948.11(4)(b)5.
5. A library that receives funding from any unit of government.
948.11(5)
(5) Severability. The provisions of this section, including the provisions of
sub. (4), are severable, as provided in
s. 990.001 (11).
948.11 Annotation
This section is not unconstitutionally overbroad. The exemption from prosecution of libraries, educational institutions and their employes and directors does not violate equal protection rights. State v. Thiel, 183 W (2d) 505, 515 NW (2d) 847 (1994).
948.12
948.12
Possession of child pornography. Whoever possesses any undeveloped film, photographic negative, photograph, motion picture, videotape or other pictorial reproduction or audio recording of a child engaged in sexually explicit conduct under all of the following circumstances is guilty of a Class E felony:
948.12(1)
(1) The person knows that he or she possesses the material.
948.12(2)
(2) The person knows the character and content of the sexually explicit conduct shown in the material.
948.12(3)
(3) The person knows or reasonably should know that the child engaged in sexually explicit conduct has not attained the age of 18 years.
948.12 History
History: 1987 a. 332;
1995 a. 67.
948.13
948.13
Child sex offender working with children. 948.13(1)(1) In this section, "serious child sex offense" means any of the following:
948.13(1)(b)
(b) A crime under federal law or the law of any other state or, prior to May 7, 1996, under the law of this state that is comparable to a crime specified in
par. (a).
948.13(2)
(2) Whoever has been convicted of a serious child sex offense and subsequently engages in an occupation or participates in a volunteer position that requires him or her to work or interact primarily and directly with children under 16 years of age is guilty of a Class C felony.
948.13(3)
(3) Evidence that a person engages in an occupation or participates in a volunteer position relating to any of the following is prima facie evidence that the occupation or position requires him or her to work or interact primarily and directly with children under 16 years of age: teaching children, child care, youth counseling, youth organization, coaching children, parks or playground recreation or school bus driving.
948.13 History
History: 1995 a. 265.
948.20
948.20
Abandonment of a child. Whoever, with intent to abandon the child, leaves any child in a place where the child may suffer because of neglect is guilty of a Class D felony.
948.20 History
History: 1977 c. 173;
1987 a. 332 s.
35; Stats. 1987 s. 948.20.
948.21
948.21
Neglecting a child. 948.21(1)(1) Any person who is responsible for a child's welfare who, through his or her actions or failure to take action, intentionally contributes to the neglect of the child is guilty of a Class A misdemeanor or, if death is a consequence, a Class C felony.
948.21(2)
(2) Under
sub. (1), a person responsible for the child's welfare contributes to the neglect of the child although the child does not actually become neglected if the natural and probable consequences of the person's actions or failure to take action would be to cause the child to become neglected.
948.21 History
History: 1987 a. 332.
948.22
948.22
Failure to support. 948.22(1)(a)
(a) "Child support" means an amount which a person is ordered to provide for support of a child by a court of competent jurisdiction in this state or in another state, territory or possession of the United States, or, if not ordered, an amount that a person is legally obligated to provide under
s. 49.90.
948.22(1)(c)
(c) "Spousal support" means an amount which a person is ordered to provide for support of a spouse or former spouse by a court of competent jurisdiction in this state or in another state, territory or possession of the United States, or, if not ordered, an amount that a person is legally obligated to provide under
s. 49.90.
948.22(2)
(2) Any person who intentionally fails for 120 or more consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class E felony. A prosecutor may charge a person with multiple counts for a violation under this subsection if each count covers a period of at least 120 consecutive days and there is no overlap between periods.
948.22(3)
(3) Any person who intentionally fails for less than 120 consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class A misdemeanor.
948.22(4)
(4) Under this section, the following is prima facie evidence of intentional failure to provide child, grandchild or spousal support:
948.22(4)(a)
(a) For a person subject to a court order requiring child, grandchild or spousal support payments, when the person knows or reasonably should have known that he or she is required to pay support under an order, failure to pay the child, grandchild or spousal support payment required under the order.
948.22(4)(b)
(b) For a person not subject to a court order requiring child, grandchild or spousal support payments, when the person knows or reasonably should have known that he or she has a dependent, failure to provide support equal to at least the amount established by rule by the department of health and family services under
s. 46.25 (9) (a) [49.22 (9) (a)] or causing a spouse, grandchild or child to become a dependent person, or continue to be a dependent person, as defined in
s. 49.01 (2).
948.22 Note
NOTE: The bracketed language indicates the correct cross-reference. Section 46.25 was renumbered by
1995 Wis. Act 404. Corrective legislation is pending.
948.22(5)
(5) Under this section, it is not a defense that child, grandchild or spousal support is provided wholly or partially by any other person or entity.
