2001 - 2002 LEGISLATURE
February 1, 2001 - Introduced by Representatives Gundrum, Bock, Rhoades,
Gronemus, Ainsworth, Coggs, Stone, Lassa, Ladwig, Hundertmark, Turner,
Kestell, Morris-Tatum, Wade, Grothman, Musser, M. Lehman, Williams,
Olsen, Vrakas, Jeskewitz, Albers, Nass, Huebsch, Powers, Kedzie, Seratti,
Montgomery, Suder, Krawczyk, Lippert, Gunderson, Urban, Plouff, Sykora

and Ott, cosponsored by Senators Plache, Harsdorf, Roessler, Baumgart,
Lazich, Huelsman, Schultz, Farrow, Darling
and Rosenzweig. Referred to
Committee on Judiciary.
AB60,1,4 1An Act to renumber and amend 944.205 (title), 944.205 (1), 944.205 (2) and
2944.205 (3) and (4); and to create 942.09 (1) (a) to (c) and 942.09 (2) (am) of the
3statutes; relating to: the prohibition against making, possessing, or
4distributing a representation that depicts nudity, and providing a penalty.
Analysis by the Legislative Reference Bureau
Current law prohibits production, possession, and distribution of a photograph,
motion picture, videotape, or other visual representation or reproduction that
depicts nudity if the person depicted nude did not consent to the representation or
reproduction and if the person who makes, possesses, or distributes the
representation or reproduction knows or should know that the person depicted nude
did not consent to the nude depiction. Current law exempts from criminal liability
parents, guardians, and legal custodians who make or possess visual
representations depicting their children nude, or who distribute the representations
for other than commercial purposes. The penalty for violating the prohibition
against production, possession, and distribution of representations depicting nudity
is a fine of up to $10,000, or imprisonment not to exceed five years, or both.
The Wisconsin supreme court recently found the state statute prohibiting nude
representations unconstitutional, because it prohibits all depictions of nudity made
without consent, including artistic, political, and newsworthy depictions that are
protected by the First Amendment (State v. Stevenson, 236 Wis. 2d 86 (2000)).
This bill narrows the scope of the prohibition against making an original
representation that depicts nudity by requiring that, at the time the representation

is made, the subject of the depiction be in circumstances in which he or she can
reasonably expect privacy.
The bill applies the prohibition against making a reproduction that depicts
nudity only to the act of reproducing an original representation that the reproducer
knows or should know was made in violation of the prohibition against making an
original representation, although the bill exempts a reproducer from criminal
liability if the subject of the representation does consent to the reproduction even if
he or she did not consent to the original representation. The bill treats the
prohibitions against possessing and distributing representations depicting nudity
similarly to the prohibition against making reproductions. The bill prohibits
possessing or distributing a representation that is unlawfully made, unless the
subject of the representation consents to the possession or distribution even if he or
she did not consent to the making of the representation.
The bill expands the categories of representations that a person may not create,
reproduce, possess, or distribute by prohibiting creation, reproduction, possession,
or distribution of data representations of visual images including computer
programs and the stored memory of an image captured with a digital camera.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB60, s. 1 1Section 1. 942.09 (1) (a) to (c) of the statutes are created to read:
AB60,2,42 942.09 (1) (a) "Captures a representation" means takes a photograph, makes
3a motion picture, videotape, or other visual representation, or records or stores in any
4medium data that represents a visual image.
AB60,2,55 (b) "Nudity" has the meaning given in s. 948.11 (1) (d).
AB60,2,76 (c) "Representation" means a photograph, exposed film, motion picture,
7videotape, other visual representation, or data that represents a visual image.
AB60, s. 2 8Section 2. 942.09 (2) (am) of the statutes is created to read:
AB60,2,139 942.09 (2) (am) Makes a reproduction of a representation that the person
10knows or has reason to know was captured in violation of par. (a) and that depicts
11the nudity depicted in the representation captured in violation of par. (a), if the
12person depicted nude in the reproduction did not consent to the making of the
13reproduction.
AB60, s. 3
1Section 3. 944.205 (title) of the statutes is renumbered 942.09 (title) and
2amended to read:
AB60,3,4 3942.09 (title) Photographs, motion pictures, videotapes or other visual
4representations showing
Representations depicting nudity.
AB60, s. 4 5Section 4. 944.205 (1) of the statutes is renumbered 942.09 (1) (intro.) and
6amended to read:
AB60,3,87 942.09 (1) (intro.) In this section, "nudity" has the meaning given in s. 948.11
8(1) (d).
:
AB60, s. 5 9Section 5. 944.205 (2) of the statutes is renumbered 942.09 (2), and 942.09 (2)
10(a) and (b), as renumbered, are amended to read:
AB60,3,1811 942.09 (2) (a) Takes a photograph or makes a motion picture, videotape or other
12visual representation or reproduction
Captures a representation that depicts nudity
13without the knowledge and consent of the person who is depicted nude while that
14person is nude in circumstances in which he or she has a reasonable expectation of
15privacy
, if the person knows or has reason to know that the person who is depicted
16nude does not know of and consent to the taking or making of the photograph, motion
17picture, videotape or other visual representation or reproduction
capture of the
18representation
.
AB60,4,219 (b) Possesses or distributes a photograph, motion picture, videotape or other
20visual representation
representation that was captured in violation of par. (a) or a
21reproduction that depicts nudity and that was taken or made without the knowledge
22and consent of the person who is depicted nude
in violation of par. (am), if the person
23knows or has reason to know that the photograph, motion picture, videotape or other
24visual
representation was captured in violation of par. (a) or the reproduction was
25taken or made without the knowledge and consent of in violation of par. (am), and

1if
the person who is depicted nude in the representation or reproduction did not
2consent to the possession or distribution
.
AB60, s. 6 3Section 6. 944.205 (3) and (4) of the statutes are renumbered 942.09 (3) and
4(4) and amended to read:
AB60,4,105 942.09 (3) Notwithstanding sub. (2) (a), (am), and (b), if the person depicted
6nude
in a photograph, motion picture, videotape or other visual representation or
7reproduction is a child and the making capture, possession, or distribution of the
8photograph, motion picture, videotape or other visual representation, or the making,
9possession, or distribution of the
reproduction, does not violate s. 948.05 or 948.12,
10a parent, guardian, or legal custodian of the child may do any of the following:
AB60,4,1311 (a) Make Capture and possess the photograph, motion picture, videotape or
12other visual
representation or make and possess the reproduction of depicting the
13child.
AB60,4,1614 (b) Distribute a photograph, motion picture, videotape or other visual
15representation captured or possessed under par. (a), or distribute a reproduction
16made or possessed under par. (a), if the distribution is not for commercial purposes.
AB60,4,20 17(4) This section does not apply to a person who receives a photograph, motion
18picture, videotape or other visual
representation or reproduction of depicting a child
19from a parent, guardian or legal custodian of the child under sub. (3) (b), if the
20possession and distribution are not for commercial purposes.
AB60,4,2121 (End)
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