SB580: Bill Text

2005 Senate BILL 580

February 7, 2006 - Introduced by Senators Darling, Roessler and Plale, cosponsored by Representatives Jeskewitz, Suder, Gronemus, Strachota, Ballweg, Ainsworth, Vos, Townsend, Kreibich, Sheridan, Musser, Lamb, M. Williams, Stone, Kleefisch, Kaufert, Petrowski, Albers, Owens and Krawczyk. Referred to Committee on Judiciary, Corrections and Privacy.

SB580,1,10 An Act to renumber 814.75 (1), 814.76 (1) and 948.075 (1); to renumber and amend 939.623, 939.624 and 948.075 (3); to amend 46.07, 48.982 (4) (a), 48.982 (6) (a), 48.982 (7) (a), 301.32 (1), 302.13, 303.01 (8) (b), 948.05 (1) (intro.), 948.05 (1m), 948.05 (2), 948.12 (1m) (intro.), 948.12 (2m) (intro.), 948.13 (2) (a), 948.13 (2m) (a) (intro.), 948.13 (3) and 973.05 (2m); and to create 20.410 (1) (gj), 20.433 (1) (gj), 20.455 (2) (gj), 25.67 (2) (a) 3., 303.01 (8) (c) 7m., 303.065 (5) (cg), 814.75 (1g), 814.76 (1g), 939.617, 948.075 (1g), 948.075 (3) (a) to (k) and 973.042 of the statutes; relating to: child pornography, sexual exploitation of a child, using a computer to facilitate a child sex crime, child sex offenders working with children, making appropriations, and providing penalties.

Analysis by the Legislative Reference Bureau

This bill makes a number of changes in laws relating to sex offenses against children.

Penalties and surcharges for child pornography offenses and for sexual exploitation of a child

Current law prohibits a person from knowingly possessing any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct. In addition, current law prohibits a person from knowingly exhibiting or playing a recording of a child engaged in sexually explicit conduct. A person who violates either of these prohibitions relating to child pornography is guilty of a Class I felony.

Under a separate statute, current law prohibits a person from sexually exploiting a child. Specifically, it prohibits recording or displaying a child engaged in sexually explicit conduct and employing, using, persuading, inducing, enticing, or coercing any child to engage in sexually explicit conduct if done for the purpose of recording or displaying the conduct. That statute also prohibits a person from knowingly producing, performing in, profiting from, promoting, importing into the state, reproducing, advertising, selling, or distributing, or possessing with intent to sell or distribute, any recording of a child engaging in sexually explicit conduct. A person who violates one of these prohibitions is guilty of a Class F felony.

This bill reclassifies the crimes described in the preceding two paragraphs as Class C felonies. (The maximum fine, the maximum sentence length, and the maximum term of confinement for Class C, F, and I felonies are set forth in the table below.) In addition, under the bill, if a person is convicted of one of those crimes, the court must sentence the person to prison and must impose an initial term of confinement of at least three years for a child pornography conviction and at least five years for a conviction for sexually exploiting a child. The court may not place a defendant who is convicted of one of those crimes on probation. - See PDF for table

The bill also requires the court to impose a child pornography surcharge on any person convicted of a child pornography offense or of sexual exploitation of a child. The surcharge is $500 for each image or copy of an image associated with the offense, with the number of images to be determined by the judge. Fifty percent of the surcharge goes to the Department of Corrections to pay for its operations; 30 percent of the surcharge goes to the Department of Justice to pay for investigating child pornography offenses and sexual exploitation of children; and 20 percent of it goes to the children's trust fund for various grant programs.

Proof of and penalties for using a computer to facilitate a child sex crime

Current law prohibits a person from using a computerized communication system to communicate with an individual who the actor believes is under 16 with intent to have sexual contact or sexual intercourse with the individual. In order to show the person's intent, the state must prove that he or she did an act in furtherance of his or her intent other than using the computerized communication system to communicate with the individual (the other act requirement).

Under this bill, if a person is convicted of this offense, the court must sentence the person to prison and must impose an initial term of confinement of at least five years. The court may not place the defendant on probation. The bill also specifies some of the acts that may be used to satisfy the other act requirement. They include: 1) traveling or making arrangements for travel or a hotel with the intent to meet the individual; 2) transmitting an image of any lewd act to the individual; 3) speaking with the individual; 4) obtaining an image of the individual; 5) sending any item to or receiving other items from the individual; and 6) acquiring sex toys, intimate apparel, or similar items.