948.22(6)
(6) Under this section, affirmative defenses include but are not limited to inability to provide child, grandchild or spousal support. A person may not demonstrate inability to provide child, grandchild or spousal support if the person is employable but, without reasonable excuse, either fails to diligently seek employment, terminates employment or reduces his or her earnings or assets. A person who raises an affirmative defense has the burden of proving the defense by a preponderance of the evidence.
948.22(7)(a)(a) Before trial, upon petition by the complainant and notice to the defendant, the court may enter a temporary order requiring payment of child, grandchild or spousal support.
948.22(7)(b)
(b) In addition to or instead of imposing a penalty authorized for a Class E felony or a Class A misdemeanor, whichever is appropriate, the court shall:
948.22(7)(b)1.
1. If a court order requiring the defendant to pay child, grandchild or spousal support exists, order the defendant to pay the amount required including any amount necessary to meet a past legal obligation for support.
948.22(7)(b)2.
2. If no court order described under
subd. 1. exists, enter such an order. For orders for child or spousal support, the court shall determine the amount of support in the manner required under
s. 767.25 or
767.51, regardless of the fact that the action is not one for a determination of paternity or an action specified in
s. 767.25 (1)
948.22(7)(bm)
(bm) Upon request, the court may modify the amount of child or spousal support payments determined under
par. (b) 2. if, after considering the factors listed in
s. 767.25 (1m) or
767.51 (5), regardless of the fact that the action is not one for a determination of paternity or an action specified in
s. 767.25 (1), the court finds, by the greater weight of the credible evidence, that the use of the percentage standard is unfair to the child or to either of the child's parents.
948.22(7)(c)
(c) An order under
par. (a) or
(b), other than an order for grandchild support, constitutes an income assignment under
s. 767.265 and may be enforced under
s. 767.30. Any payment ordered under
par. (a) or
(b), other than a payment for grandchild support, shall be made in the manner provided under
s. 767.29.
948.22 History
History: 1985 a. 29,
56;
1987 a. 332 s.
33; Stats. 1987 s. 948.22;
1989 a. 31,
212;
1993 a. 274,
481;
1995 a. 289.
948.22 Annotation
Under 940.27 (2), 1987 Stats., [now 948.22 (2)] state must prove that defendant had obligation to provide support and failed to do so for 120 days; state need not prove defendant was required to pay specific amount. Sub. (6) does not unconstitutionally shift burden of proof. State v. Duprey, 149 W (2d) 655, 439 NW (2d) 837 (Ct. App. 1989).
948.22 Annotation
Multiple prosecutions for a continuous failure to pay child support are allowed. State v. Grayson, 172 W (2d) 156, 493 NW (2d) 23 (1992).
948.22 Annotation
Jurisdiction in a criminal nonsupport action under s. 948.22 does not require that the child to be supported be a resident of Wisconsin during the charged period. State v. Gantt, 201 W (2d) 206, 548 NW (2d) 134 (Ct. App. 1996).
948.23
948.23
Concealing death of child. Any person who conceals the corpse of any issue of a woman's body with intent to prevent a determination of whether it was born dead or alive is guilty of a Class E felony.
948.23 History
History: 1977 c. 173;
1987 a. 332 s.
47; Stats. 1987 s. 948.23.
948.24
948.24
Unauthorized placement for adoption. 948.24(1)(1) Whoever does any of the following is guilty of a Class D felony:
948.24(1)(a)
(a) Places or agrees to place his or her child for adoption for anything exceeding the actual cost of the hospital and medical expenses of the mother and the child incurred in connection with the child's birth, and of the legal and other services rendered in connection with the adoption.
948.24(1)(b)
(b) For anything of value, solicits, negotiates or arranges the placement of a child for adoption except under
s. 48.833.
948.24(1)(c)
(c) In order to receive a child for adoption, gives anything exceeding the actual cost of the hospital and medical expenses of the mother and the child incurred in connection with the child's birth, and of the legal and other services rendered in connection with the adoption.
948.24 History
History: 1981 c. 81;
1987 a. 332 s.
50; Stats. 1987 s. 948.24;
1989 a. 161.
948.30
948.30
Abduction of another's child; constructive custody. 948.30(1)(1) Any person who, for any unlawful purpose, does any of the following is guilty of a Class C felony:
948.30(1)(a)
(a) Takes a child who is not his or her own by birth or adoption from the child's home or the custody of his or her parent, guardian or legal custodian.
