948.03 History History: 1987 a. 332; 2001 a. 109; 2007 a. 80.
948.03 Annotation To obtain a conviction for aiding and abetting a violation of sub. (2) or (3), the state must prove conduct that as a matter of objective fact aids another in executing the crime. State v. Rundle, 176 Wis. 2d 985, 500 N.W.2d 916 (Ct. App. 1993).
948.03 Annotation A live-in boyfriend can be a person responsible for the welfare of a child under sub. (5) if he was used by the child's legal guardian as a caretaker for the child. State v. Sostre, 198 Wis. 2d 409, 542 N.W.2d 774 (1996).
948.03 Annotation To overcome the privilege of parental discipline in s. 939.45 (5), the state must prove beyond a reasonable doubt that only one of the following is not met: 1) the use of force must be reasonably necessary; 2) the amount and nature of the force used must be reasonable; and 3) the force used must not be known to cause, or create a substantial risk of, great bodily harm or death. Whether a reasonable person would have believed the amount of force used was necessary and not excessive must be determined from the standpoint of the defendant at the time of the defendant's acts. The standard is what a person of ordinary intelligence and prudence would have believed in the defendant's position under the circumstances that existed at the time of the alleged offense. State v. Kimberly B. 2005 WI App 115, 283 Wis. 2d 731, 699 N.W.2d 641, 04-1424.
948.03 Annotation The definition of reckless in this section is distinct from the general definition found in s. 939.24 and does not contain a state of mind element. Because the defense of mistake defense applies only to criminal charges with a state of mind element the trial court properly exercised its discretion in refusing to give an instruction on the mistake defense. State v. Hemphill, 2006 WI App 185, 296 Wis. 2d 198, 722 N.W. 2d 393, 05-1350.
948.03 Annotation Reckless child abuse requires the defendant's actions demonstrate a conscious disregard for the safety of a child, not that the defendant was subjectively aware of that risk. In contrast, criminal recklessness under s. 939.24 (1) is defined as when the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk. Thus, recklessly causing harm to a child is distinguished from criminal recklessness, because only the latter includes a subjective component. State v. Williams, 2006 WI App 212, 296 Wis. 2d 834, 723 N.W. 2d 719, 05-2282.
948.03 Annotation Testimony supporting the defendant father's assertion that he was beaten with a belt as a child was not relevant to whether the amount of force he used in spanking his daughter was objectively reasonable. A parent may not abuse his or her child and claim that conduct is reasonable based on his or her history of being similarly abused. State v. Williams, 2006 WI App 212, 296 Wis. 2d 834, 723 N.W. 2d 719, 05-2282.
948.04 948.04 Causing mental harm to a child.
948.04(1) (1) Whoever is exercising temporary or permanent control of a child and causes mental harm to that child by conduct which demonstrates substantial disregard for the mental well-being of the child is guilty of a Class F felony.
948.04(2) (2) A person responsible for the child's welfare is guilty of a Class F felony if that person has knowledge that another person has caused, is causing or will cause mental harm to that child, is physically and emotionally capable of taking action which will prevent the harm, fails to take that action and the failure to act exposes the child to an unreasonable risk of mental harm by the other person or facilitates the mental harm to the child that is caused by the other person.
948.04 History History: 1987 a. 332; 2001 a. 109.
948.05 948.05 Sexual exploitation of a child.
948.05(1) (1) Whoever does any of the following with knowledge of the character and content of the sexually explicit conduct involving the child may be penalized under sub. (2p):
948.05(1)(a) (a) Employs, uses, persuades, induces, entices, or coerces any child to engage in sexually explicit conduct for the purpose of recording or displaying in any way the conduct.
948.05(1)(b) (b) Records or displays in any way a child engaged in sexually explicit conduct.
948.05(1m) (1m) Whoever produces, performs in, profits from, promotes, imports into the state, reproduces, advertises, sells, distributes, or possesses with intent to sell or distribute, any recording of a child engaging in sexually explicit conduct may be penalized under sub. (2p) if the person knows the character and content of the sexually explicit conduct involving the child and if the person knows or reasonably should know that the child engaging in the sexually explicit conduct has not attained the age of 18 years.
