SB410: Bill Text

PJH:amn

2015 - 2016 LEGISLATURE

2015 Senate BILL 410

December 3, 2015 - Introduced by Senators Vukmir and Wanggaard, cosponsored by Representatives Spiros, Mursau, Horlacher, E. Brooks, T. Larson, Subeck, Kahl, Allen, Kulp, Zamarripa, Kremer, Duchow and Craig. Referred to Committee on Judiciary and Public Safety.

SB410,1,4 An Act to amend 942.08 (1) (c), 942.08 (2) (a), 942.09 (1) (a), 942.09 (1) (c), 942.09 (2) (am) 1., 2. and 3., 942.09 (2) (bm) (intro.), 972.11 (2) (b) (intro.) and 972.11 (2) (d) 1. (intro.); and to create 942.09 (1) (ae) and 942.09 (1) (ag) of the statutes; relating to: invasions of privacy and providing a criminal penalty.

Analysis by the Legislative Reference Bureau

This bill prohibits certain acts that violate a person's right to privacy. Current law prohibits installing or using a surveillance device that has been installed in a private place to observe a nude or partially nude person without that person's consent. The bill clarifies that a surveillance device need only be capable of observing the activities of a person and need not be primarily designed for that purpose. Under the bill, a person may not install or use in a private place a surveillance device to view a nude or partially nude person in a private place without that person's consent.

Under current law, a person who captures a representation of a nude or partially nude person without the person's consent and while that person has a reasonable expectation of privacy, or a person who makes, exhibits, or distributes a reproduction of such a representation of the nude or partially nude person, is guilty of a Class I felony.

Under the bill, a person is guilty of a Class I felony if he or she makes, reproduces, exhibit, or distributes a video or audio representation of a person who is nude or partially nude; of a person's clothed, covered, or partially clothed or covered genitalia or buttock that is not otherwise visible to the public; of a person urinating, defecating, or using a feminine hygiene product; or of a person engaged in sexual intercourse or sexual contact, and if the same conditions of lack of consent and expectation of privacy exist.

The bill defines consent as "words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to the act," and establishes that a person under the age of 18 is incapable of consent. Under the bill, a person suffering from a mental illness or defect that impairs his or her capacity to appraise personal conduct and a person who is unconscious or otherwise physically unable to communicate unwillingness to an act are presumed incapable of giving consent.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB410,1 Section 1. 942.08 (1) (c) of the statutes is amended to read:

SB410,2,5 942.08 (1) (c) "Surveillance device" means any device, instrument, apparatus, implement, mechanism or contrivance used, designed to be used or primarily intended to be used to observe, or capable of observing, the activities of a person. "Surveillance device" includes a peephole.

SB410,2 Section 2. 942.08 (2) (a) of the statutes is amended to read:

SB410,2,10 942.08 (2) (a) Knowingly installs a surveillance device in any private place, or uses a surveillance device that has been installed to observe in a private place, with the intent to observe any nude or partially nude person without the consent of the person observed.

SB410,3 Section 3. 942.09 (1) (a) of the statutes is amended to read:

SB410,2,14 942.09 (1) (a) "Captures a representation" means takes a photograph, makes a motion picture, videotape, recording, or other visual or audio representation, or records or stores in any medium data that represents a visual image.

SB410,4 Section 4. 942.09 (1) (ae) of the statutes is created to read:

SB410,3,5 942.09 (1) (ae) "Consent" means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to the act. A person who has not attained the age of 18 is incapable of consent. The following persons are presumed incapable of consent but the presumption may be rebutted by competent evidence, subject to the provisions of s. 972.11 (2):

SB410,3,7 1. A person suffering from a mental illness or defect that impairs capacity to appraise personal conduct.

SB410,3,9 2. A person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

SB410,5 Section 5. 942.09 (1) (ag) of the statutes is created to read:

SB410,3,11 942.09 (1) (ag) "Intimate representation" means any of the following:

SB410,3,12 1. A representation of a nude or partially nude person.

SB410,3,14 2. A representation of clothed, covered, or partially clothed or covered genitalia or buttock that is not otherwise visible to the public.

SB410,3,16 3. A representation of a person urinating, defecating, or using a feminine hygiene product.

SB410,3,18 4. A representation of person engaged in sexual intercourse or sexual contact, as defined in s. 940.225 (5) (b) or (c).

SB410,6 Section 6. 942.09 (1) (c) of the statutes is amended to read:

SB410,3,22 942.09 (1) (c) "Representation" means a photograph, exposed film, motion picture, videotape, recording, other visual or audio representation, or data that represents a visual image or audio recording.

SB410,7 Section 7. 942.09 (2) (am) 1., 2. and 3. of the statutes are amended to read:

SB410,4,4 942.09 (2) (am) 1. Captures a an intimate representation that depicts nudity without the knowledge and consent of the person who is depicted nude while that person is nude in a circumstance under circumstances in which he or she has a reasonable expectation of privacy, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the capture of the intimate representation.

SB410,4,9 2. Makes a reproduction of a an intimate representation that the person knows or has reason to know was captured in violation of subd. 1. and that depicts the nudity depicted in the an intimate representation captured in violation of subd. 1., if the person depicted nude in the reproduction did not consent to the making of the reproduction.

SB410,4,15 3. Possesses, distributes, or exhibits a an intimate representation that was captured in violation of subd. 1. or a reproduction made in violation of subd. 2., if the person knows or has reason to know that the intimate representation was captured in violation of subd. 1. or the reproduction was made in violation of subd. 2., and if the person who is depicted nude in the intimate representation or reproduction did not consent to the possession, distribution, or exhibition.

SB410,8 Section 8. 942.09 (2) (bm) (intro.) of the statutes is amended to read:

SB410,4,22 942.09 (2) (bm) (intro.) Notwithstanding par. (am), if the person depicted nude in a an intimate representation or reproduction is a child and the capture, possession, exhibition, or distribution of the intimate representation, or making, possession, exhibition, or distribution of the reproduction, does not violate s. 948.05 or 948.12, a parent, guardian, or legal custodian of the child may do any of the following:

SB410,9 Section 9. 972.11 (2) (b) (intro.) of the statutes is amended to read:

SB410,5,6 972.11 (2) (b) (intro.) If the defendant is accused of a crime under s. 940.225, 942.09, 948.02, 948.025, 948.05, 948.051, 948.06, 948.07, 948.08, 948.085, 948.09, or 948.095, or under s. 940.302 (2), if the court finds that the crime was sexually motivated, as defined in s. 980.01 (5), any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury, except the following, subject to s. 971.31 (11):

SB410,10 Section 10. 972.11 (2) (d) 1. (intro.) of the statutes is amended to read:

SB410,5,12 972.11 (2) (d) 1. (intro.) If the defendant is accused of a crime under s. 940.225, 942.09, 948.02, 948.025, 948.05, 948.06, 948.085, or 948.095, evidence of the manner of dress of the complaining witness at the time when the crime occurred is admissible only if it is relevant to a contested issue at trial and its probative value substantially outweighs all of the following:

SB410,5,13 (End)