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942.08 942.08 Invasion of privacy.
942.08(1)(1) In this section:
942.08(1)(a) (a) "Nude or partially nude person" means any human being who has less than fully and opaquely covered genitals, pubic area or buttocks, any female human being who has less than a fully opaque covering over any portion of a breast below the top of the nipple, or any male human being with covered genitals in a discernibly turgid state.
942.08(1)(b) (b) "Private place" means a place where a person may reasonably expect to be safe from being observed without his or her knowledge and consent.
942.08(1)(c) (c) "Surveillance device" means any device, instrument, apparatus, implement, mechanism or contrivance used, designed to be used or primarily intended to be used to observe the activities of a person. "Surveillance device" includes a peephole.
942.08(2) (2) Whoever does any of the following is guilty of a Class A misdemeanor:
942.08(2)(a) (a) Knowingly installs a surveillance device in any private place, or uses a surveillance device that has been installed in a private place, with the intent to observe any nude or partially nude person without the consent of the person observed.
942.08(2)(b) (b) For the purpose of sexual arousal or gratification and without the consent of each person who is present in the private place, looks into a private place that is, or is part of, a public accommodation, as defined in s. 134.48 (1) (b), and in which a person may reasonably be expected to be nude or partially nude.
942.08(2)(c) (c) For the purpose of sexual arousal or gratification, looks into a private place that is, or is part of, a public accommodation, as defined in s. 134.48 (1) (b), and in which a person may reasonably be expected to be nude or partially nude but in which no person is present.
942.08(2)(d) (d) Enters another person's private property without that person's consent or enters an enclosed or unenclosed common area of a multiunit dwelling or condominium and looks into any individual's dwelling unit if all of the following apply:
942.08(2)(d)1. 1. The actor looks into the dwelling unit for the purpose of sexual arousal or gratification and with the intent to intrude upon or interfere with an individual's privacy.
942.08(2)(d)2. 2. The actor looks into a part of the dwelling unit in which an individual is present.
942.08(2)(d)3. 3. The individual has a reasonable expectation of privacy in that part of the dwelling unit.
942.08(2)(d)4. 4. The individual does not consent to the actor looking into that part of the dwelling.
942.08 History History: 1997 a. 271; 2003 a. 50; 2007 a. 198.
942.09 942.09 Representations depicting nudity.
942.09(1) (1) In this section:
942.09(1)(a) (a) "Captures a representation" means takes a photograph, makes a motion picture, videotape, or other visual representation, or records or stores in any medium data that represents a visual image.
942.09(1)(am) (am) "Nude or partially nude person" has the meaning given in s. 942.08 (1) (a).
942.09(1)(b) (b) "Nudity" has the meaning given in s. 948.11 (1) (d).
942.09(1)(bg) (bg) "Post or publish" includes posting or publishing on a Web site on the Internet, if the Web site may be viewed by the general public.
942.09(1)(bn) (bn) "Private representation" means a representation depicting a nude or partially nude person or depicting a person engaging in sexually explicit conduct that is intended by the person depicted in the representation to be captured, viewed, or possessed only by the person who, with the consent of the person depicted, captured the representation or to whom the person depicted directly and intentionally gave possession of the representation.
942.09(1)(c) (c) "Representation" means a photograph, exposed film, motion picture, videotape, other visual representation, or data that represents a visual image.
942.09(1)(d) (d) "Sexually explicit conduct" has the meaning given in s. 948.01 (7).
942.09(2) (2)
942.09(2)(am)(am) Whoever does any of the following is guilty of a Class I felony:
942.09(2)(am)1. 1. Captures a representation that depicts nudity without the knowledge and consent of the person who is depicted nude while that person is nude in a circumstance in which he or she has a reasonable expectation of privacy, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the capture of the representation.
942.09(2)(am)2. 2. Makes a reproduction of a representation that the person knows or has reason to know was captured in violation of subd. 1. and that depicts the nudity depicted in the representation captured in violation of subd. 1., if the person depicted nude in the reproduction did not consent to the making of the reproduction.
942.09(2)(am)3. 3. Possesses, distributes, or exhibits a representation that was captured in violation of subd. 1. or a reproduction made in violation of subd. 2., if the person knows or has reason to know that the representation was captured in violation of subd. 1. or the reproduction was made in violation of subd. 2., and if the person who is depicted nude in the representation or reproduction did not consent to the possession, distribution, or exhibition.
942.09(2)(bm) (bm) Notwithstanding par. (am), if the person depicted nude in a representation or reproduction is a child and the capture, possession, exhibition, or distribution of the representation, or making, possession, exhibition, or distribution of the reproduction, does not violate s. 948.05 or 948.12, a parent, guardian, or legal custodian of the child may do any of the following:
942.09(2)(bm)1. 1. Capture and possess the representation or make and possess the reproduction depicting the child.