Child sex offender working with children

Current law prohibits a person who has committed a serious child sex offense from engaging in an occupation or participating in a volunteer position that requires him or her to work or interact primarily and directly with children who are less than 16 years old. A person who violates this prohibition is guilty of a Class F felony. This bill eliminates the reference to "primarily" in this prohibition, making the prohibition applicable to any occupation or volunteer position that requires a person to work directly with children.

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:

SB580, s. 1 Section 1. 20.410 (1) (gj) of the statutes is created to read:

SB580,3,4 20.410 (1) (gj) General operations; child pornography surcharge. All moneys received as part A of any child pornography surcharge imposed under s. 973.042 to operate institutions and to provide field and administrative services.

SB580, s. 2 Section 2. 20.433 (1) (gj) of the statutes is created to read:

SB580,3,8 20.433 (1) (gj) Grants to organizations; child pornography surcharge. All moneys received as part C of any child pornography surcharge imposed under s. 973.042 for grants to organizations under s. 48.982 (4), (6), and (7).

SB580, s. 3 Section 3. 20.455 (2) (gj) of the statutes is created to read:

SB580,4,3 20.455 (2) (gj) General operations; child pornography surcharge. All moneys received as part B of any child pornography surcharge imposed under s. 973.042 for investigating offenses under s. 948.05 or 948.12.

SB580, s. 4 Section 4. 25.67 (2) (a) 3. of the statutes is created to read:

SB580,4,6 25.67 (2) (a) 3. Moneys received as part C of any child pornography surcharge under s. 973.042.

SB580, s. 5 Section 5. 46.07 of the statutes, as affected by 2005 Wisconsin Act 25, is amended to read:

SB580,5,2 46.07 Property of patients or residents. All money including wages and other property delivered to an officer or employee of any institution for the benefit of a patient or resident shall immediately be delivered to the steward, who shall enter the money upon the steward's books to the credit of the patient or resident. The property shall be used only under the direction and with the approval of the superintendent and for the crime victim and witness assistance surcharge under s. 973.045 (4), the delinquency victim and witness assistance surcharge under s. 938.34 (8d) (c), the deoxyribonucleic acid analysis surcharge under s. 973.046, the child pornography surcharge under s. 973.042, the drug offender diversion surcharge under s. 973.043, or the benefit of the patient or resident. If the money remains uncalled for for one year after the patient's or resident's death or departure from the institution, the superintendent shall deposit the money in the general fund. If any patient or resident leaves property, other than money, uncalled for at an institution for one year, the superintendent shall sell the property, and the proceeds shall be deposited in the general fund. If any person satisfies the department, within 5 years after the deposit, of his or her right to the deposit, the department shall direct the department of administration to draw its warrant in favor of the claimant and it shall charge the same to the appropriation made by s. 20.913 (3) (c).

SB580, s. 6 Section 6. 48.982 (4) (a) of the statutes, as affected by 2005 Wisconsin Act 25, is amended to read:

SB580,5,9 48.982 (4) (a) From the appropriations under s. 20.433 (1) (b), (gj), (h), (i), (k), (m), and (q), the board shall award grants to organizations in accordance with the plan developed under sub. (2) (a). In each of the first 2 fiscal years in which grants are awarded, no organization may receive a grant or grants totaling more than $30,000.

SB580, s. 7 Section 7. 48.982 (6) (a) of the statutes, as affected by 2005 Wisconsin Act 25, is amended to read:

SB580,5,16 48.982 (6) (a) From the appropriations under s. 20.433 (1) (b), (gj), (h), (i), (k), (ma), and (q), the board shall award grants to organizations in accordance with the request-for-proposal procedures developed under sub. (2) (a). No organization may receive a grant or grants under this subsection totaling more than $150,000 in any year.

SB580, s. 8 Section 8. 48.982 (7) (a) of the statutes, as affected by 2005 Wisconsin Act 25, is amended to read:

SB580,5,21 48.982 (7) (a) From the appropriations under s. 20.433 (1) (b), (gj), (h), (i), (k), and (q), the board shall award grants to organizations in accordance with the plan developed under sub. (2) (a).

