944.21(2)(d)2.
2. Under contemporary community standards, describes or shows sexual conduct in a patently offensive way; and
944.21(2)(d)3.
3. Lacks serious literary, artistic, political, educational or scientific value, if taken as a whole.
944.21(2)(e)
(e) "Sexual conduct" means the commission of any of the following: sexual intercourse, sodomy, bestiality, necrophilia, human excretion, masturbation, sadism, masochism, fellatio, cunnilingus or lewd exhibition of human genitals.
944.21(2)(f)
(f) "Wholesale transfer or distribution of obscene material" means any transfer for a valuable consideration of obscene material for purposes of resale or commercial distribution; or any distribution of obscene material for commercial exhibition. "Wholesale transfer or distribution of obscene material" does not require transfer of title to the obscene material to the purchaser, distributee or exhibitor.
944.21(3)
(3) Whoever does any of the following with knowledge of the character and content of the material or performance and for commercial purposes is subject to the penalties under
sub. (5):
944.21(3)(a)
(a) Imports, prints, sells, has in his or her possession for sale, publishes, exhibits, or transfers any obscene material.
944.21(3)(b)
(b) Produces or performs in any obscene performance.
944.21(3)(c)
(c) Requires, as a condition to the purchase of periodicals, that a retailer accept obscene material.
944.21(4)
(4) Whoever does any of the following with knowledge of the character and content of the material is subject to the penalties under
sub. (5):
944.21(4)(a)
(a) Transfers or exhibits any obscene material to a person under the age of 18 years.
944.21(4)(b)
(b) Has in his or her possession with intent to transfer or exhibit to a person under the age of 18 years any obscene material.
944.21(5)(a)(a) Except as provided under
pars. (b) to
(e), any person violating
sub. (3) or
(4) is subject to a Class A forfeiture.
944.21(5)(b)
(b) If the person violating
sub. (3) or
(4) has one prior conviction under this section, the person is guilty of a Class A misdemeanor.
944.21(5)(c)
(c) If the person violating
sub. (3) or
(4) has 2 or more prior convictions under this section, the person is guilty of a Class D felony.
944.21(5)(d)
(d) Prior convictions under
pars. (b) and
(c) apply only to offenses occurring on or after June 17, 1988.
944.21(5)(e)
(e) Regardless of the number of prior convictions, if the violation under
sub. (3) or
(4) is for a wholesale transfer or distribution of obscene material, the person is guilty of a Class D felony.
944.21(5m)
(5m) A contract printer or employe or agent of a contract printer is not subject to prosecution for a violation of
sub. (3) regarding the printing of material that is not subject to the contract printer's editorial review or control.
944.21(6)
(6) Each day a violation under
sub. (3) or
(4) continues constitutes a separate violation under this section.
944.21(7)
(7) A district attorney may submit a case for review under
s. 165.25 (3m). No civil or criminal proceeding under this section may be commenced against any person for a violation of
sub. (3) or
(4) unless the attorney general determines under
s. 165.25 (3m) that the proceeding may be commenced.
944.21(8)(a)(a) The legislature finds that the libraries and educational institutions under
par. (b) carry out the essential purpose of making available to all citizens a current, balanced collection of books, reference materials, periodicals, sound recordings and audiovisual materials that reflect the cultural diversity and pluralistic nature of American society. The legislature further finds that it is in the interest of the state to protect the financial resources of libraries and educational institutions from being expended in litigation and to permit these resources to be used to the greatest extent possible for fulfilling the essential purpose of libraries and educational institutions.
944.21(8)(b)
(b) No person who is an employe, a member of the board of directors or a trustee of any of the following is liable to prosecution for violation of this section for acts or omissions while in his or her capacity as an employe, a member of the board of directors or a trustee:
944.21(8)(b)3.
3. Any school offering vocational, technical or adult education that:
944.21(8)(b)3.b.
b. Is exempt from taxation under section
501 (c) (3) of the internal revenue code.
944.21(8)(b)4.
4. Any institution of higher education that is accredited, as described in
s. 39.30 (1) (d), and is exempt from taxation under section
501 (c) (3) of the internal revenue code.
