LRB-2409/1
JEO:jlg:lp
1999 - 2000 LEGISLATURE
March 15, 1999 - Introduced by Representatives Huebsch, Rhoades, Petrowski,
Hundertmark, Suder, Townsend, Pettis, Kestell, Montgomery, Gundrum,
Klusman, Musser, Porter, Goetsch, Albers, Freese, Owens, Ladwig, M.
Lehman, Staskunas, Turner, Sykora, Spillner, Kelso, Urban, Olsen, Jensen,
Handrick, Vrakas, Kaufert and Gard, cosponsored by Senators Darling,
Rosenzweig, Roessler and Drzewiecki. Referred to Committee on Judiciary
and Personal Privacy.
AB207,1,2
1An Act to repeal 948.05 (3); and
to amend 948.05 (1) (intro.) of the statutes;
2relating to: sexual exploitation of a child.
Analysis by the Legislative Reference Bureau
Under current law, a person is guilty of sexual exploitation of a child who has
not attained the age of 18 if the person does any of the following with knowledge of
the character and content of the sexually explicit conduct involving the child: 1)
employs, induces, entices or coerces any child to engage in sexually explicit conduct
for the purpose of photographing, recording or displaying the conduct; 2)
photographs, records or displays a child engaged in sexually explicit conduct; or 3)
produces, performs in, profits from, promotes, sells or distributes any photograph,
recording or other reproduction of a child engaging in sexually explicit conduct.
The Wisconsin Supreme Court has decided that part of the current law
prohibitions against sexual exploitation of a child is unconstitutional. State v.
Zarnke, __ Wis. 2d __ (No. 97-1664-CR, decided February 26, 1999). Specifically, the
court struck down the prohibition relating to profiting from, promoting, selling or
distributing material showing a child engaging in sexually explicit conduct. The
court decided that to be held criminally responsible for sexual exploitation of a child
the defendant must know that the child had not attained the age of 18. Although
current law requires a prosecutor to prove that the child involved in the sexually
explicit conduct is under the age of 18, current law does not require the prosecutor
to prove that the defendant knew that the child is under the age of 18.
Current law does provide that a defendant charged with sexual exploitation of
a child has a defense to the charge if the defendant had reasonable cause to believe
that the child had attained the age of 18 and the child exhibited an official or
apparently official document purporting to show that the child had attained the age
of 18. However, the court found that it is virtually impossible for a defendant to prove
the defense if he or she is charged with profiting from, promoting, selling or
distributing material showing a child engaging in sexually explicit conduct because
in such cases a defendant's conduct does not entail a personal meeting with the child
during which the child could exhibit the document purporting to show his or her age.
Thus, the court decided that the affirmative defense does not prevent a defendant in
such cases from being convicted even though he or she did not know that the child
was under the age of 18.
This bill changes the current statute prohibiting sexual exploitation of a child
to require the prosecutor to prove that the defendant knew or had reason to know
that the child engaged in the sexually explicit conduct is under the age of 18. The
bill also eliminates the affirmative defense provided under current law for persons
charged with sexual exploitation of a child. It is no longer appropriate to provide an
affirmative defense given the requirement under the bill that the prosecutor prove
the defendant's knowledge of the child's age.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB207, s. 1
1Section
1. 948.05 (1) (intro.) of the statutes is amended to read:
AB207,2,52
948.05
(1) (intro.) Whoever does any of the following
with knowledge of 3knowing or having reason to know that the child engaged in the sexually explicit
4conduct has not attained the age of 18 years and knowing the character and content
5of the sexually explicit conduct involving the child is guilty of a Class C felony:
AB207, s. 2
6Section
2. 948.05 (3) of the statutes is repealed.
