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May 4, 2001   Room 136
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  Wisconsin Rapids, Wisconsin
May 9, 2001   Room 041
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Proposed Order of the Department of Corrections Amending and Creating Rules
The Wisconsin department of corrections proposes an order to amend ss. DOC 309.02 (14) and 309.02 (16), and create DOC 309.02 (7m) and 309.02 (16) (b) and (c), relating to resources for inmates.
Statutory authority: ss. 301.02, 301.03 (1) and (2), and 227.11 (2).
Statutes interpreted: ss. 46.07, and 302.32 (1).
Analysis Prepared by the Department of Corrections
Effective December 1, 1998, the Department implemented rules restricting inmates' access to sexually explicit material. These rules were challenged in federal court in a class action suit brought by several inmates (Aiello v. Litscher, Case No. 98-C-791-C, Western District of Wisconsin). The defendants filed a motion for summary judgment, but it was denied by the court in language that suggested the rules were unconstitutional in their present form based on a number of federal appellate court decisions that were reported after the rules were implemented.
In light of these developments, the parties negotiated a settlement which includes an immediate revision of the present rules to conform to the latest decisional law regarding the extent to which inmates' access to sexually explicit material can be restricted for legitimate penological objectives. The emergency rule, adopted February 23, 2001, was necessary to avoid a lapse of the settlement agreement and lengthy trial with the attendant possibility of having to pay a considerable amount in attorneys' fees.
This order:
Revises the present rules restricting inmates' access to sexually explicit material by prohibiting access to published material that depicts nudity on a routine or regular basis or promotes itself based on nudity in the case of individual one-time issues.
Revises the present rules by prohibiting access to written material when it meets the legal definition of obscenity.
SECTION 1. DOC 309.02 (7m) is created to read:
DOC 309.02 (7m) “Features" means the publication contains depictions of nudity on a routine or regular basis or promotes itself based upon depictions of nudity in the case of individual one-time issues. The department will not prohibit a publication solely because it contains nudity that has a medical, educational or anthropological purpose.
SECTION 2. DOC 309.02 (14) is amended to read:
DOC 309.02 (14) “Nudity" for commercially published material means the showing of the human male or female genitals, or pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion below the top of the areola or nipple, or the depiction of covered male genitals in a discernibly turgid state. “Nudity" for purposes of a personal photograph means the showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of the areola or nipple, or the depiction of covered male genitals in a discernibly turgid state.
SECTION 3. DOC 309.02 (16) is amended to read:
DOC 309.02 (16) "Pornography " means any of the following:
(a) Any material, whether written, visual, video, or audio representation or reproduction, other than written material, that depicts any of the following:
(a)1. Human sexual behavior.
(b) 2. Sadomasochistic abuse, including but not limited to flagellation, bondage, brutality to or mutilation or physical torture of a human being.
(c) 3. Unnatural preoccupation with human excretion.
(d) Nudity which appeals to the prurient interest in sex.
(e)4. Nudity which is not part of any published photograph or printed material, such as a personal nude photograph.
(f) 5. Nudity of any person who has not attained the age of 18.
SECTION 4. DOC 309.02 (16) (b) and (c) are created to read:
DOC 309.02(16) (b) A publication that features nudity.
(c) Written material which the average person, applying state contemporary community standards, would find, when taken as a whole does all of the following:
1. Appeals to the prurient interest.
2. Describes human sexual behavior in a patently offensive way.
3. Lacks serious literary, artistic, political, educational, or scientific value.
SECTION 5. DOC 309.04 (4) (c) 8. a. is amended to read:
a. Is, in whole or in part, pornography.
Initial Regulatory Flexibility Analysis
These rules are not expected to have an effect on small businesses.
Fiscal Estimate
Effective December 1, 1998, the Department of Corrections (DOC) implemented rules restricting inmates' access to sexually explicit material. These rules were challenged in federal court in a class action suit brought by several inmates (Aiello v. Litscher). The defendants filed a motion for summary judgment, but it was denied by the court in language that suggested the rules were unconstitutional in their present form based on a number of federal court decisions that were reported after the rules were implemented.
In light of these developments, the parties negotiated a settlement which includes an immediate revision off the present rules to conform to the latest case law regarding the extent to which inmates' access to sexually explicit material can be restricted for legitimate penological objectives. There is no fiscal impact expected as a result of these changes.
Contact Person:
Julie M. Kane (608) 267-9839
Office of Legal Counsel
149 East Wilson Street
P.O. Box 7925
Madison, Wisconsin 53707-7925
If you are hearing or visually impaired, do not speak English, or have circumstances which might make communication at the hearing difficult and if you, therefore, require an interpreter or a non-English, large print or taped version of the hearing document, contact the person at the address or phone number above. A person requesting a non-English or sign language interpreter should make that request at least 10 days before the hearing. With less than 10 days notice, an interpreter may not be available.
Written Comments:
Written comments on the proposed rules received at the above address no later than May 18, 2001 will be given the same consideration as testimony presented at the hearing.
Submission of proposed rules to the legislature
Please check the Bulletin of Proceedings for further information on a particular rule.
Agriculture, Trade and Consumer Protection
(CR 99-151)
Ch. ATCP 81 - Relating to cheese grading, packaging and labeling.
Commerce (CR 00-132)
Ch. Comm 33 - Relating to tramways, lifts and tows.
Insurance (CR 00-010)
Chs. Ins 13 and 50 - Relating to town mutual insurance.
Insurance (CR 00-189)
Ch. Ins 25 - Relating to privacy of personal information.
Law Enforcement Standards Board (CR 99-115)
SS. LES 1.03 and 3.07 - Relating to model standards for law enforcement vehicular pursuits and for related training.
Natural Resources (CR 00-176)
Ch. NR 754 -- Relating to environmental insurance requirements for liability exemptions for voluntary remediation.
Natural Resources (CR 00-135)
Ch. NR 51 -- Relating to the stewardship program.
Regulation and Licensing (CR 01-003)
Chs. RL 110-114 -- Relating to the regulation of professional boxing.
Transportation (CR 00-122)
Ch. Trans 158 - Relating to placement of Wisconsin-issued motor vehicle identification numbers (VINs).
Rule orders filed with the
revisor of statutes bureau
The following administrative rule orders have been filed with the Revisor of Statutes Bureau and are in the process of being published. The date assigned to each rule is the projected effective date. It is possible that the publication date of these rules could be changed. Contact the Revisor of Statutes Bureau at (608) 266-7275 for updated information on the effective dates for the listed rule orders.
Health and Family Services (CR 00-151)
An order to amend, repeal, recreate and create ch. HFS 133, relating to home health agency licensing.
Effective 5-1-01
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Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.