948.03(5)(b)(b) If an action under par. (a) is tried to a jury, in order to find the defendant guilty the members of the jury must unanimously agree that at least 3 violations of sub. (2), (3), or (4) occurred within the specified period but need not agree on which acts constitute the requisite number. 948.03(5)(c)(c) The state may not charge in the same action a defendant with a violation of this subsection and with a violation involving the same child under sub. (2), (3), or (4), unless the other violation occurred outside of the period applicable under par. (a). This paragraph does not prohibit a conviction for an included crime under s. 939.66 when the defendant is charged with a violation of this subsection. 948.03(6)(6) Treatment through prayer. A person is not guilty of an offense under this section solely because he or she provides a child with treatment by spiritual means through prayer alone for healing in accordance with the religious method of healing permitted under s. 48.981 (3) (c) 4. or 448.03 (6) in lieu of medical or surgical treatment. 948.03 AnnotationTo 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 (1993). 948.03 AnnotationTo 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 AnnotationThe 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 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 AnnotationReckless child abuse requires that a 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 AnnotationTestimony supporting the defendant’s assertion that the defendant was beaten with a belt as a child was not relevant to whether the amount of force the defendant used in spanking the defendant’s child was objectively reasonable. A parent may not abuse the parent’s child and claim that conduct is reasonable based on the parent’s history of being similarly abused. State v. Williams, 2006 WI App 212, 296 Wis. 2d 834, 723 N.W.2d 719, 05-2282. 948.03 AnnotationThe treatment-through-prayer provision under sub. (6) by its terms applies only to charges of criminal child abuse under this section. On its face, the treatment-through-prayer provision does not immunize a parent from any criminal liability other than that created by the criminal child abuse statute. No one reading the treatment-through-prayer provision should expect protection from criminal liability under any other statute. State v. Neumann, 2013 WI 58, 348 Wis. 2d 455, 832 N.W.2d 560, 11-1044. 948.03 AnnotationThe second-degree reckless homicide statute, s. 940.06, and this section are sufficiently distinct that a parent has fair notice of conduct that is protected and conduct that is unprotected. The statutes are definite enough to provide a standard of conduct for those whose activities are proscribed and those whose conduct is protected. A reader of the treatment-through-prayer provision, sub. (6), cannot reasonably conclude that the reader can, with impunity, use prayer treatment as protection against all criminal charges. The statutes are not unconstitutional on due process fair notice grounds. State v. Neumann, 2013 WI 58, 348 Wis. 2d 455, 832 N.W.2d 560, 11-1044. 948.03 AnnotationThis section penalizes two types of harm: 1) bodily harm; and 2) great bodily harm. The definition of “substantial bodily harm” under s. 939.22 (38) that includes bone fractures is inapplicable to this section. Although bone fractures do not involve a risk of death, disfigurement, or a permanent or protracted loss or impairment of any part of a victim’s body, they can fall under the “other serious bodily injury” segment of the “great bodily harm” definition in s. 939.22 (14). Just because all fractures meet the definition of substantial bodily harm, that does not imply that a particular fracture, or multiple fractures as was the case here, cannot be serious enough to qualify as an “other serious bodily injury” for purposes of being great bodily harm. State v. Davis, 2016 WI App 73, 371 Wis. 2d 737, 885 N.W.2d 807, 15-2030. 948.04948.04 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 HistoryHistory: 1987 a. 332; 2001 a. 109. 948.05948.05 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)(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 Annotation“Import” under sub. (1) (c) [now sub. (1m)] 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 AnnotationThe purposes of this section, child exploitation, and s. 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. 948.051948.051 Trafficking of a child. 948.051(1)(1) Whoever knowingly recruits, entices, provides, obtains, harbors, transports, patronizes, or solicits or knowingly attempts to recruit, entice, provide, obtain, harbor, transport, patronize, or solicit any child for the purpose of commercial sex acts, as defined in s. 940.302 (1) (a), 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 AnnotationUnder the Radar: Human Trafficking in Wisconsin. Monaco-Wilcox & Mueller. Wis. Law. Oct. 2017.
