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SENATE SUBSTITUTE AMENDMENT 1,
TO SENATE BILL 314
December 18, 2023 - Offered by Senator James.
SB314-SSA1,1,7 1An Act to amend 20.455 (5) (gj), 48.345 (3) (a) 2., 48.345 (3) (b) 2., 48.685 (1) (c)
22., 48.685 (4m) (b) 2., 48.685 (4m) (b) 2m., 50.065 (1) (e) 2., 51.20 (13) (ct) 2m.,
3103.34 (1) (b) 2., 165.505 (1) (bg) 1., 301.45 (1d) (b), 343.12 (7) (c) 23., 440.312
4(2), 440.982 (2), 786.36 (1m) (c) 24., 938.34 (3) (a) 2., 938.34 (3) (b) 2., 938.34
5(15m) (bm), 939.615 (1) (b) 1., 939.617 (1), 946.82 (4), 971.17 (1m) (b) 2m.,
6973.042 (2) and 973.048 (2m); and to create 948.125 of the statutes; relating
7to:
possession of child pornography and providing a penalty.
Analysis by the Legislative Reference Bureau
Under current law, a person is guilty of the crime of possessing child
pornography if he or she knowingly possesses, or accesses with the intent to view,
film, photographic negatives, photographs, motion pictures, videotapes, or other
recordings of a child engaged in actual or simulated sexually explicit conduct. To be
convicted the person has to know or reasonably should know that the depicted child
is under the age of 18. Possession of child pornography is a Class D felony and has
a three-year mandatory minimum period of confinement in prison if the person is
at least 18 and at least 48 months older than the child who is depicted. If the person

is under 18, the crime is a Class I felony. A person who is convicted of possession of
child pornography is subject to other consequences stemming from the conviction
including the requirement to register as a sex offender and to pay a pornography
surcharge of $500 per image.
Under this bill, a person is guilty of the crime of possessing virtual child
pornography if he or she knowingly receives, distributes, produces, or possesses, or
accesses with the intent to view, obscene photographs, film, motion pictures, or
digital or computer-generated images or pictures that contain a visual
representation that appears to depict an actual child engaged in sexually explicit
conduct although the representation may or may not depict an actual child. Material
is “obscene” if 1) the average person, applying contemporary community standards,
would find that it appeals to the prurient interest if taken as a whole; 2) it describes
or shows sexually explicit conduct in a patently offensive way under contemporary
community standards; and 3) it lacks serious literary, artistic, political, educational,
or scientific value, if taken as a whole. The crime created under this bill is a Class
D felony and carries a three-year mandatory minimum period of confinement in
prison if the person is at least 18. If the person is under 18, the crime is a Class I
felony. The other consequences stemming from a conviction for child pornography
apply to the crime created in the bill, including the requirement to register as a sex
offender and to pay the pornography surcharge of $500 per image.
Because this bill creates a new crime or revises a penalty for an existing crime,
the Joint Review Committee on Criminal Penalties may be requested to prepare a
report.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB314-SSA1,1 1Section 1. 20.455 (5) (gj) of the statutes is amended to read:
SB314-SSA1,2,52 20.455 (5) (gj) General operations; child pornography surcharge. All moneys
3received from any child pornography surcharge imposed under s. 973.042 for
4investigating offenses under s. 948.05 or, 948.12, or 948.125 and for making grants
5under s. 165.93 (2) (a).
SB314-SSA1,2 6Section 2. 48.345 (3) (a) 2. of the statutes is amended to read:
SB314-SSA1,3,27 48.345 (3) (a) 2. The home of a relative other than the parent of a child if the
8judge finds that the relative has been convicted of, has pleaded no contest to, or has
9had a charge dismissed or amended as a result of a plea agreement for a crime under
10s. 948.02 (1) or (2), 948.025, 948.03 (2) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051,

1948.055, 948.06, 948.07, 948.08, 948.081, 948.085, 948.11 (2) (a) or (am), 948.12,
2948.125, 948.13, 948.21, 948.215, 948.30, or 948.53, or a similar law of another state.