944.21(8)(b)5.
5. A library that receives funding from any unit of government.
944.21(9)
(9) In determining whether material is obscene under
sub. (2) (c) 1. and
3., a judge or jury shall examine individual pictures or passages in the context of the work in which they appear.
944.21(10)
(10) The provisions of this section, including the provisions of
sub. (8), are severable, as provided in
s. 990.001 (11).
944.21 Note
NOTE: The following annotations relate to this section as it existed prior to its treatment by 1987 Wis. Act. 416.
944.21 Annotation
The manner in which the store was operated and the publications displayed can be used to show knowledge by the defendant. "Pandering" includes more than active solicitation through advertising. Orito v. State, 55 W (2d) 161, 197 NW (2d) 763.
944.21 Annotation
Sufficiency of obscenity complaint and correctness of jury instructions discussed. State v. Simpson, 56 W (2d) 27, 201 NW (2d) 558.
944.21 Annotation
See note to 968.01, citing State v. Schneider, 60 W (2d) 563, 211 NW (2d) 630.
944.21 Annotation
Sub. (1) (a) is unconstitutionally overbroad. State v. Princess Cinema of Milwaukee, 96 W (2d) 646, 292 NW (2d) 807 (1980).
944.21 Annotation
Federal constitution does not mandate that juries be instructed to apply standards of hypothetical statewide community. Jenkins v. Georgia, 418 US 153.
944.21 Annotation
This section, which proscribes the sale of materials which are "lewd, obscene or indecent" but does not specifically define sexual conduct prohibited, does not meet the constitutionally required standard of providing fair notice to a dealer in such materials that his public and commercial activities might bring prosecution. Amato v. Divine, 496 F (2d) 441.
944.21 Annotation
Sub. (1) (a) meets First Amendment standards and is not unconstitutionally vague. Amato v. Divine, 558 F (2d) 364.
944.21 Annotation
A motion picture cannot be seized without prior adversary hearing. Detco, Inc. v. Neelen, 356 F Supp. 289.
944.21 Annotation
Order temporarily restraining state from enforcing the statute would not be vacated in light of U.S. Supreme Court's Miller decision on obscenity, since the probability that the express wording of this statute would be held unconstitutional was in fact greater after Miller, and its specificity requirement, than before. Detco, Inc. v. McCann, 365 F Supp. 176.
944.21 Annotation
This statute as construed prior to May 8, 1974, was unconstitutional. Prosecutions under this statute for conduct occurring prior to such date are unconstitutional as violative of due process requirements of "fair notice." Detco, Inc. v. McCann, 380 F Supp. 1366.
944.21 Annotation
This section, as interpreted in State ex rel. Chobot v. Circuit Court, 61 W (2d) 354, is constitutional. Castle News Co. v. Cahill, 461 F Supp. 174 (1978).
944.21 Annotation
From Ulysses to Portnoy: A pornography primer. Eich, 53 MLR 155.
944.23
944.23
Making lewd, obscene or indecent drawings. Whoever makes any lewd, obscene or indecent drawing or writing in public or in a public place is guilty of a Class C misdemeanor.
944.23 History
History: 1977 c. 173.
PROSTITUTION.
944.30
944.30
Prostitution. Any person who intentionally does any of the following is guilty of a Class A misdemeanor:
944.30(1)
(1) Has or offers to have or requests to have nonmarital sexual intercourse for anything of value.
944.30(2)
(2) Commits or offers to commit or requests to commit an act of sexual gratification, in public or in private, involving the sex organ of one person and the mouth or anus of another for anything of value.
944.30(3)
(3) Is an inmate of a place of prostitution.
944.30(4)
(4) Masturbates a person or offers to masturbate a person or requests to be masturbated by a person for anything of value.
944.30(5)
(5) Commits or offers to commit or requests to commit an act of sexual contact for anything of value.
944.30 Annotation
See note to Art. I, sec. 1, citing State v. Johnson, 74 W (2d) 169, 246 NW (2d) 503.