948.055948.055 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, or an individual who the actor believes or has reason to believe 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 or individual. 948.055(2)(a)(a) A Class F felony if any of the following applies: 948.055(2)(a)2.2. The actor believes or has reason to believe that the child has not attained the age of 13 years. 948.055(2)(b)(b) A Class H felony if any of the following applies: 948.055(2)(b)1.1. The child has attained the age of 13 years but has not attained the age of 18 years. 948.055(2)(b)2.2. The actor believes or has reason to believe that the child has attained the age of 13 years but has not attained the age of 18 years. 948.06948.06 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)(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. 948.07948.07 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(2)(2) Causing the child to engage in prostitution. 948.07(3)(3) Exposing genitals, pubic area, or intimate parts to the child or causing the child to expose genitals, pubic area, or intimate parts 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 AnnotationThe penalty scheme of sub. (3) is not unconstitutionally irrational. That the statute, unlike sub. (1), does 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 AnnotationThis 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 AnnotationThe purposes of s. 948.05, child exploitation, and this section, 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 AnnotationThis 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 AnnotationOne 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 AnnotationAttempted child enticement may be charged when the intervening extraneous factor that makes the offense an attempted rather than a completed crime is that unbeknownst to the defendant, the “victim” is an adult government agent posing as a child. The 1st amendment to the U.S. Constitution 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, 646 N.W.2d 287, 00-2841. 948.07 AnnotationActs 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 AnnotationWhile 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 AnnotationLike the child enticement statute in Robins, 2002 WI 65, 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 scrutiny under the 1st amendment to the U.S. Constitution. State v. Brienzo, 2003 WI App 203, 267 Wis. 2d 349, 671 N.W.2d 700, 01-1362. 948.07 AnnotationThis 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. 948.07 Annotation“Secluded” in this section is not a technical term. In the context of child enticement, a secluded place would include any place that provides the enticer an opportunity to remove the child from within the general public’s view to a location where any intended sexual conduct is less likely to be detected by the public. A place need not even be screened or hidden or remote if some other aspect of the place lowers the likelihood of detection. All the statute requires is that the place provides a means by which to exclude the child and reduce the risk of detection. State v. Pask, 2010 WI App 53, 324 Wis. 2d 555, 781 N.W.2d 751, 09-0559. 948.07 AnnotationSexual contact is not an element of the crime of child enticement under this section. Rather, the six enumerated prohibited intents are modes of commission. At least one mode of commission must be referenced during a plea colloquy, but the terms comprising each mode need not be specifically defined. The crime of child enticement does not require proof of the actual, physical action contemplated by the mode of commission, only that the defendant acted to entice a child while intending to do one of the prohibited acts. The act of enticement is the crime, not the underlying intended sexual or other misconduct. State v. Hendricks, 2018 WI 15, 379 Wis. 2d 549, 906 N.W.2d 666, 15-2429. 948.075948.075 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 AnnotationThe 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. 948.075 AnnotationThe defendant’s use of a webcam to transmit video of himself was, under the circumstances of this case, nothing more than the use of the defendant’s computer to communicate and thus not an act “other than us[ing] a computerized communication system to communicate” as required under sub. (3). State v. Olson, 2008 WI App 171, 314 Wis. 2d 630, 762 N.W.2d 393, 08-0587. 948.075 AnnotationThe element use of a “computerized communication system” in sub. (1r) was satisfied when the defendant used a flip-style cellphone to exchange texts with, and receive picture messages from, the 14-year-old victim. There is no doubt that modern cellphones today are in fact computers. The defendant used the defendant’s cellphone as a computer to send communications to the victim over the computer system used by their cellphones so that the defendant could have sexual contact with the victim. State v. McKellips, 2016 WI 51, 369 Wis. 2d 437, 881 N.W.2d 258, 14-0827. 948.075 AnnotationThis section is not unconstitutionally vague because a person of ordinary intelligence would understand that using a cellphone to text or picture message with a child to entice sexual encounters violates the statute, and this section is capable of objective enforcement. State v. McKellips, 2016 WI 51, 369 Wis. 2d 437, 881 N.W.2d 258, 14-0827. 948.075 AnnotationThe legislature had reasonable and practical grounds for making a conviction for using a computer to facilitate a child sex crime under sub. (1r) subject to a mandatory minimum sentence. Thus, there was a rational basis for the penalty enhancer in s. 939.617 (1), and it was not unconstitutional as applied to the defendant. State v. Heidke, 2016 WI App 55, 370 Wis. 2d 771, 883 N.W.2d 162, 15-1420. 948.08948.08 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 AnnotationAlthough 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, 313 Wis. 2d 39, 756 N.W.2d 423, 07-1192. 948.081948.081 Patronizing a child. An actor who enters or remains in any place of prostitution with intent to have nonmarital sexual intercourse or to commit an act of sexual gratification, in public or in private, involving the sex organ of one person and the mouth or anus of another, masturbation, or sexual contact with a person is guilty of a Class G felony if the person is a child. In a prosecution under this section, it need not be proven that the actor knew the age of the person and it is not a defense that the actor reasonably believed that the person was not a child. 948.081 HistoryHistory: 2017 a. 128.
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Chs. 939-951, Criminal Code
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