AB1010: Bill Text

LRB-4615/1

MGD:lmk&jld:rs

2005 - 2006 LEGISLATURE

2005 Assembly BILL 1010

February 10, 2006 - Introduced by Representatives Vukmir, Staskunas, Cullen, Kaufert, Gronemus, Montgomery, Jeskewitz, Strachota, Albers, Gunderson, Suder, Turner, Ainsworth, Fields, Musser, Sinicki and Lehman, cosponsored by Senators Roessler, Grothman, Lazich, Olsen, Kanavas and Lassa. Referred to Committee on Criminal Justice and Homeland Security.

AB1010,1,8 An Act to renumber 302.116 (1) (a), 973.075 (5) (a) and 973.075 (5) (b); to renumber and amend 973.075 (5) (intro.); to amend 29.934 (1) (d), 968.20 (1) (intro.) and 973.075 (4); and to create 301.03 (20), 302.116 (1) (ac), 302.116 (1) (ae), 302.116 (1) (ag), 302.116 (1) (aq), 302.116 (3), 304.061, 973.075 (1) (f), 973.075 (4m), 973.075 (5) (bm), 973.075 (5r) and 973.09 (8) of the statutes; relating to: seizure of a computer used in committing a child sex offense, the disposition of certain forfeited property, the use of a computer by a person convicted of a child sex offense, and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill permits the state and local law enforcement agencies, through forfeiture proceedings, to seize and dispose of computers that were used or that were to be used in the commission of certain child sex offenses. It also changes how law enforcement agencies may dispose of forfeited property of all types under certain circumstances. In addition, it regulates the use of computers by child sex offenders who are on probation, parole, or extended supervision (ES).

Forfeiture of computers used in committing a serious child sex offense

Under current law, the state and local law enforcement agencies may acquire certain property involved in the commission of crime through a forfeiture proceeding, which is generally initiated after the end of the criminal case. The forfeiture law applies to all property directly or indirectly derived from the commission of a crime. It also covers certain other property related to the commission of a crime, including: 1) an illegal controlled substance and equipment used in committing a crime relating to a controlled substance; 2) a vehicle used to transport property used or received in committing a felony; 3) a vehicle used in committing a crime relating to prostitution; 4) property used in committing a stalking offense or a criminal violation of a domestic abuse, child abuse, or harassment restraining order or injunction; and 5) pirated, bootlegged, and counterfeit recordings and any equipment used to make them. Current law also permits a state or local law enforcement agency to retain contraband that it has seized, which includes machines or materials (including computers) that are used to create other contraband items.

In general, a law enforcement agency that seizes property that is ultimately forfeited may sell the property. (If the seized property is a vehicle, the agency may retain it for official use or sell it.) The agency may retain 50 percent of the amount it receives from any sale to cover its expenses. The remainder is deposited in the school fund. Current law, however, provides some protection for certain innocent owners of vehicles and for others — such as banks or finance companies — having a property interest in seized items. First, if the state seeks the forfeiture of a vehicle, but the owner of the vehicle (such as a family member or business partner) demonstrates that he or she did not consent to the vehicle's use in connection with the crime, the vehicle is not subject to forfeiture. The second protection applies if property that is forfeited and sold was securing a loan and the holder of the security interest did not consent to vehicle's use in connection with the crime. In such a case, the innocent security interest holder is to be paid the value of his or her interest in the property from the proceeds of the sale. This protection applies in cases involving vehicles, property used in committing a stalking offense or in violating a domestic abuse, child abuse, or harassment restraining order or injunction, and equipment used to make pirated, bootlegged, or counterfeit recordings.

Under this bill, a computer is subject to forfeiture if: 1) it is used in the commission of a serious child sex offense; or 2) it is used in the commission of any crime to which a person pleads guilty or no contest if the person does so in a case in which he or she has been charged with a serious child sex offense (a related offense). The bill defines "serious child sex offense" to mean certain forms of sexual assault or sexual exploitation of a child, incest, certain forms of child enticement, using a computer to facilitate a child sex crime, or possession of child pornography. The bill, however, provides protections for innocent owners and innocent security interest holders like those provided under current law with respect to vehicles. The bill also requires that the computer be returned to an owner (such as a spouse, a business partner, or an employer of the person committing the offense) within 30 days after being seized, unless a court determines, at the request of the agency that seized the computer, that there is probable cause to believe that the owner of the computer knew that it was being used or was to be used in the commission of the crime.

The bill contains two provisions related to data on seized computers. First, regardless of whether it is required to return the computer to an owner, the agency may copy any data from the computer if it has probable cause to believe that the computer was being used or was to be used in the commission of a serious child sex crime or a related offense. Second, if a computer is forfeited under the bill, the agency that seized the computer must purge data that are or represent contraband or that relate to serious child sex offenses from it before selling it or, as discussed in the next section of this analysis, returning it to an innocent security interest holder.

Disposition of forfeited property generally and innocent security interest holders

This bill restricts the right of a law enforcement agency to sell forfeited property of any type under certain circumstances. Under the bill, if forfeited property is subject to a security interest, there is only one innocent security interest holder, and that person and the agency believe that the proceeds of any sale of the forfeited property will be less than the amount of the security interest, the agency must turn over the forfeited property to the innocent security interest holder.

Restrictions on and monitoring of the use of computers by child sex offenders

Under current law, a person released from the Wisconsin state prisons is generally subject to supervision by the Department of Corrections (DOC), through either parole (for offenses committed before December 31, 1999) or ES (for offenses committed on or after that date). DOC may impose conditions on a person released to parole, and DOC and the court may impose conditions on a person released to ES. DOC and the court may also impose conditions on persons placed on probation. Current law specifies certain conditions that may or must be imposed in certain types of cases, including several for cases involving sex offenses.

This bill restricts the use of a computer by a person who has committed a serious child sex offense (a child sex offender) and who is placed on parole or ES. Under the bill, as a condition of parole or ES, a child sex offender may not use a computer unless it is running software that prevents the person from accessing computerized child pornography or that records any such access for review by the person's parole or ES agent. The bill also specifies that, if it places a child sex offender on probation, the court may impose the same prohibition as a condition of probation. In addition, the bill mandates all of the following for each child sex offender who is placed on parole, ES, or probation: 1) he or she must consent to DOC searching his or her computer at any time; 2) he or she must allow DOC to monitor and review his or her use of any computer to communicate with others; and 3) he or she must allow DOC to install and use software, on any computer that he or she uses, to help prevent the computer from being used to entice a child. Finally, the bill requires DOC to monitor the use of computers by child sex offenders who are placed on parole, ES, or probation.

Other information

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

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:

AB1010, s. 1 Section 1. 29.934 (1) (d) of the statutes is amended to read:

AB1010,4,3 29.934 (1) (d) The provisions of s. 973.075 (1) (b) 2m. and (5) (am) and (c) apply to boats and vehicles, other than motor vehicles, under this subsection.

AB1010, s. 2 Section 2. 301.03 (20) of the statutes is created to read:

AB1010,4,7 301.03 (20) Monitor the use of computers, as defined in s. 943.70 (1) (am), by child sex offenders, as defined in s. 302.116 (1) (ac), who are on probation, parole, or extended supervision.

AB1010, s. 3 Section 3. 302.116 (1) (a) of the statutes is renumbered 302.116 (1) (at).

AB1010, s. 4 Section 4. 302.116 (1) (ac) of the statutes is created to read:

AB1010,4,11 302.116 (1) (ac) "Child sex offender" means a person who has been convicted of a serious child sex offense.

AB1010, s. 5 Section 5. 302.116 (1) (ae) of the statutes is created to read:

AB1010,4,13 302.116 (1) (ae) "Computer" has the meaning given in s. 943.70 (1) (am).

AB1010, s. 6 Section 6. 302.116 (1) (ag) of the statutes is created to read:

AB1010,4,18 302.116 (1) (ag) "Computerized child pornography" means an audio recording, a video recording, or an image of a child engaged in sexually explicit conduct, as defined in s. 948.01 (7), that may be viewed or heard by using a computer, as defined in s. 943.70 (1) (am).

AB1010, s. 7 Section 7. 302.116 (1) (aq) of the statutes is created to read:

AB1010,4,20 302.116 (1) (aq) "Serious child sex offense" means any of the following:

AB1010,5,3 1. A crime under s. 940.22 (2) or 940.225 (2) (c) or (cm), if the victim is under 18 years of age at the time of the offense, or a crime under s. 948.02 (1) or (2), 948.025 (1), 948.05 (1) or (1m), 948.06, 948.07 (1), (2), (3), or (4), 948.075, or 948.12.

AB1010,5,6 2. A crime under federal law, under the law of any other state, or, if committed before the effective date of this subdivision .... [revisor inserts date], under the law of this state, if the crime is comparable to a crime specified in subd. 1.

AB1010,5,8 3. A conspiracy, solicitation, or attempt to commit an offense under subd. 1. or 2.

AB1010, s. 8 Section 8. 302.116 (3) of the statutes is created to read:

AB1010,5,11 302.116 (3) All of the following shall be conditions of extended supervision for each child sex offender:

AB1010,5,14 (a) He or she may not use a computer unless it is running software that prevents him or her from obtaining access to computerized child pornography or that records any such access for review by his or her extended supervision agent.

AB1010,5,17 (b) He or she shall consent to a search by the department, at any time, of any computer that he or she uses and shall consent to the use of anything seized from the computer as evidence in any administrative or court proceeding.

AB1010,5,19 (c) He or she shall allow the department to monitor and review his or her use of any computer to communicate with others.

AB1010,5,22 (d) He or she shall allow the department to install and use software, on any computer that he or she uses, for the purpose of preventing the computer from being used in preparation for or in conjunction with a violation of s. 948.07 or 948.075.

AB1010, s. 9 Section 9. 304.061 of the statutes is created to read:

AB1010,5,25 304.061 Parole conditions for a serious child sex offender. (1) In this section:

AB1010,6,1 (a) "Child sex offender" has the meaning given in s. 302.116 (1) (ac).

AB1010,6,2 (b) "Computer" has the meaning given in s. 943.70 (1) (am).