SB580, s. 9 Section 9. 301.32 (1) of the statutes, as affected by 2005 Wisconsin Act 25, is amended to read:

SB580,6,18 301.32 (1) Property delivered to warden or superintendent; credit and debit. All money and other property delivered to an employee of any state correctional institution for the benefit of a prisoner or resident shall be delivered to the warden or superintendent, who shall enter the property upon his or her accounts to the credit of the prisoner or resident. The property may be used only under the direction and with the approval of the superintendent or warden and for the crime victim and witness assistance surcharge under s. 973.045 (4), the delinquency victim and witness assistance surcharge under s. 938.34 (8d) (c), the deoxyribonucleic acid analysis surcharge under s. 973.046, the child pornography surcharge under s. 973.042, the drug offender diversion surcharge under s. 973.043, or the benefit of the prisoner or resident. If the money remains uncalled for for one year after the prisoner's or resident's death or departure from the state correctional institution, the superintendent shall deposit it in the general fund. If any prisoner or resident leaves property, other than money, uncalled for at a state correctional institution for one year, the superintendent shall sell the property and deposit the proceeds in the general fund, donate the property to a public agency or private, nonprofit organization or destroy the property. If any person satisfies the department, within 5 years after the deposit, of his or her right to the deposit, the department shall direct the department of administration to draw its warrant in favor of the claimant and it shall charge the same to the appropriation made by s. 20.913 (3) (bm).

SB580, s. 10 Section 10. 302.13 of the statutes, as affected by 2005 Wisconsin Act 25, is amended to read:

SB580,7,2 302.13 Preservation of property an inmate brings to prison. The department shall preserve money and effects, except clothes, in the possession of an inmate when admitted to the prison and, subject to the crime victim and witness assistance surcharge under s. 973.045 (4), the deoxyribonucleic acid analysis surcharge under s. 973.046, the child pornography surcharge under s. 973.042, and the drug offender diversion surcharge under s. 973.043, shall restore the money and effects to the inmate when discharged.

SB580, s. 11 Section 11. 303.01 (8) (b) of the statutes, as affected by 2005 Wisconsin Act 25, is amended to read:

SB580,7,16 303.01 (8) (b) The department shall distribute earnings of an inmate or resident, other than an inmate or resident employed under sub. (2) (em), for the crime victim and witness assistance surcharge under s. 973.045 (4), for the delinquency victim and witness assistance surcharge under s. 938.34 (8d) (c), for the deoxyribonucleic acid analysis surcharge under s. 973.046 (4) and for compliance with s. 303.06 (2) and may distribute earnings for the support of the inmate's or resident's dependents and for other obligations either acknowledged by the inmate or resident in writing or which have been reduced to judgment that may be satisfied according to law. The department may also distribute earnings for the child pornography surcharge under s. 973.042 or the drug offender diversion surcharge under s. 973.043, but only if the inmate or resident has first provided for the reasonable support of his or her dependents.

SB580, s. 12 Section 12. 303.01 (8) (c) 7m. of the statutes is created to read:

SB580,7,19 303.01 (8) (c) 7m. Payment of the child pornography surcharge under s. 973.042.

SB580, s. 13 Section 13. 303.065 (5) (cg) of the statutes is created to read:

SB580,7,21 303.065 (5) (cg) Payment of the child pornography surcharge under s. 973.042.

SB580, s. 14 Section 14. 814.75 (1) of the statutes is renumbered 814.75 (1r).

SB580, s. 15 Section 15. 814.75 (1g) of the statutes is created to read:

SB580,7,24 814.75 (1g) The child pornography surcharge under s. 973.042.

SB580, s. 16 Section 16. 814.76 (1) of the statutes is renumbered 814.76 (1r).

SB580, s. 17 Section 17. 814.76 (1g) of the statutes is created to read:

SB580,8,2 814.76 (1g) The child pornography surcharge under s. 973.042.

SB580, s. 18 Section 18. 939.617 of the statutes is created to read:

SB580,8,10 939.617 Mandatory minimum sentence for certain child sex offenses. If a person is convicted of a violation of s. 948.05, 948.075, or 948.12, the court shall impose a bifurcated sentence under s. 973.01. The term of confinement in prison portion of the bifurcated sentence shall be at least 5 years for violations of s. 948.05 or 948.075 and 3 years for violations of s. 948.12. Otherwise the penalties for the crime apply, subject to any applicable penalty enhancement. The court may not place the defendant on probation.

