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,
272 Wis. 2d 837,
681 N.W.2d 272,
03-1710.
948.075
948.075
Use of a computer to facilitate a child sex crime. 948.075(1r)(1r) 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 C 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) [
sub. (1r)] shall be necessary to prove that intent.
948.075 Note
NOTE: The bracketed language indicates the correct cross-reference. Corrective legislation is pending.
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.
948.085
948.085
Sexual assault of a child placed in substitute care. Whoever does any of the following is guilty of a Class C felony:
948.085(1)
(1) Has sexual contact or sexual intercourse with a child for whom the actor is a foster parent or treatment foster parent.
948.085(2)
(2) Has sexual contact or sexual intercourse with a child who is placed in any of the following facilities if the actor works or volunteers at the facility or is directly or indirectly responsible for managing it:
948.085 Note
NOTE: Pars. (a) to (c) were created as subds. 1. to 3. by
2005 Wis. Act 277 and renumbered by the revisor under s. 13.93 (1) (b).
948.085 History
History: 2005 a. 277; s. 13.93 (1) (b).
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 child by a school staff person or a person who works or volunteers with children. 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(3)(a)(a) A person who has attained the age of 21 years and who engages in an occupation or participates in a volunteer position that requires him or her to work or interact directly with children may not have sexual contact or sexual intercourse with a child who has attained the age of 16 years, who is not the person's spouse, and with whom the person works or interacts through that occupation or volunteer position.
948.095(3)(d)
(d) 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 directly with children: teaching children, child care, youth counseling, youth organization, coaching children, parks or playground recreation, or school bus driving.
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 and 2006 WI App 72, ___ Wis. 2d ___,
714 N.W.2d 238,
05-1285.
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.
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),
97-1087.
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,
00-2545.
948.11 Annotation
Evidence was not insufficient to sustain the jury's verdict solely because the jury did not view the video alleged to be "harmful material," but instead heard only the children victim's and a detective's descriptions of what they saw. State v. Booker, 2006 WI 79, ___ Wis. 2d ___,
717 N.W.2d 676,
04-1435.
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 may be penalized under
sub. (3):
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, may be penalized under
sub. (3):
948.12(2m)(a)
(a) The person knows that he or she has exhibited or played the recording.
