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).
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), 98-0642
The purposes of s. 948.05, child exploitation, and this section, 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
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
One alternate mode of commission of the crime under this section is attempt to cause a child 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
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
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
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
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
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
“Secluded" in this section is not a technical term. In the context of child enticement, a secluded place would include any place that provides the enticer an opportunity to remove the child from within the general public's view to a location where any intended sexual conduct is less likely to be detected by the public. A place need not even be screened or hidden or remote if some other aspect of the place lowers the likelihood of detection. All the statute requires is that the place provides a means by which to exclude the child and reduce the risk of detection. State v. Pask, 2010 WI App 53
, 324 Wis. 2d 555
, 781 N.W.2d 751
Sexual contact is not an element of the crime of child enticement under this section. Rather, the six enumerated prohibited intents are modes of commission. At least one mode of commission must be referenced during a plea colloquy, but the terms comprising each mode need not be specifically defined. The crime of child enticement does not require proof of the actual, physical action contemplated by the mode of commission, only that the defendant acted to entice a child while intending to do one of the prohibited acts. The act of enticement is the crime, not the underlying intended sexual or other misconduct. State v. Hendricks, 2018 WI 15
, 379 Wis. 2d 549
, 906 N.W.2d 666
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)
is guilty of a Class C felony.
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.
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. (1r)
shall be necessary to prove that intent.
Defendant's admission to driving to the alleged victim's neighborhood for an innocent purpose combined with computer communications, in which the defendant told the alleged victim that he drove through her neighborhood for the specific purpose of meeting her, and his confession to the police that he went to the area so he could “get her interested in chatting with him again," showed that the non-computer-assisted act of driving through the area was to effect his intent to have sex with the alleged victim and satisfied the requirement in sub. (3). State v. Schulpius, 2006 WI App 263
, 298 Wis. 2d 155
, 726 N.W.2d 706
Defendant's use of a webcam to transmit video of himself was, under the circumstances of this case, nothing more than the use of his computer to communicate and thus not an act “other than us[ing] a computerized communication system to communicate" as required under sub. (3). State v. Olson, 2008 WI App 171
, 314 Wis. 2d 630
, 762 N.W.2d 393
The element use of a “computerized communication system" in sub. (1r) was satisfied when the defendant used his flip-style cellphone to exchange texts with, and receive picture messages from, the 14-year-old victim. There is no doubt that modern cellphones today are in fact computers. The defendant used his cellphone as a computer to send communications to the victim over the computer system used by their cellphones so that he could have sexual contact with her. State v. McKellips, 2016 WI 51
, 369 Wis. 2d 437
, 881 N.W.2d 258
This section is not unconstitutionally vague because a person of ordinary intelligence would understand that using a cellphone to text or picture message with a child to entice sexual encounters violates the statute, and this section is capable of objective enforcement. State v. McKellips, 2016 WI 51
, 369 Wis. 2d 437
, 881 N.W.2d 258
The legislature had reasonable and practical grounds for making a conviction for using a computer to facilitate a child sex crime under sub. (1r) subject to a mandatory minimum sentence. Thus, there was a rational basis for the penalty enhancer in s. 939.617 (1) and s. 939.617 (1) was not unconstitutional as applied to the defendant. State v. Heidke, 2016 WI App 55
, 370 Wis. 2d 771
, 883 N.W.2d 162
Soliciting a child for prostitution.
Whoever intentionally solicits or causes any child to engage in an act of prostitution or establishes any child in a place of prostitution is guilty of a Class D felony.
Although colloquially referred to as prohibiting solicitation, this section also specifically, and alternatively, prohibits causing a child to practice prostitution. Cause is a substantial factor that need not be the first or sole cause of a child practicing prostitution. The habitual nature of the defendant's trading cocaine for sex with the child victim satisfied the requisite that the victim did “practice prostitution" with the defendant. State v. Payette, 2008 WI App 106
, 313 Wis. 2d 39
, 756 N.W.2d 423
Patronizing a child.
An actor who enters or remains in any place of prostitution with intent to have nonmarital sexual intercourse or to commit an act of sexual gratification, in public or in private, involving the sex organ of one person and the mouth or anus of another, masturbation, or sexual contact with a person is guilty of a Class G felony if the person is a child. In a prosecution under this section, it need not be proven that the actor knew the age of the person and it is not a defense that the actor reasonably believed that the person was not a child.
History: 2017 a. 128
Sexual assault of a child placed in substitute care.
Whoever does any of the following is guilty of a Class C felony:
Has sexual contact or sexual intercourse with a child for whom the actor is a foster parent.
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:
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 if the defendant has attained the age of 19 years when the violation occurs.
History: 1987 a. 332
; 2017 a. 174
Underage sexual activity.
Whoever has sexual contact with a child who has attained the age of 15 years but has not attained the age of 16 years, or whoever has sexual intercourse with a child who has attained the age of 15 years, is guilty of a Class A misdemeanor if the actor has not attained the age of 19 years when the violation occurs. This section does not apply if the actor is the child's spouse.
History: 2017 a. 174
Sexual assault of a child by a school staff person or a person who works or volunteers with children. 948.095(1)(a)
“School" means a public or private elementary or secondary school, or a tribal school, as defined in s. 115.001 (15m)
“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.
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:
The child is enrolled as a student in a school or a school district.
The defendant is a member of the school staff of the school or school district in which the child is enrolled as a student.
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.
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:
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
, 292 Wis. 2d 252
, 714 N.W.2d 238
Exposing genitals, pubic area, or intimate parts. 948.10(1)(1)
Whoever, for purposes of sexual arousal or sexual gratification, causes a child to expose genitals, pubic area, or intimate parts or exposes genitals, pubic area, or intimate parts to a child is guilty of the following:
A Class A misdemeanor if any of the following applies:
At the time of the violation, the actor had not attained the age of 19 years and was not more than 4 years older than the child.
does not apply under any of the following circumstances:
Like other statutes in this chapter that create strict liability for crimes against children, this section can only be employed in situations involving face-to-face contact at the time of the crime and not to remote exposures such as over the Internet. This section lacks the scienter element of age of the victim that is necessary in a variable obscenity statute. State v. Stuckey, 2013 WI App 98
, 349 Wis. 2d 654
, 837 N.W.2d 160
Exposing a child to harmful material or harmful descriptions or narrations. 948.11(1)(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.
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
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.
“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:
Predominantly appeals to the prurient, shameful or morbid interest of children;
Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for children; and
Lacks serious literary, artistic, political, scientific or educational value for children, when taken as a whole.
“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.
“Person" means any individual, partnership, firm, association, corporation or other legal entity.
“Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.
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:
The person knows or reasonably should know that the child has not attained the age of 18 years.
The person has face-to-face contact with the child before or during the sale, rental, exhibit, playing, distribution, or loan.
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: