948.05
948.05
Sexual exploitation of a child. 948.05(1)
(1) 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 felony:
948.05(1)(a)
(a) Employs, uses, persuades, induces, entices, or coerces any child to engage in sexually explicit conduct for the purpose of recording or displaying in any way the conduct.
948.05(1)(b)
(b) Records or displays in any way a child engaged in sexually explicit conduct.
948.05(1m)
(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 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.
948.05(2)
(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 felony.
948.05(3)
(3) It is an affirmative defense to prosecution for violation of
sub. (1) (a) or
(b) or
(2) if the defendant had reasonable cause to believe 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.
948.05 Annotation
"Import" under sub. (1) (c) means bringing in from an external source and does not require a commercial element or exempt personal use. State v. Bruckner,
151 Wis. 2d 833,
447 N.W.2d 376 (Ct. App. 1989).
948.05 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.
948.055
948.055
Causing a child to view or listen to sexual activity. 948.055(1)(1) Whoever intentionally causes a child who has not attained 18 years of age to view or listen to sexually explicit conduct may be penalized as provided in
sub. (2) if the viewing or listening is for the purpose of sexually arousing or gratifying the actor or humiliating or degrading the child.
948.055(2)(a)
(a) A Class F felony if the child has not attained the age of 13 years.
948.055(2)(b)
(b) A Class H felony if the child has attained the age of 13 years but has not attained the age of 18 years.
948.055 History
History: 1987 a. 334;
1989 a. 359;
1993 a. 218 ss.
6,
7; Stats. 1993 s. 948.055;
1995 a. 67;
2001 a. 109.
948.06
948.06
Incest with a child. Whoever does any of the following is guilty of a Class C felony:
948.06(1)
(1) Marries or has sexual intercourse or sexual contact with a child he or she knows is related, either by blood or adoption, and the child is related in a degree of kinship closer than 2nd cousin; or
948.06(2)
(2) Is a person responsible for the child's welfare and:
948.06(2)(a)
(a) Has knowledge that another person related to the child by blood or adoption in a degree of kinship closer than 2nd cousin has had or intends to have sexual intercourse or sexual contact with the child;
948.06(2)(b)
(b) Is physically and emotionally capable of taking action that will prevent the intercourse or contact from occurring or being repeated;
948.06(2)(d)
(d) The failure to act exposes the child to an unreasonable risk that intercourse or contact may occur between the child and the other person or facilitates the intercourse or contact that does occur between the child and the other person.
948.07
948.07
Child enticement. Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class D felony:
948.07(1)
(1) Having sexual contact or sexual intercourse with the child in violation of
s. 948.02 or
948.095.
948.07(2)
(2) Causing the child to engage in prostitution.
948.07(3)
(3) Exposing a sex organ to the child or causing the child to expose a sex organ in violation of
s. 948.10.
948.07(4)
(4) Recording the child engaging in sexually explicit conduct.
948.07(5)
(5) Causing bodily or mental harm to the child.
948.07(6)
(6) Giving or selling to the child a controlled substance or controlled substance analog in violation of
ch. 961.
948.07 Annotation
The penalty scheme of sub. (3) is not unconstitutionally irrational. That the statute, unlike sub. (1), did not distinguish between victims 16 years old or older and other children victims is a matter for the legislature. State v. Hanson,
182 Wis. 2d 481,
513 N.W.2d 700 (Ct. App. 1994).
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
One alternate mode of commission of the crime under this section 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.
948.07 Annotation
Acts alleged in furtherance of the criminal objective, such as attempts to have a child get into a vehicle or go into a hotel room or a secluded place are not required to prove attempted child enticement. Going to meet the child at a planned time and place is a sufficient, unequivocal act in furtherance of the criminal objective when earlier conversations provide reasonable inferences of that criminal objective. State v. Grimm, 2002 WI App 242,
258 Wis. 2d 166,
653 N.W.2d 284,
01-0138.
948.07 Annotation
While an attempt cannot lie to an offense that does not carry the element of specific intent and the statutory definition of sexual intercourse does not formally include an intent element, the act of sexual intercourse is necessarily an intentional act. As such, the crime of attempted sexual assault of a child by means of sexual intercourse is a crime. State v. Brienzo, 2003 WI App 203,
267 Wis. 2d 349,
671 N.W.2d 700,
01-1362.
948.07 Annotation
Like the child enticement statute in Robins, the child sexual assault statute regulates conduct, not speech. An attempt to have sexual contact or sexual intercourse with a child initiated or carried out in part by means of language does not make an attempted child sexual assault charge susceptible of 1st amendment scrutiny. State v. Brienzo, 2003 WI App 203,
267 Wis. 2d 349,
671 N.W.2d 700.
948.07 Annotation
This section requires only that the defendant cause the child to go into any vehicle, building, room, or secluded place with the intent to engage in illicit conduct, but not that the child necessarily be first separated from the public. State v. Provo, 2004 WI App 97, ___ Wis. 2d ___,
651 N.W.2d 272,
03-1710.
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.
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;
2003 a. 321.
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.
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:
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.
948.095 Annotation
An "employee" and persons "under contract" are examples of persons included within the group of people that provide services to a school or school board within the definition of school staff under sub. (1) (b). These phrases are illustrative, and do not limit the definition of "a person who provides services." State v. Kaster, 2003 WI App 105,
264 Wis. 2d 751, 663 N.W.2d. 390,
02-2352.
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:
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:
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.
