cases of coercive or exploitative sexual assault as well as to indicate that children in these cases were not to be identified as maltreaters. Although the statutes require that the CPS agencies "determine…whether abuse or neglect has occurred or is likely to occur" [ref. s. 48.981(3)(c)4., Stats.], there is no statutory requirement to determine whether a particular person maltreated a child. DCFS 99-12, Case Finding Determinations in Cases of Child Abuse and Neglect, states, in part: "In cases determined to be Substantiated/Mutual Sexual Activity, no person is identified as a maltreater." Complete information about when the case finding of Substantiated/Mutual Sexual Activity applies can be found in DCFS 99-12.

Prior to the advent of eWiSACWIS, county agencies and BMCW reported non-identifying data regarding each screened-in CPS report on a form referred to as the CFS-40. This data is used to develop the annual report referenced in s. 48.981(9), Stats. When county agencies transitioned to eWiSACWIS, the CFS-40 became obsolete, as all relevant data is embedded in the automated case file.

However, unlike the CFS-40, which contained no identifying information as it was submitted to the state, eWiSACWIS does contain identifying information. In addition, the format in eWiSACWIS for documenting child abuse and neglect report information (the PS Report) contains required data fields for naming the alleged victim and alleged maltreater. This format does not fit cases where there is no victim and no maltreater. Therefore, the methods for documenting these cases on eWiSACWIS had to be altered.

The strategy for documenting mutual sexual activity in eWiSACWIS has been a cumbersome process of avoiding the alleged maltreater data fields and has not been successful. Confusion about correct documentation of such cases in eWiSACWIS has been substantial and has continued despite information from the eWiSACWIS Project, the Bureau of Programs and Policies, and Area Administration on how to handle the documentation correctly. Therefore, the PS Report will no longer be used to document reports of alleged mutual sexual activity.

All policies related to determining mutual sexual activity in DCFS 99-12 are still in effect. This memo addresses only where and how these cases are to be documented.


The following documentation requirements for reports of mutual sexual activity are effective December 20, 2004:

  • Cases of reported mutual sexual activity must be documented on a Child Welfare Services Intake, not a PS Report. "Child Welfare - Mutual Sexual Activity" is available on eWiSACWIS as an Intake type for Child Welfare Services Intake as of December 20, 2004, so that the number of mutual sexual activity reports may be tracked. Coding for mutual sexual activity has been removed from the PS Report and the Initial Assessment - Secondary/Non-Caregiver documentation windows.

  • The assessment information should be documented on the template the county or BMCW uses for child welfare cases. A specific format is being developed in eWiSACWIS for use with these cases, but is not currently available. In using their child welfare services assessment format, county agencies and BMCW must still adhere to the Standards in completing and documenting their assessment.

  • All statutory requirements under s. 48.981 still apply to these cases, even though they will be documented on the windows and templates in eWiSACWIS for child welfare cases. This includes completing an assessment within 60 days, making a determination as to whether abuse or neglect occurred, and referral to law enforcement according to statute and each county agency’s MOU with its law enforcement agencies.

    The letter for responding to the mandated or relative reporter can not be accessed from the child welfare windows at this time. Changes to eWiSACWIS will be made to facilitate this function. Agencies will have to access the letter for responding to mandated or relative reporters off-line until the changes in eWiSACWIS are accomplished.

  • A separate Child Welfare Services Intake must be created for the family of each involved child under the age of 16. A separate intake for each child’s family is necessary for the following reasons:
  • The purpose of CPS is to determine, with each family, if the child is in need of protection or services.

  • The private information of two different families should not be documented in the same case record as it may result in both families having access to each other’s confidential information.

  • Each family can have very different responses to the assessment, resulting in different decisions and activities for each family on the part of the CPS agency.

    [Note: A Child Welfare Services Intake is not needed for any person involved in the mutual sexual activity who is 16 years of age or older, as s. 948.02 and s. 948.025 , Stats., do not apply to a person who is 16 years of age or older.]
  • The name and other identifying information of the other person involved in the sexual activity with the child under the age of 16 should not be included in the child’s family record, even if the other person is also under the age of 16. Inclusion of that person’s name gives that person access to the case record of the family of the other child.

  • If the assessment reveals that the sexual activity was not mutual or uncovers additional forms of maltreatment as defined under s. 48.02(1), Stats, or s. 48.981(1)(d), Stats., a PS Report must be documented for the victimized child and that child’s family. Duplicate documentation can be avoided by using the copy-and-paste feature. Documentation of the initial assessment should be captured primarily in the windows for the Initial Assessment – Secondary/Non-Caregivers format. Agencies are not expected to duplicate their documentation of assessments by documenting in both the CPS and CW tracks. In closing out the CW assessment, the record must contain documentation that further information can be found in PS records.

  • Reports of coercive or exploitative sexual assault by a peer will continue to be documented on a PS Report. If it is later determined through the initial assessment that the sexual activity was mutual and not assaultive, the sexual abuse allegation must be unsubstantiated. In these cases, there is no need to create a Child Welfare Services Intake(s) for the mutual sexual activity. Instead, the determination that the activity was mutual is documented in the narrative of the Initial Assessment – Secondary/Non-Caregivers windows.


Area Administrator


Mary Dibble
Child Protective Services Specialist
P.O. Box 8916
Madison, WI 53708-8916
Phone: 608-267-2073


County CPS Supervisors

The Department of Children and Families, protecting children, strengthening families, building communities.