948.30(1)(b)
(b) Detains a child who is not his or her own by birth or adoption when the child is away from home or the custody of his or her parent, guardian or legal custodian.
948.30(2)
(2) Any person who, for any unlawful purpose, does any of the following is guilty of a Class B felony:
948.30(2)(a)
(a) By force or threat of imminent force, takes a child who is not his or her own by birth or adoption from the child's home or the custody of his or her parent, guardian or legal custodian.
948.30(2)(b)
(b) By force or threat of imminent force, detains a child who is not his or her own by birth or adoption when the child is away from home or the custody of his or her parent, guardian or legal custodian.
948.30(3)
(3) For purposes of
subs. (1) (a) and
(2) (a), a child is in the custody of his or her parent, guardian or legal custodian if:
948.30(3)(a)
(a) The child is in the actual physical custody of the parent, guardian or legal custodian; or
948.30(3)(b)
(b) The child is not in the actual physical custody of his or her parent, guardian or legal custodian, but the parent, guardian or legal custodian continues to have control of the child.
948.30 History
History: 1987 a. 332.
948.31
948.31
Interference with custody by parent or others. 948.31(1)(a)(a) In this subsection, "legal custodian of a child" means:
948.31(1)(a)1.
1. A parent or other person having legal custody of the child under an order or judgment in an action for divorce, legal separation, annulment, child custody, paternity, guardianship or habeas corpus.
948.31(1)(a)2.
2. The department of health and family services or the department of corrections or any person, county department under
s. 46.215,
46.22 or
46.23 or licensed child welfare agency, if custody or supervision of the child has been transferred under
ch. 48 or
938 to that department, person or agency.
948.31(1)(b)
(b) Except as provided under
chs. 48 and
938, whoever intentionally causes a child to leave, takes a child away or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period from a legal custodian with intent to deprive the custodian of his or her custody rights without the consent of the custodian is guilty of a Class C felony. This paragraph is not applicable if the court has entered an order authorizing the person to so take or withhold the child. The fact that joint legal custody has been awarded to both parents by a court does not preclude a court from finding that one parent has committed a violation of this paragraph.
948.31(2)
(2) Whoever causes a child to leave, takes a child away or withholds a child for more than 12 hours from the child's parents, or the child's mother in the case of a nonmarital child where parents do not subsequently intermarry under
s. 767.60, without the consent of the parents or the mother, is guilty of a Class E felony. This subsection is not applicable if legal custody has been granted by court order to the person taking or withholding the child.
948.31(3)
(3) Any parent, or any person acting pursuant to directions from the parent, who does any of the following is guilty of a Class C felony:
948.31(3)(a)
(a) Intentionally conceals a child from the child's other parent.
948.31(3)(b)
(b) After being served with process in an action affecting the family but prior to the issuance of a temporary or final order determining child custody rights, takes the child or causes the child to leave with intent to deprive the other parent of physical custody as defined in
s. 822.02 (9).
948.31(3)(c)
(c) After issuance of a temporary or final order specifying joint legal custody rights and periods of physical placement, takes a child from or causes a child to leave the other parent in violation of the order or withholds a child for more than 12 hours beyond the court-approved period of physical placement or visitation period.
948.31(4)(a)(a) It is an affirmative defense to prosecution for violation of this section if the action:
948.31(4)(a)1.
1. Is taken by a parent or by a person authorized by a parent to protect his or her child in a situation in which the parent or authorized person reasonably believes that there is a threat of physical harm or sexual assault to the child;
948.31(4)(a)2.
2. Is taken by a parent fleeing in a situation in which the parent reasonably believes that there is a threat of physical harm or sexual assault to himself or herself;
948.31(4)(a)3.
3. Is consented to by the other parent or any other person or agency having legal custody of the child; or
948.31(4)(b)
(b) A defendant who raises an affirmative defense has the burden of proving the defense by a preponderance of the evidence.
948.31(6)
(6) In addition to any other penalties provided for violation of this section, a court may order a violator to pay restitution, regardless of whether the violator is placed on probation under
s. 973.09, to provide reimbursement for any reasonable expenses incurred by any person or any governmental entity in locating and returning the child. Any such amounts paid by the violator shall be paid to the person or governmental entity which incurred the expense on a prorated basis. Upon the application of any interested party, the court shall hold an evidentiary hearing to determine the amount of reasonable expenses.
948.31 Annotation
"Imminent physical harm" under (4) discussed. State v. McCoy, 143 W (2d) 274, 421 NW (2d) 107 (1988).
948.35
948.35
Solicitation of a child to commit a felony.