948.05(2) (2) A person responsible for a child's welfare who knowingly permits, allows or encourages the child to engage in sexually explicit conduct for a purpose proscribed in sub. (1) (a) or (b) or (1m) may be penalized under sub. (2p).
948.05(2p) (2p)
948.05(2p)(a)(a) Except as provided in par. (b), a person who violates sub. (1), (1m), or (2) is guilty of a Class C felony.
948.05(2p)(b) (b) A person who violates sub. (1), (1m), or (2) is guilty of a Class F felony if the person is under 18 years of age when the offense occurs.
948.05(3) (3) It is an affirmative defense to prosecution for violation of sub. (1) (a) or (b) or (2) if the defendant had reasonable cause to believe that the child had attained the age of 18 years. A defendant who raises this affirmative defense has the burden of proving this defense by a preponderance of the evidence.
948.05 History History: 1987 a. 332; 1999 a. 3; 2001 a. 16, 109; 2005 a. 433.
948.05 Annotation "Import" under sub. (1) (c) means bringing in from an external source and does not require a commercial element or exempt personal use. State v. Bruckner, 151 Wis. 2d 833, 447 N.W.2d 376 (Ct. App. 1989).
948.05 Annotation The purposes of ss. 948.05, child exploitation, and 948.07, child enticement, are distinct, and two distinct crimes are envisioned by the statutes. Charging both for the same act was not multiplicitous. State v. DeRango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, 98-0642.
948.051 948.051 Trafficking of a child.
948.051(1) (1) Whoever knowingly recruits, entices, provides, obtains, or harbors, or knowingly attempts to recruit, entice, provide, obtain, or harbor, any child for the purpose of commercial sex acts, as defined in s. 940.302 (1) (a), or sexually explicit performance is guilty of a Class C felony.
948.051(2) (2) Whoever benefits in any manner from a violation of sub. (1) is guilty of a Class C felony if the person knows that the benefits come from an act described in sub. (1).
948.051(3) (3) Any person who incurs an injury or death as a result of a violation of sub. (1) or (2) may bring a civil action against the person who committed the violation. In addition to actual damages, the court may award punitive damages to the injured party, not to exceed treble the amount of actual damages incurred, and reasonable attorney fees.
948.051 History History: 2007 a. 116.
948.055 948.055 Causing a child to view or listen to sexual activity.
948.055(1)(1) Whoever intentionally causes a child who has not attained 18 years of age to view or listen to sexually explicit conduct may be penalized as provided in sub. (2) if the viewing or listening is for the purpose of sexually arousing or gratifying the actor or humiliating or degrading the child.
948.055(2) (2) Whoever violates sub. (1) is guilty of:
948.055(2)(a) (a) A Class F felony if the child has not attained the age of 13 years.
948.055(2)(b) (b) A Class H felony if the child has attained the age of 13 years but has not attained the age of 18 years.
948.055 History History: 1987 a. 334; 1989 a. 359; 1993 a. 218 ss. 6, 7; Stats. 1993 s. 948.055; 1995 a. 67; 2001 a. 109.
948.06 948.06 Incest with a child. Whoever does any of the following is guilty of a Class C felony:
948.06(1) (1) Marries or has sexual intercourse or sexual contact with a child he or she knows is related, either by blood or adoption, and the child is related in a degree of kinship closer than 2nd cousin.
948.06(1m) (1m) Has sexual contact or sexual intercourse with a child if the actor is the child's stepparent.
948.06(2) (2) Is a person responsible for the child's welfare and:
948.06(2)(a) (a) Has knowledge that another person who is related to the child by blood or adoption in a degree of kinship closer than 2nd cousin or who is a child's stepparent has had or intends to have sexual intercourse or sexual contact with the child;
948.06(2)(b) (b) Is physically and emotionally capable of taking action that will prevent the intercourse or contact from occurring or being repeated;
948.06(2)(c) (c) Fails to take that action; and
948.06(2)(d) (d) The failure to act exposes the child to an unreasonable risk that intercourse or contact may occur between the child and the other person or facilitates the intercourse or contact that does occur between the child and the other person.
948.06 History History: 1987 a. 332; 1995 a. 69; 2001 a. 109; 2005 a. 277.
948.07 948.07 Child enticement. Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class D felony:
948.07(1) (1) Having sexual contact or sexual intercourse with the child in violation of s. 948.02, 948.085, or 948.095.
948.07(2) (2) Causing the child to engage in prostitution.
948.07(3) (3) Exposing a sex organ to the child or causing the child to expose a sex organ in violation of s. 948.10.
948.07(4) (4) Recording the child engaging in sexually explicit conduct.
948.07(5) (5) Causing bodily or mental harm to the child.
948.07(6) (6) Giving or selling to the child a controlled substance or controlled substance analog in violation of ch. 961.
948.07 History History: 1987 a. 332; 1995 a. 67, 69, 448, 456; 2001 a. 16, 109; 2005 a. 277.
948.07 Annotation The penalty scheme of sub. (3) is not unconstitutionally irrational. That the statute, unlike sub. (1), did not distinguish between victims 16 years old or older and other children victims is a matter for the legislature. State v. Hanson, 182 Wis. 2d 481, 513 N.W.2d 700 (Ct. App. 1994).
948.07 Annotation This section includes the attempted crime, as well as the completed crime, and cannot be combined with the general attempt statute. State v. DeRango, 229 Wis. 2d 1, 599 N.W.2d 27 (Ct. App. 1999), 98-0642.
948.07 Annotation The purposes of ss. 948.05, child exploitation, and 948.07, child enticement, are distinct, and two distinct crimes are envisioned by the statutes. Charging both for the same act was not multiplicitous. State v. DeRango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, 98-0642.
948.07 Annotation This section creates one crime with multiple modes of commission. The alternate modes of commission are not so dissimilar as to implicate fundamental fairness. As such, a defendant is not entitled to a unanimity instruction. State v. DeRango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, 98-0642.
948.07 Annotation One alternate mode of commission of the crime under this section is attempt to cause a child to go into a vehicle, building, room, or secluded place. The principles of attempt in s. 939.32 apply. That the intended victims were fictitious constituted an extraneous fact beyond the defendant's control that prevented successful enticement while not excusing the attempt to entice. State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359, 00-2684.
948.07 Annotation Attempted child enticement may be charged when the intervening extraneous factor that makes the offense an attempted rather than completed crime is that unbeknownst to the defendant, the "victim" is an adult government agent posing as a child. The 1st amendment is not implicated by the application of the child enticement statute to child enticements initiated over the internet as the statute regulates conduct, not speech. State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 647 N.W.2d 287, 00-2841.
948.07 Annotation Acts alleged in furtherance of the criminal objective, such as attempts to have a child get into a vehicle or go into a hotel room or a secluded place are not required to prove attempted child enticement. Going to meet the child at a planned time and place is a sufficient, unequivocal act in furtherance of the criminal objective when earlier conversations provide reasonable inferences of that criminal objective. State v. Grimm, 2002 WI App 242, 258 Wis. 2d 166, 653 N.W.2d 284, 01-0138.
948.07 Annotation While an attempt cannot lie to an offense that does not carry the element of specific intent and the statutory definition of sexual intercourse does not formally include an intent element, the act of sexual intercourse is necessarily an intentional act. As such, the crime of attempted sexual assault of a child by means of sexual intercourse is a crime. State v. Brienzo, 2003 WI App 203, 267 Wis. 2d 349, 671 N.W.2d 700, 01-1362.
948.07 Annotation Like the child enticement statute in Robins, the child sexual assault statute regulates conduct, not speech. An attempt to have sexual contact or sexual intercourse with a child initiated or carried out in part by means of language does not make an attempted child sexual assault charge susceptible of 1st amendment scrutiny. State v. Brienzo, 2003 WI App 203, 267 Wis. 2d 349, 671 N.W.2d 700.
948.07 Annotation This section requires only that the defendant cause the child to go into any vehicle, building, room, or secluded place with the intent to engage in illicit conduct, but not that the child necessarily be first separated from the public. State v. Provo, 2004 WI App 97, 272 Wis. 2d 837, 681 N.W.2d 272, 03-1710.
948.075 948.075 Use of a computer to facilitate a child sex crime.
948.075(1r)(1r) Whoever uses a computerized communication system to communicate with an individual who the actor believes or has reason to believe has not attained the age of 16 years with intent to have sexual contact or sexual intercourse with the individual in violation of s. 948.02 (1) or (2) is guilty of a Class C felony.
948.075(2) (2) This section does not apply if, at the time of the communication, the actor reasonably believed that the age of the person to whom the communication was sent was no more than 24 months less than the age of the actor.
948.075(3) (3) Proof that the actor did an act, other than use a computerized communication system to communicate with the individual, to effect the actor's intent under sub. (1r) shall be necessary to prove that intent.
948.075 History History: 2001 a. 109; 2003 a. 321; 2005 a. 433; 2007 a. 96.
948.075 Annotation Defendant's admission to driving to the alleged victim's neighborhood for an innocent purpose combined with computer communications, in which the defendant told the alleged victim that he drove through her neighborhood for the specific purpose of meeting her, and his confession to the police that he went to the area so he could "get her interested in chatting with him again," showed that the non-computer-assisted act of driving through the area was to effect his intent to have sex with the alleged victim and satisfied the requirement in sub. (3). State v. Schulpius, 2006 WI App 263, 298 Wis. 2d 155, 726 N.W.2d 706, 06-0283.
948.08 948.08 Soliciting a child for prostitution. Whoever intentionally solicits or causes any child to engage in an act of prostitution or establishes any child in a place of prostitution is guilty of a Class D felony.
948.08 History History: 1987 a. 332; 1995 a. 69; 2001 a. 109; 2007 a. 80.
948.08 Annotation Although colloquially referred to as prohibiting solicitation, this section also specifically, and alternatively, prohibits causing a child to practice prostitution. Cause is a substantial factor that need not be the first or sole cause, of a child practicing prostitution. The habitual nature of the defendant's trading cocaine for sex with the child victim satisfied the requisite that the victim did "practice prostitution" with the defendant. State v. Payette, 2008 WI App 106, ___ Wis. 2d ___, ___ N.W.2d ___, 07-1192.
948.085 948.085 Sexual assault of a child placed in substitute care. Whoever does any of the following is guilty of a Class C felony:
948.085(1) (1) Has sexual contact or sexual intercourse with a child for whom the actor is a foster parent or treatment foster parent.
948.085(2) (2) Has sexual contact or sexual intercourse with a child who is placed in any of the following facilities if the actor works or volunteers at the facility or is directly or indirectly responsible for managing it:
948.085(2)(a) (a) A shelter care facility licensed under s. 48.66 (1) (a).
948.085(2)(b) (b) A group home licensed under s. 48.625 or 48.66 (1).
948.085(2)(c) (c) A facility described in s. 940.295 (2) (m).
948.085 History History: 2005 a. 277; 2007 a. 97.
948.09 948.09 Sexual intercourse with a child age 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.
948.09 History History: 1987 a. 332.
948.095 948.095 Sexual assault of a child by a school staff person or a person who works or volunteers with children.
948.095(1)(1) In this section:
948.095(1)(a) (a) "School" means a public or private elementary or secondary school.
948.095(1)(b) (b) "School staff" means any person who provides services to a school or a school board, including an employee of a school or a school board and a person who provides services to a school or a school board under a contract.
948.095(2) (2) Whoever has sexual contact or sexual intercourse with a child who has attained the age of 16 years and who is not the defendant's spouse is guilty of a Class H felony if all of the following apply:
948.095(2)(a) (a) The child is enrolled as a student in a school or a school district.
948.095(2)(b) (b) The defendant is a member of the school staff of the school or school district in which the child is enrolled as a student.
948.095(3) (3)
948.095(3)(a)(a) A person who has attained the age of 21 years and who engages in an occupation or participates in a volunteer position that requires him or her to work or interact directly with children may not have sexual contact or sexual intercourse with a child who has attained the age of 16 years, who is not the person's spouse, and with whom the person works or interacts through that occupation or volunteer position.
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This is an archival version of the Wis. Stats. database for 2007. See Are the Statutes on this Website Official?