LRB-4393/1
CMH:bjk:rs
2009 - 2010 LEGISLATURE
February 23, 2010 - Introduced by Representatives Staskunas, Berceau, Brooks
and Suder, cosponsored by Senators Lassa and Sullivan. Referred to
Committee on Criminal Justice.
AB769,1,4 1An Act to create 939.32 (1) (cr) and (de) and 971.23 (11) of the statutes; relating
2to:
evidentiary recordings of persons under the age of 18 engaging in sexually
3explicit conduct and attempt of certain sex crimes against children and
4providing penalties.
Analysis by the Legislative Reference Bureau
Under current law, a district attorney must disclose to the defense, and permit
the defense to inspect, copy, or photograph, any physical evidence that the district
attorney intends to use as evidence against that defendant in a trial. Under this bill,
if the evidence is a recording of a child engaging in sexually explicit conduct, the
defense may inspect the recording only in a location maintained by the court or a law
enforcement agency, one of which must, under this bill, retain possession, custody,
and control of the recording and must provide the defense opportunity to examine,
inspect, and view the recording. The defense may receive a copy for limited purposes
only if a court finds that the defense has not had opportunity to examine, inspect, or
view the recording.
Under current law, a person who causes a person under the age of 18 to view
or listen to sexually explicit conduct is guilty of a felony if the viewing or listening
is for sexual arousal or gratification of the actor or for humiliating or degrading the
person under the age of 18. Also under current law, a person who communicates via
a computer with an individual whom the person believes is under 16 years old with
the intent to have sexual intercourse or sexual contact with an individual under 16

years old is guilty of a felony. This bill makes the attempt to do either of these crimes
a felony punishable as the completed crime would currently be punishable.
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:
AB769, s. 1 1Section 1. 939.32 (1) (cr) and (de) of the statutes are created to read:
AB769,2,32 939.32 (1) (cr) Whoever attempts to commit a crime under s. 948.055 (1) is
3subject to the penalty for the completed act, as provided in s. 948.055 (2).
AB769,2,54 (de) Whoever attempts to commit a crime under s. 948.075 (1r) is subject to the
5penalty provided in that subsection for the completed act.
AB769, s. 2 6Section 2. 971.23 (11) of the statutes is created to read:
AB769,2,77 971.23 (11) Child pornography recordings. (a) In this subsection:
AB769,2,118 1. "Defense" means the defendant, his or her attorney, and any individual
9retained by the defendant or his or her attorney for the purpose of providing
10testimony if the testimony is expert testimony that relates to an item or material
11included under par. (b).
AB769,2,1312 2. "Reasonably available" means sufficient opportunity for inspection, viewing,
13and examination at a law enforcement or government facility.
AB769,2,1414 3. "Sexually explicit conduct" has the meaning given in s. 948.01 (7).
AB769,3,315 (b) Any undeveloped film, photographic negative, photograph, motion picture,
16videotape, or recording, which includes any item or material that would be included
17under s. 948.01 (3r), or any copy of the foregoing, that is of a person who has not
18attained the age of 18 and who is engaged in sexually explicit conduct and that is in

1the possession, custody, and control of the state shall remain in the possession,
2custody, and control of a law enforcement agency or a court but shall be made
3reasonably available to the defense.
AB769,3,114 (c) 1. Notwithstanding sub. (1) (e) and (g), a court shall deny any request by the
5defense to provide, and a district attorney or law enforcement agency may not
6provide to the defense, any item or material required in par. (b) to remain in the
7possession, custody, and control of a law enforcement agency or court, except that a
8court may order that a copy of an item or material included under par. (b) be provided
9to the defense if that court finds that a copy of the item or material has not been made
10reasonably available to the defense. The defense shall have the burden to establish
11that the item or material has not been made reasonably available.
AB769,3,1612 2. If a court orders under subd. 1. a copy of an item or material included under
13par. (b) to be provided to the defense, the court shall enter a protective order under
14sub. (6) that includes an order that the copy provided to the defense may not be
15copied, printed, or disseminated by the defense and shall returned to the court or law
16enforcement agency, whichever is appropriate, at the completion of the trial.
AB769,3,1917 (d) Any item or material that is required under par. (b) to remain in possession,
18custody, and control of a law enforcement agency or court is not subject to the right
19of inspection or copying under s. 19.35 (1).
AB769, s. 3 20Section 3. Initial applicability.
AB769,3,2221 (1) The treatment of section 971.23 (11) of the statutes first applies to any item
22or material that has not been provided on the effective date of this subsection.
AB769,3,2323 (End)
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