944.30 Annotation
See note to 939.30, citing Sears v. State, 94 W (2d) 128, 287 NW (2d) 785 (1980).
944.30 Annotation
See note to Art. I, sec. 1, citing State V. McCollum, 159 W (2d) 184, 464 NW (2d) 44 (Ct. App. 1990).
944.31
944.31
Patronizing prostitutes. Any person who enters or remains in any place of prostitution with intent to have nonmarital sexual intercourse or to commit an act of sexual gratification, in public or in private, involving the sex organ of one person and the mouth or anus of another, masturbation or sexual contact with a prostitute is guilty of a Class A misdemeanor.
944.32
944.32
Soliciting prostitutes. Except as provided under
s. 948.08, whoever intentionally solicits or causes any person to practice prostitution or establishes any person in a place of prostitution is guilty of a Class D felony.
944.32 History
History: 1977 c. 173;
1987 a. 332.
944.32 Annotation
Section 944.32, 1987 stats., prohibiting solicitation of prostitutes, does not violate right of free speech. Shillcutt v. State, 74 W (2d) 642, 247 NW (2d) 694.
944.32 Annotation
This section is not unconstitutionally vague or overbroad and its penalty is not disproportionate. State v. Johnson, 108 W (2d) 703, 324 NW (2d) 447 (Ct. App. 1982).
944.32 Annotation
Monetary gain is not element of crime. State v. Huff, 123 W (2d) 397, 367 NW (2d) 226 (Ct. App. 1985).
944.33(1)(1) Whoever does any of the following is guilty of a Class A misdemeanor:
944.33(1)(a)
(a) Solicits another to have nonmarital sexual intercourse or to commit an act of sexual gratification, in public or in private, involving the sex organ of one person and the mouth or anus of another, masturbation or sexual contact with a person the solicitor knows is a prostitute; or
944.33(1)(b)
(b) With intent to facilitate another in having nonmarital intercourse or committing an act of sexual gratification, in public or in private, involving the sex organ of one person and the mouth or anus of another, masturbation or sexual contact with a prostitute, directs or transports the person to a prostitute or directs or transports a prostitute to the person.
944.33(2)
(2) If the person received compensation from the earnings of the prostitute, such person is guilty of a Class C felony.
944.33(3)
(3) In a prosecution under this section, it is competent for the state to prove other similar acts by the accused for the purpose of showing the accused's intent and disposition.
944.34
944.34
Keeping place of prostitution. Whoever intentionally does any of the following is guilty of a Class D felony:
944.34(1)
(1) Keeps a place of prostitution; or
944.34(2)
(2) Grants the use or allows the continued use of a place as a place of prostitution.
944.34 History
History: 1977 c. 173.
944.34 Annotation
Conviction under (2) requires proof that defendant has authority to exclude those engaging in prostitution from use of place for prohibited acts. Shillcutt v. State, 74 W (2d) 642, 247 NW (2d) 694.
944.34 Annotation
Under (2), "grants the use" requires the prosecution to prove a single affirmative approval of the use of the premises as a place of prostitution, while "allows the continued use of" requires proof of intentional but passive acquiescence or toleration of such use on more-than-one occasion. Johnson v. State, 76 W (2d) 672, 251 NW (2d) 834.
944.36
944.36
Solicitation of drinks prohibited. Any licensee, permittee or bartender of a retail alcohol beverage establishment covered by a license or permit issued under
ch. 125 who permits an entertainer or employe to solicit a drink of any alcohol beverage, as defined in
s. 125.02 (1), or any other drink from a customer on the premises, or any entertainer or employe who solicits such drinks from any customer, is guilty of a Class B misdemeanor.
944.36 History
History: 1975 c. 39 s.
675x;
1975 c. 199; Stats. 1975 s. 944.36;
1977 c. 173;
1981 c. 79.
944.36 Annotation
Legislative Council Note, 1981: The amendment to s. 944.36 reflects the combining of s. 66.054 and ch. 176 into one chapter, ch. 125, and the definition of "alcohol beverage" in that chapter. [Bill 300-A]
