948.07 Annotation
This section includes the attempted crime, as well as the completed crime, and cannot be combined with the general attempt statute. State v. DeRango,
229 Wis. 2d 1,
599 N.W.2d 27 (Ct. App. 1999).
948.07 Annotation
The purposes of ss. 948.05, child exploitation, and 948.07, child enticement, are distinct, and two distinct crimes are envisioned by the statutes. Charging both for the same act was not multiplicitous. State v. DeRango, 2000 WI 89,
236 Wis. 2d 721,
613 N.W.2d 833.
948.07 Annotation
This section creates one crime with multiple modes of commission. The alternate modes of commission are not so dissimilar as to implicate fundamental fairness. As such, a defendant is not entitled to a unanimity instruction. State v. DeRango, 2000 WI 89,
236 Wis. 2d 721,
613 N.W.2d 833.
948.07 Annotation
This section delineates one crime with alternate modes of commission, one of which is attempt to cause a child to to go into a vehicle, building, room, or secluded place. The principles of attempt in s. 939.32 apply. That the intended victims were fictitious constituted an extraneous fact beyond the defendant's control that prevented successful enticement while not excusing the attempt to entice. State v. Koenck, 2001 WI App 93,
242 Wis. 2d 693,
626 N.W.2d 359.
948.07 Annotation
Attempted child enticement may be charged when the intervening extraneous factor that makes the offense an attempted rather than completed crime is that unbeknownst to the defendant, the "victim" is an adult government agent posing as a child. The 1st amendment is not implicated by the application of the child enticement statute to child enticements initiated over the internet as the statute regulates conduct, not speech. State v. Robins, 2002 WI 65,
253 Wis. 2d 298,
647 N.W.2d 287.
948.075
948.075
Use of a computer to facilitate a child sex crime. 948.075(1)(1) Whoever uses a computerized communication system to communicate with an individual who the actor believes or has reason to believe has not attained the age of 16 years with intent [to] have sexual contact or sexual intercourse with the individual in violation of
s. 948.02 (1) or
(2) is guilty of a Class D felony.
Effective date note
NOTE: Sub. (1) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads as shown below. The bracketed language indicates a necessary word that was omitted by Act 109. Corrective legislation is pending.
Effective date text
(1) Whoever uses a computerized communication system to communicate with an individual who the actor believes or has reason to believe has not attained the age of 16 years with intent [to] have sexual contact or sexual intercourse with the individual in violation of s. 948.02 (1) or (2) is guilty of a Class BC felony.
948.075(2)
(2) This section does not apply if, at the time of the communication, the actor reasonably believed that the age of the person to whom the communication was sent was no more than 24 months less than the age of the actor.
948.075(3)
(3) 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) shall be necessary to prove that intent.
948.075 History
History: 2001 a. 109.
948.08
948.08
Soliciting a child for prostitution. Whoever intentionally solicits or causes any child to practice prostitution or establishes any child in a place of prostitution is guilty of a Class D felony.
Effective date note
NOTE: This section is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
948.08 Soliciting a child for prostitution. Whoever intentionally solicits or causes any child to practice prostitution or establishes any child in a place of prostitution is guilty of a Class BC felony.
948.09
948.09
Sexual intercourse with a child age 16 or older. Whoever has sexual intercourse with a child who is not the defendant's spouse and who has attained the age of 16 years is guilty of a Class A misdemeanor.
948.09 History
History: 1987 a. 332.
948.095
948.095
Sexual assault of a student by a school instructional staff person. 948.095(1)(a)
(a) "School" means a public or private elementary or secondary school.
948.095(1)(b)
(b) "School staff" means any person who provides services to a school or a school board, including an employee of a school or a school board and a person who provides services to a school or a school board under a contract.
948.095(2)
(2) Whoever has sexual contact or sexual intercourse with a child who has attained the age of 16 years and who is not the defendant's spouse is guilty of a Class H felony if all of the following apply:
Effective date note
NOTE: Sub. (2) (intro.) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(2) Whoever has sexual contact or sexual intercourse with a child who has attained the age of 16 years and who is not the defendant's spouse is guilty of a Class D felony if all of the following apply:
948.095(2)(a)
(a) The child is enrolled as a student in a school or a school district.
948.095(2)(b)
(b) The defendant is a member of the school staff of the school or school district in which the child is enrolled as a student.
948.095 History
History: 1995 a. 456;
2001 a. 109.
948.10
948.10
Exposing genitals or pubic area. 948.10(1)
(1) Whoever, for purposes of sexual arousal or sexual gratification, causes a child to expose genitals or pubic area or exposes genitals or pubic area to a child is guilty of a Class A misdemeanor.
948.10(2)
(2) Subsection (1) does not apply under any of the following circumstances:
948.11
948.11
Exposing a child to harmful material or harmful descriptions or narrations. 948.11(1)(ag)
(ag) "Harmful description or narrative account" means any explicit and detailed description or narrative account of sexual excitement, sexually explicit conduct, sadomasochistic abuse, physical torture or brutality that, taken as a whole, is harmful to children.
948.11(1)(ar)1.
1. Any picture, photograph, drawing, sculpture, motion picture film or similar visual representation or image of a person or portion of the human body that depicts nudity, sexually explicit conduct, sadomasochistic abuse, physical torture or brutality and that is harmful to children; or
948.11(1)(ar)2.
2. Any book, pamphlet, magazine, printed matter however reproduced or recording that contains any matter enumerated in
subd. 1., or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexually explicit conduct, sadomasochistic abuse, physical torture or brutality and that, taken as a whole, is harmful to children.
948.11(1)(b)
(b) "Harmful to children" means that quality of any description, narrative account or representation, in whatever form, of nudity, sexually explicit conduct, sexual excitement, sadomasochistic abuse, physical torture or brutality, when it:
948.11(1)(b)1.
1. Predominantly appeals to the prurient, shameful or morbid interest of children;
948.11(1)(b)2.
2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for children; and
948.11(1)(b)3.
3. Lacks serious literary, artistic, political, scientific or educational value for children, when taken as a whole.
948.11(1)(d)
(d) "Nudity" means the showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.
948.11(1)(e)
(e) "Person" means any individual, partnership, firm, association, corporation or other legal entity.
948.11(1)(f)
(f) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.
948.11(2)(a)(a) Whoever, with knowledge of the character and content of the material, sells, rents, exhibits, plays, distributes, or loans to a child any harmful material, with or without monetary consideration, is guilty of a Class I felony if any of the following applies:
Effective date note
NOTE: Par. (a) (intro.) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(a) Whoever, with knowledge of the character and content of the material, sells, rents, exhibits, plays, distributes, or loans to a child any harmful material, with or without monetary consideration, is guilty of a Class E felony if any of the following applies:
948.11(2)(a)1.
1. The person knows or reasonably should know that the child has not attained the age of 18 years.
948.11(2)(a)2.
2. The person has face-to-face contact with the child before or during the sale, rental, exhibit, playing, distribution, or loan.
948.11(2)(am)
(am) Any person who has attained the age of 17 and who, with knowledge of the character and content of the description or narrative account, verbally communicates, by any means, a harmful description or narrative account to a child, with or without monetary consideration, is guilty of a Class I felony if any of the following applies:
Effective date note
NOTE: Par. (am) (intro.) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(am) Any person who has attained the age of 17 and who, with knowledge of the character and content of the description or narrative account, verbally communicates, by any means, a harmful description or narrative account to a child, with or without monetary consideration, is guilty of a Class E felony if any of the following applies:
948.11(2)(am)1.
1. The person knows or reasonably should know that the child has not attained the age of 18 years.
948.11(2)(am)2.
2. The person has face-to-face contact with the child before or during the communication.
948.11(2)(b)
(b) Whoever, with knowledge of the character and content of the material, possesses harmful material with the intent to sell, rent, exhibit, play, distribute, or loan the material to a child is guilty of a Class A misdemeanor if any of the following applies:
948.11(2)(b)1.
1. The person knows or reasonably should know that the child has not attained the age of 18 years.
948.11(2)(c)
(c) It is an affirmative defense to a prosecution for a violation of
pars. (a) 2.,
(am) 2., and
(b) 2. if the defendant had reasonable cause to believe that the child had attained the age of 18 years, and the child exhibited to the defendant a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that the child had attained the age of 18 years. A defendant who raises this affirmative defense has the burden of proving this defense by a preponderance of the evidence.
948.11(3)
(3) Extradition. If any person is convicted under
sub. (2) and cannot be found in this state, the governor or any person performing the functions of governor by authority of the law shall, unless the convicted person has appealed from the judgment of contempt or conviction and the appeal has not been finally determined, demand his or her extradition from the executive authority of the state in which the person is found.
948.11(4)
(4) Libraries and educational institutions. 948.11(4)(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.
948.11(4)(b)
(b) No person who is an employee, 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 employee, a member of the board of directors or a trustee:
948.11(4)(b)3.
3. Any school offering vocational, technical or adult education that:
948.11(4)(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, as defined in
s. 71.01 (6).
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 employees and directors does not violate equal protection rights. State v. Thiel,
183 Wis. 2d 505,
515 N.W.2d 847 (1994).
948.11 Annotation
The lack of a requirement in sub. (2) (a) that the defendant know the age of the child exposed to the harmful material does not render the statute unconstitutional on its face. State v. Kevin L.C.
216 Wis. 2d 166,
576 N.W.2d 62 (Ct. App. 1997).
948.11 Annotation
An individual violates this section if he or she, aware of the nature of the material, knowingly offers or presents for inspection to a specific minor material defined as harmful to children in sub. (1) (b). The personal contact between the perpetrator and the child-victim is what allows the state to impose on the defendant the risk that the victim is a minor. State v. Trochinski, 2002 WI 56,
253 Wis. 2d 38,
644 N.W.2d 891.
948.12
948.12
Possession of child pornography. 948.12(1m)
(1m) 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 felony:
Effective date note
NOTE: Sub. (1m) (intro.) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(1m) 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 E felony:
948.12(1m)(a)
(a) The person knows that he or she possesses the material.
948.12(1m)(b)
(b) The person knows the character and content of the sexually explicit conduct in the material.
948.12(1m)(c)
(c) 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(2m)
(2m) 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 felony:
Effective date note
NOTE: Sub. (2m) (intro.) is shown as amended eff. 2-1-03 by
2001 Wis. Act 109. Prior to 2-1-03 it reads:
Effective date text
(2m) 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 E felony:
948.12(2m)(a)
(a) The person knows that he or she has exhibited or played the recording.