SB580, s. 19 Section 19. 939.623 of the statutes is renumbered 939.618, and 939.618 (title), as renumbered, is amended to read:

SB580,8,14 939.618 (title) Increased penalty; Mandatory minimum sentence for repeat serious sex crimes.

SB580, s. 20 Section 20. 939.624 of the statutes is renumbered 939.619, and 939.619 (title), as renumbered, is amended to read:

SB580,8,18 939.619 (title) Increased penalty; Mandatory minimum sentence for repeat serious violent crimes.

SB580, s. 21 Section 21. 948.05 (1) (intro.) of the statutes is amended to read:

SB580,8,22 948.05 (1) (intro.) Whoever does any of the following with knowledge of the character and content of the sexually explicit conduct involving the child is guilty of a Class F C felony:

SB580, s. 22 Section 22. 948.05 (1m) of the statutes is amended to read:

SB580,9,5 948.05 (1m) Whoever produces, performs in, profits from, promotes, imports into the state, reproduces, advertises, sells, distributes, or possesses with intent to sell or distribute, any recording of a child engaging in sexually explicit conduct is guilty of a Class F C felony if the person knows the character and content of the sexually explicit conduct involving the child and if the person knows or reasonably should know that the child engaging in the sexually explicit conduct has not attained the age of 18 years.

SB580, s. 23 Section 23. 948.05 (2) of the statutes is amended to read:

SB580,9,9 948.05 (2) A person responsible for a child's welfare who knowingly permits, allows or encourages the child to engage in sexually explicit conduct for a purpose proscribed in sub. (1) (a) or (b) or (1m) is guilty of a Class F C felony.

SB580, s. 24 Section 24. 948.075 (1) of the statutes is renumbered 948.075 (1r).

SB580, s. 25 Section 25. 948.075 (1g) of the statutes is created to read:

SB580,9,13 948.075 (1g) In this section, "representation" has the meaning given in s. 942.09 (1) (c).

SB580, s. 26 Section 26. 948.075 (3) of the statutes is renumbered 948.075 (3) (intro.) and amended to read:

SB580,9,19 948.075 (3) (intro.) Proof that the actor did an act, other than use a computerized communication system to communicate with the individual, to effect the actor's intent under sub. (1) (1r) shall be necessary to prove that intent. The following are examples of acts that may be used to meet this requirement:

SB580, s. 27 Section 27. 948.075 (3) (a) to (k) of the statutes are created to read:

SB580,9,21 948.075 (3) (a) Traveling any distance with the intent to meet the individual.

SB580,9,23 (b) Reserving accommodations at any hotel, as defined in s. 254.61 (3), with the intent to meet the individual.

SB580,10,3 (c) With the intent to meet the individual, making other arrangements related to travel, including making a reservation for a rental car, renting a car, or making a reservation or purchasing a ticket for bus, train, or airplane travel.

SB580,10,5 (d) Transmitting a representation of any lewd act to the individual through a computerized communication system.

SB580,10,7 (e) Orally communicating with the individual, including through a telephone or a voice over Internet service.

SB580,10,9 (f) Obtaining any representation of the individual or a person whom the actor believes is the individual through the Internet.

SB580,10,11 (g) Sending any item by any means, including mail, delivery service, or personal delivery, with the intent that it be delivered to the individual.

SB580,10,13 (h) Soliciting and receiving any item by any means, including mail, delivery service, or personal delivery, from the individual.

SB580,10,15 (i) Engaging in surveillance of or a course of conduct, as defined in s. 940.32 (1) (a), directed at the individual or a person whom the actor believes is the individual.

SB580,10,17 (j) Causing another person to engage in conduct described in par. (i) for the purpose of enabling the actor to avoid detection by a law enforcement officer.

SB580,10,19 (k) Acquiring sex toys, intimate apparel, or other items that are used primarily in the course of sexual activity.

SB580, s. 28 Section 28. 948.12 (1m) (intro.) of the statutes is amended to read:

SB580,10,24 948.12 (1m) (intro.) Whoever possesses any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct under all of the following circumstances is guilty of a Class I C felony:

SB580, s. 29 Section 29. 948.12 (2m) (intro.) of the statutes is amended to read:

SB580,11,2 948.12 (2m) (intro.) Whoever exhibits or plays a recording of a child engaged in sexually explicit conduct, if all of the following apply, is guilty of a Class I C felony: