A telephone survey regarding community standards is irrelevant. A relevant survey must address whether the material at issue depicts acts in a patently offensive manner and appeals to the prurient interest. County of Kenosha v. C. & S. Management, Inc. 223 Wis. 2d 373
, 588 N.W.2d 236
Contemporary community standards must be applied by juries in accordance with their own understanding of the average tolerance of the average person in their community. The community to be considered is the state. Material is obscene if it appeals to prurient interest, not if it intends or attempts to appeal to prurient interest. State v. Tee & Bee, Inc. 229 Wis. 2d 446
, 600 N.W.2d 230
(Ct. App. 1999).
The federal constitution does not mandate that juries be instructed to apply standards of a hypothetical statewide community. Jenkins v. Georgia, 418 U.S. 153
A motion picture cannot be seized without a prior adversary hearing. Detco, Inc. v. Neelen, 356 F. Supp. 289
Behind the Curtain of Privacy: How Obscenity Law Inhibits the Expression of Ideas About Sex and Gender. Peterson. 1998 WLR 625.
From Ulysses to Portnoy: A pornography primer. Eich, 53 MLR 155.
Making lewd, obscene or indecent drawings.
Whoever makes any lewd, obscene or indecent drawing or writing in public or in a public place is guilty of a Class C misdemeanor.
History: 1977 c. 173
Any person who intentionally does any of the following is guilty of a Class A misdemeanor:
Has or offers to have or requests to have nonmarital sexual intercourse for anything of value.
Commits or offers to commit or requests 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 for anything of value.
Is an inmate of a place of prostitution.
Masturbates a person or offers to masturbate a person or requests to be masturbated by a person for anything of value.
Commits or offers to commit or requests to commit an act of sexual contact for anything of value.
In order for a female prostitute to avoid prosecution upon equal protection grounds, it must be shown that the failure to prosecute male patrons was selective, persistent, discriminatory and without justifiable prosecutorial discretion. State v. Johnson, 74 Wis. 2d 169
, 246 N.W.2d 503
Prosecuting for solicitation under s. 939.30 rather than for prostitution under s. 944.30 did not deny equal protection. Sears v. State, 94 Wis. 2d 128
, 287 N.W.2d 785
A prostitution raid focusing only on female participants amounts to selective prosecution in violation of equal protection. The applicable constitutional analysis is discussed. State v. McCollum, 159 Wis. 2d 184
, 464 N.W.2d 44
(Ct. App. 1990).
As long as someone compensates another for engaging in nonmarital sex, the elements of prostitution are met. The person making payment need not engage in the sexual act. State v. Kittilstad, 231 Wis. 2d 245
, 603 N.W.2d 732
Any person 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 prostitute is guilty of a Class A misdemeanor.
Except as provided under s. 948.08
, whoever intentionally solicits or causes any person to practice prostitution or establishes any person in a place of prostitution is guilty of a Class D felony.
History: 1977 c. 173
; 1987 a. 332
Section 944.32, 1985 stats., prohibiting solicitation of prostitutes, does not violate right of free speech. Shillcutt v. State, 74 Wis. 2d 642
, 247 N.W.2d 694
This section is not unconstitutionally vague or overbroad and its penalty is not disproportionate. State v. Johnson, 108 Wis. 2d 703
, 324 N.W.2d 447
(Ct. App. 1982).
Whoever does any of the following is guilty of a Class A misdemeanor:
Solicits another 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 the solicitor knows is a prostitute; or
With intent to facilitate another in having nonmarital intercourse or committing 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 prostitute, directs or transports the person to a prostitute or directs or transports a prostitute to the person.
If the person received compensation from the earnings of the prostitute, such person is guilty of a Class C felony.
In a prosecution under this section, it is competent for the state to prove other similar acts by the accused for the purpose of showing the accused's intent and disposition.
Keeping place of prostitution.
Whoever intentionally does any of the following is guilty of a Class D felony:
Keeps a place of prostitution; or
Grants the use or allows the continued use of a place as a place of prostitution.
History: 1977 c. 173
A conviction under sub. (2) requires proof that the defendant has authority to exclude those engaging in prostitution from the use of the place for prohibited acts. Shillcutt v. State, 74 Wis. 2d 642
, 247 N.W.2d 694
Under sub. (2), "grants the use" requires the prosecution to prove a single affirmative approval of the use of the premises as a place of prostitution, while "allows the continued use of" requires proof of intentional but passive acquiescence or toleration of the use on more than one occasion. Johnson v. State, 76 Wis. 2d 672
, 251 N.W.2d 834
Solicitation of drinks prohibited.
Any licensee, permittee or bartender of a retail alcohol beverage establishment covered by a license or permit issued under ch. 125
who permits an entertainer or employee to solicit a drink of any alcohol beverage, as defined in s. 125.02 (1)
, or any other drink from a customer on the premises, or any entertainer or employee who solicits such drinks from any customer, is guilty of a Class B misdemeanor.
History: 1975 c. 39
; 1975 c. 199
; Stats. 1975 s. 944.36; 1977 c. 173
; 1981 c. 79
Legislative Council Note, 1981: The amendment to s. 944.36 reflects the combining of s. 66.054 and ch. 176 into one chapter, ch. 125, and the definition of "alcohol beverage" in that chapter. [Bill 300-A]