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CHAPTER 944. CRIMES AGAINST SEXUAL MORALITY
(a) Commits an indecent act of sexual gratification with another with knowledge that they are in the presence of others; or
(2) Subsection (1) does not apply to a mother's breast-feeding of her child.
947.01 Disorderly conduct. Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.
History: 1977 c. 173; 1979 c. 131.
948.10 Exposing genitals, pubic area or intimate parts
(a) Except as provided in par. (b), a Class I felony.
(b) A Class A misdemeanor if any of the following applies:
1. The actor is a child when the violation occurs.
2. 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.
(2) Subsection (1) does not apply under any of the following circumstances:
(a) The child is the defendant's spouse.
(b) A mother's breast-feeding of her child.
History: 1987 a. 332; 1989 a. 31; 1995 a. 165; 2009 a. 202; 2013 a. 362.
948.11 Exposing a child to harmful material or harmful descriptions or narrations.
(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.
(ar) "Harmful material" means:
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
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.
(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:
1. Predominantly appeals to the prurient, shameful or morbid interest of children;
2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for children; and
3. Lacks serious literary, artistic, political, scientific or educational value for children, when taken as a whole.
(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.
(e) "Person" means any individual, partnership, firm, association, corporation or other legal entity.
(f) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.
(2) Criminal penalties.
(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:
1. The person knows or reasonably should know that the child has not attained the age of 18 years.
2. The person has face-to-face contact with the child before or during the sale, rental, exhibit, playing, distribution, or loan.
(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:
1. The person knows or reasonably should know that the child has not attained the age of 18 years.
2. The person has face-to-face contact with the child before or during the communication.
(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:
1. The person knows or reasonably should know that the child has not attained the age of 18 years.
2. The person has face-to-face contact with the child.
(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.
(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.
(4) Libraries and educational institutions.
(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.
(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:
1. A public elementary or secondary school.
2. A private school, as defined in s. 115.001 (3r), or a tribal school, as defined in s. 115.001 (15m).
3. Any school offering vocational, technical or adult education that:
a. Is a technical college, is a school approved by the educational approval board under s. 38.50, or is a school described in s. 38.50 (1) (e) 6., 7. or 8.; and
b. Is exempt from taxation under section 501 (c) (3) of the internal revenue code, as defined in s. 71.01 (6).
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).
5. A library that receives funding from any unit of government.
(5) Severability. The provisions of this section, including the provisions of sub. (4), are severable, as provided in s. 990.001 (11).
History: 1987 a. 332; 1989 a. 31; 1993 a. 220, 399; 1995 a. 27 s. 9154 (1); 1997 a. 27, 82; 1999 a. 9; 2001 a. 16, 104, 109; 2005 a. 22, 25, 254; 2009 a. 302.
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).
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.
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, 292 Wis. 2d 43, 717 N.W.2d 676, 04-1435.
"Verbally" in sub. (2) (am) is most reasonably read as proscribing communication to children of harmful matter in words, whether oral or written, and to distinguish sub. (2) (am) from sub. (2) (a), which primarily proscribes visual representations. State v. Ebersold, 2007 WI App 232, 306 Wis. 2d 371, 742 N.W.2d 876, 06-0833.
When the jury was instructed that the state had to prove only that the defendant exhibited harmful material to the child and the instruction did not include the word "knowing" or "intentional," in light of the instructions in the case and reviewing the proceedings as a whole, there was a reasonable likelihood that the jury was confused and misled about the need for the state to prove an element of the crime. State v. Gonzalez, 2011 WI 63, 335 Wis. 2d 270, 802 N.W.2d 454, 09-1249.
942.09 Representations depicting nudity.
(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.
(am) "Nude or partially nude person" has the meaning given in s. 942.08 (1) (a).
(b) "Nudity" has the meaning given in s. 948.11 (1) (d).
(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.
(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.
(c) "Representation" means a photograph, exposed film, motion picture, videotape, other visual representation, or data that represents a visual image.
(d) "Sexually explicit conduct" has the meaning given in s. 948.01 (7).
(am) Whoever does any of the following is guilty of a Class I felony:
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.
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.
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.
(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:
1. Capture and possess the representation or make and possess the reproduction depicting the child.
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.
(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.
(a) Whoever does any of the following is guilty of a Class A misdemeanor:
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.
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.
(b) This subsection does not apply to any of the following:
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.
2. A law enforcement officer or agent acting in his or her official capacity in connection with the investigation or prosecution of a crime.
3. A person who posts or publishes a private representation that is newsworthy or of public importance.
4. A provider of electronic communication services that provides Internet access service to customers.
(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:
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.
2. The person's parent, guardian, or legal custodian consents to the capture of the representation.
1. Whoever intentionally does any of the following is guilty of a Class A misdemeanor:
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.
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.
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:
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.
b. The person's parent, guardian, or legal custodian consents to the exhibition, distribution, transmission, or broadcast.
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.
Sub. (2) (a) [now sub. (2m) (a) 1.] 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.
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) [now sub. (2m) (a) 1.]. State v. Nelson, 2006 WI App 124, 294 Wis. 2d 578, 718 N.W.2d 168, 05-2300.
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.
Permission to be viewed in the nude does not mean permission to be recorded in the nude, and permission to engage in sexual acts with someone does not mean permission to record that person in the nude. That the defendant and the woman who was recorded were engaged in the crime of prostitution does not mean that the woman relinquished her reasonable expectation of privacy under sub. (2) (am) 1. State v. Adams, 2015 WI App 34, ___ Wis. 2d ___, ___ N.W.2d ___, 14-1158.
Nelson did not add a "legitimate reason" exception to the reasonable expectation of privacy prong of the statute. Recording someone nude in violation of sub. (2) (am) 1. in order to protect against possible adverse scenarios is not a legitimate reason or defense. State v. Adams, 2015 WI App 34, ___ Wis. 2d ___, ___ N.W.2d ___, 14-1158.
Putting existing images into a sexual context is not the same as making the images. The defendant created something new by cutting images of girls out of larger photographs, isolating each cropped image on a page in a notebook, and adding sexual comments. But the defendant did not, under any common definition of the term, "make" new visual representation of the girls under sub. (1) (a). State v. Chagnon, 2015 WI App 66, ___ Wis. 2d ___, ___ N.W.2d ___, 14-2770.
The phrase "stores in any medium data that represents a visual image" in sub. (1) (a) refers to the creation of images by digital
means. The term does not include the mere possession of visual images. State v. Chagnon, 2015 WI App 66, ___ Wis. 2d ___, ___ N.W.2d ___, 14-2770.
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).
History: 2013 a. 213.
DNR TRUST FUNDS AND THEIR MANAGEMENT
(a) Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:
Distribute means to transfer possession of, with or without consideration.
(1) Taken as a whole, the dominate theme of the material or performance appeals to a prurient interest in sex;
Sadomasochistic abuse means:
(1) Flagellation or torture by or upon a person who is nude or clad in undergarments or in a revealing or bizarre costume; or
(b) Unlawful exhibition and distribution. It shall be unlawful for any person to exhibit or distribute, offer to
distribute or have in his possession with the intent to distribute any material portraying sadomasochistic abuse, sexual conduct or nudity which is pornographic.
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