942.09(2)(bm)2. 2. Distribute or exhibit a representation captured or possessed under subd. 1., or distribute or exhibit a reproduction made or possessed under subd. 1., if the distribution or exhibition is not for commercial purposes.
942.09(2)(cm) (cm) This subsection does not apply to a person who receives a representation or reproduction depicting a child from a parent, guardian, or legal custodian of the child under par. (bm) 2., if the possession, exhibition, or distribution is not for commercial purposes.
942.09(3m) (3m)
942.09(3m)(a)(a) Whoever does any of the following is guilty of a Class A misdemeanor:
942.09(3m)(a)1. 1. Posts, publishes, or causes to be posted or published, a private representation if the actor knows that the person depicted does not consent to the posting or publication of the private representation.
942.09(3m)(a)2. 2. Posts, publishes, or causes to be posted or published, a depiction of a person that he or she knows is a private representation, without the consent of the person depicted.
942.09(3m)(b) (b) This subsection does not apply to any of the following:
942.09(3m)(b)1. 1. The parent, guardian, or legal custodian of the person depicted if the private representation does not violate s. 948.05 or 948.12 and the posting or publication is not for commercial purposes.
942.09(3m)(b)2. 2. A law enforcement officer or agent acting in his or her official capacity in connection with the investigation or prosecution of a crime.
942.09(3m)(b)3. 3. A person who posts or publishes a private representation that is newsworthy or of public importance.
942.09(3m)(b)4. 4. A provider of electronic communication services that provides Internet access service to customers.
942.09(5) (5)
942.09(5)(a)(a) Whoever, while present in a locker room, intentionally captures a representation of a nude or partially nude person while the person is nude or partially nude in the locker room is guilty of a Class B misdemeanor. This paragraph does not apply if the person consents to the capture of the representation and one of the following applies:
942.09(5)(a)1. 1. The person is, or the actor reasonably believes that the person is, 18 years of age or over when the person gives his or her consent.
942.09(5)(a)2. 2. The person's parent, guardian, or legal custodian consents to the capture of the representation.
942.09(5)(b)1.1. Whoever intentionally does any of the following is guilty of a Class A misdemeanor:
942.09(5)(b)1.a. a. Captures a representation of a nude or partially nude person while the actor is present in, and the person is nude or partially nude in, the locker room and exhibits or distributes the representation to another.
942.09(5)(b)1.b. b. Transmits or broadcasts an image of a nude or partially nude person from a locker room while the person is nude or partially nude in the locker room.
942.09(5)(b)2. 2. This paragraph does not apply if the person consents to the exhibition or distribution of the representation or the transmission or broadcast of the image and one of the following applies:
942.09(5)(b)2.a. a. The person is, or the actor reasonably believes that the person is, 18 years of age or over when the person gives his or her consent.
942.09(5)(b)2.b. b. The person's parent, guardian, or legal custodian consents to the exhibition, distribution, transmission, or broadcast.
942.09 History History: 1995 a. 249; 2001 a. 16; 2001 a. 33 ss. 2 to 13; Stats. 2001 s. 942.09; 2001 a. 109; 2007 a. 118; 2013 a. 243.
942.09 Annotation Sub. (2) (a) requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others, and that assumption is a reasonable one under all the circumstances, according to an objective standard. State v. Nelson, 2006 WI App 124, 294 Wis. 2d 578, 718 N.W.2d 168, 05-2300.
942.09 Annotation A "legitimate expectation of privacy" for purposes of a search or seizure under the 4th amendment is not consistent with the context and purpose of this section. The 4th amendment embodies a balance between society's interest in law enforcement and the privacy interest asserted by the individual that is not relevant to this section. Construing "reasonable expectation of privacy" according to its common meaning does not render the statute unconstitutionally vague and provides sufficient notice of the conduct prohibited under sub. (2) (a). State v. Nelson, 2006 WI App 124, 294 Wis. 2d 578, 718 N.W.2d 168, 05-2300.
942.09 Annotation Nelson did not purport to provide a definition of reasonable expectation of privacy covering all circumstances. The question for purposes of the privacy element is not whether the nude person had a reasonable expectation that the defendant would view him or her nude at the time of the recording, but whether the nude person had a reasonable expectation, under the circumstances, that he or she would not be recorded in the nude. State v. Jahnke, 2009 WI App 4, 316 Wis. 2d 324, 762 N.W.2d 696, 07-2130.
942.10 942.10 Use of a drone. Whoever uses a drone, as defined in s. 175.55 (1) (a), with the intent to photograph, record, or otherwise observe another individual in a place or location where the individual has a reasonable expectation of privacy is guilty of Class A misdemeanor. This section does not apply to a law enforcement officer authorized to use a drone pursuant to s. 175.55 (2).
942.10 History History: 2013 a. 213.
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2011-12 Wisconsin Statutes updated though 2013 Wis. Act 200 and all Supreme Court Orders entered before April 18, 2014. Published and certified under s. 35.18. Changes effective after April 18, 2014 are designated by NOTES. (Published 4-18-14)