SB314-SSA1,3 3Section 3. 48.345 (3) (b) 2. of the statutes is amended to read:
SB314-SSA1,3,94 48.345 (3) (b) 2. The home of a person who is not required to be licensed if the
5judge finds that the person has been convicted of, has pleaded no contest to, or has
6had a charge dismissed or amended as a result of a plea agreement for a crime under
7s. 948.02 (1) or (2), 948.025, 948.03 (2) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051,
8948.055, 948.06, 948.07, 948.08, 948.081, 948.085, 948.11 (2) (a) or (am), 948.12,
9948.125, 948.13, 948.21, 948.215, 948.30, or 948.53, or a similar law of another state.
SB314-SSA1,4 10Section 4. 48.685 (1) (c) 2. of the statutes is amended to read:
SB314-SSA1,3,1511 48.685 (1) (c) 2. A violation of s. 940.01, 940.02, 940.03, 940.05, 940.12, 940.19
12(2), (4), (5), or (6), 940.198 (2), 940.22 (2) or (3), 940.225 (1), (2), or (3), 940.285 (2),
13940.29, 940.295, 942.09 (2), 948.02 (1) or (2), 948.025, 948.03 (2) or (5) (a) 1., 2., 3.,
14or 4., 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.081, 948.085, 948.11 (2)
15(a) or (am), 948.12, 948.125, 948.13, 948.21, 948.215, 948.30, or 948.53.
SB314-SSA1,5 16Section 5. 48.685 (4m) (b) 2. of the statutes is amended to read:
SB314-SSA1,3,2117 48.685 (4m) (b) 2. That the person was charged for a violation of s. 948.02 (1)
18or (2), 948.025, 948.03 (2) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.055, 948.06,
19948.07, 948.08, 948.081, 948.085, 948.11 (2) (a) or (am), 948.12, 948.125, 948.13,
20948.21, 948.215, 948.30, or 948.53, or a similar law of another state, and the charge
21was dismissed or amended as part of a plea agreement.
SB314-SSA1,6 22Section 6. 48.685 (4m) (b) 2m. of the statutes is amended to read:
SB314-SSA1,4,223 48.685 (4m) (b) 2m. That the person has pleaded no contest to a violation of s.
24948.02 (1) or (2), 948.025, 948.03 (2) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051, 948.055,

1948.06, 948.07, 948.08, 948.081, 948.085, 948.11 (2) (a) or (am), 948.12,
948.125,
2948.13, 948.21, 948.215, 948.30, or 948.53, or a similar law of another state.
SB314-SSA1,7 3Section 7. 50.065 (1) (e) 2. of the statutes is amended to read:
SB314-SSA1,4,114 50.065 (1) (e) 2. For the purposes of an entity that serves persons under the age
5of 18, “serious crime" includes a violation of s. 948.02 (2), 948.03 (2) (b) or (c) or (5)
6(a) 4., 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.085, 948.11 (2) (a) or
7(am), 948.12, 948.125, 948.13, 948.21 (2), 948.215, 948.30, or 948.53 or a violation of
8the law of any other state or United States jurisdiction that would be a violation of
9s. 948.02 (2), 948.03 (2) (b) or (c) or (5) (a) 4., 948.05, 948.051, 948.055, 948.06, 948.07,
10948.08, 948.085, 948.11 (2) (a) or (am), 948.12, 948.13, 948.21 (2), 948.30, or 948.53
11if committed in this state.
SB314-SSA1,8 12Section 8. 51.20 (13) (ct) 2m. of the statutes is amended to read:
SB314-SSA1,4,2313 51.20 (13) (ct) 2m. If the subject individual is before the court on a petition filed
14under a court order under s. 938.30 (5) (c) 1. and is found to have committed a
15violation, or to have solicited, conspired, or attempted to commit a violation, of s.
16940.22 (2), 940.225 (1), (2), or (3), 944.06, 948.02 (1) or (2), 948.025, 948.05, 948.051,
17948.055, 948.06, 948.07, 948.075, 948.08, 948.085, 948.095, 948.11 (2) (a) or (am),
18948.12, 948.125, 948.13, or 948.30, of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies,
19or of s. 940.30 or 940.31 if the victim was a minor and the subject individual was not
20the victim's parent, the court shall require the individual to comply with the
21reporting requirements under s. 301.45 unless the court determines, after a hearing
22on a motion made by the individual, that the individual is not required to comply
23under s. 301.45 (1m).
SB314-SSA1,9 24Section 9. 103.34 (1) (b) 2. of the statutes is amended to read:
SB314-SSA1,5,8
1103.34 (1) (b) 2. A violation of s. 940.01, 940.02, 940.03, 940.05, 940.06, 940.07,
2940.08, 940.09, 940.10, 940.19 (2), (4), (5), or (6), 940.198 (2), 940.21, 940.225 (1), (2),
3or (3), 940.23, 940.235, 940.24, 940.25, 940.30, 940.302, 940.305, 940.31, 943.02,
4943.03, 943.04, 943.10, 943.30, 943.31, 943.32, 944.32, 944.34, 946.10, 948.02 (1) or
5(2), 948.025, 948.03 (2), (3), or (5) (a) 1., 2., 3., or 4., 948.04, 948.05, 948.051, 948.055,
6948.06, 948.07, 948.075, 948.08, 948.085, 948.11 (2) (a) or (am), 948.12, 948.125,
7948.13, 948.21 (2), 948.215, or 948.30 or of a substantially similar federal law or law
8of another state.
SB314-SSA1,10 9Section 10. 165.505 (1) (bg) 1. of the statutes is amended to read:
SB314-SSA1,5,1110 165.505 (1) (bg) 1. A violation of s. 948.05, 948.075, 948.11, or 948.12, or
11948.125
.
SB314-SSA1,11 12Section 11. 301.45 (1d) (b) of the statutes is amended to read:
SB314-SSA1,5,1813 301.45 (1d) (b) “Sex offense" means a violation, or the solicitation, conspiracy,
14or attempt to commit a violation, of s. 940.22 (2), 940.225 (1), (2) or (3), 944.06, 944.18,
15948.02 (1) or (2), 948.025, 948.05, 948.051, 948.055, 948.06, 948.07 (1) to (4), 948.075,
16948.08, 948.085, 948.095, 948.11 (2) (a) or (am), 948.12, 948.125, 948.13, or 948.30,
17of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies, or of s. 940.30 or 940.31 if the victim
18was a minor and the person who committed the violation was not the victim's parent.
SB314-SSA1,12 19Section 12. 343.12 (7) (c) 23. of the statutes is amended to read:
SB314-SSA1,5,2020 343.12 (7) (c) 23. Possession of child pornography under s. 948.12 or 948.125.
SB314-SSA1,13 21Section 13. 440.312 (2) of the statutes is amended to read:
SB314-SSA1,6,222 440.312 (2) The department may not grant a license under this subchapter to
23any person who has been convicted of an offense under s. 940.22, 940.225, 940.302
24(2) (a) 1. b., 944.06, 944.15, 944.17, 944.30 (1m), 944.31, 944.32, 944.33, 944.34,

1948.02, 948.025, 948.051, 948.06, 948.07, 948.075, 948.08, 948.081, 948.09, 948.095,
2948.10, 948.11, or 948.12, or 948.125.
SB314-SSA1,14 3Section 14. 440.982 (2) of the statutes is amended to read:
SB314-SSA1,6,84 440.982 (2) The department may not grant a license under this subchapter to
5any person who has been convicted of an offense under s. 940.22, 940.225, 944.06,
6944.15, 944.17, 944.30 (1m), 944.31, 944.32, 944.33, 944.34, 948.02, 948.025,
7948.051, 948.06, 948.07, 948.075, 948.08, 948.081, 948.09, 948.095, 948.10, 948.11,
8or 948.12, or 948.125 or under s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies.
SB314-SSA1,15 9Section 15. 786.36 (1m) (c) 24. of the statutes is amended to read:
SB314-SSA1,6,1010 786.36 (1m) (c) 24. Possession of child pornography under s. 948.12 or 948.125.
SB314-SSA1,16 11Section 16. 938.34 (3) (a) 2. of the statutes is amended to read:
SB314-SSA1,6,1712 938.34 (3) (a) 2. The home of a relative other than the parent of the juvenile
13if the court finds that the relative has been convicted of, has pleaded no contest to,
14or has had a charge dismissed or amended as a result of a plea agreement for a crime
15under s. 948.02 (1) or (2), 948.025, 948.03 (2) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051,
16948.055, 948.06, 948.07, 948.08, 948.081, 948.085, 948.11 (2) (a) or (am), 948.12,
17948.125, 948.13, 948.21, 948.215, 948.30, or 948.53, or a similar law of another state.
SB314-SSA1,17 18Section 17. 938.34 (3) (b) 2. of the statutes is amended to read:
SB314-SSA1,6,2419 938.34 (3) (b) 2. The home of a person who is not required to be licensed if the
20court finds that the person has been convicted of, has pleaded no contest to, or has
21had a charge dismissed or amended as a result of a plea agreement for a crime under
22s. 948.02 (1) or (2), 948.025, 948.03 (2) or (5) (a) 1., 2., 3., or 4., 948.05, 948.051,
23948.055, 948.06, 948.07, 948.08, 948.081, 948.085, 948.11 (2) (a) or (am), 948.12,
24948.125, 948.13, 948.21, 948.215, 948.30, or 948.53, or a similar law of another state.
SB314-SSA1,18 25Section 18. 938.34 (15m) (bm) of the statutes is amended to read:
SB314-SSA1,7,10
1938.34 (15m) (bm) If the juvenile is adjudicated delinquent on the basis of a
2violation, or the solicitation, conspiracy, or attempt to commit a violation, of s. 940.22
3(2), 940.225 (1), (2), or (3), 944.06, 948.02 (1) or (2), 948.025, 948.05, 948.051, 948.055,
4948.06, 948.07, 948.075, 948.08, or 948.085 (2), 948.095, 948.11 (2) (a) or (am),
5948.12, 948.125, 948.13, or 948.30, of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies,
6or of s. 940.30 or 940.31 if the victim was a minor and the juvenile was not the victim's
7parent, the court shall require the juvenile to comply with the reporting
8requirements under s. 301.45 unless the court determines, after a hearing on a
9motion made by the juvenile, that the juvenile is not required to comply under s.
10301.45 (1m).
SB314-SSA1,19 11Section 19. 939.615 (1) (b) 1. of the statutes is amended to read:
SB314-SSA1,7,1612 939.615 (1) (b) 1. A violation, or the solicitation, conspiracy, or attempt to
13commit a violation, of s. 940.22 (2), 940.225 (1), (2), or (3), 948.02 (1) or (2), 948.025
14(1), 948.05 (1) or (1m), 948.051, 948.055 (1), 948.06, 948.07, 948.075, 948.08, 948.085,
15948.11 (2) (a), 948.12, 948.125, or 948.13 or of s. 940.302 (2) if s. 940.302 (2) (a) 1. b.
16applies.
SB314-SSA1,20 17Section 20 . 939.617 (1) of the statutes is amended to read:
SB314-SSA1,7,2318 939.617 (1) Except as provided in subs. (2) and (3), if a person is convicted of
19a violation of s. 948.05, 948.075, or 948.12, or 948.125, the court shall impose a
20bifurcated sentence under s. 973.01. The term of confinement in prison portion of the
21bifurcated sentence shall be at least 5 years for violations of s. 948.05 or 948.075 and
223 years for violations of s. 948.12 or 948.125. Otherwise the penalties for the crime
23apply, subject to any applicable penalty enhancement.
SB314-SSA1,21 24Section 21. 946.82 (4) of the statutes, as affected by 2023 Wisconsin Act 10,
25is amended to read:
SB314-SSA1,8,15
1946.82 (4) “Racketeering activity" means any activity specified in 18 USC 1961
2(1) in effect as of April 27, 1982, or the attempt, conspiracy to commit, or commission
3of any of the felonies specified in: chs. 945 and 961, subch. V of ch. 551, and ss. 49.49,
4134.05, 139.44 (1), 180.0129, 181.0129, 185.825, 201.09 (2), 215.12, 221.0625,
5221.0636, 221.0637, 221.1004, 553.41 (3) and (4), 553.52 (2), 940.01, 940.19 (4) to (6),
6940.20, 940.201, 940.203, 940.21, 940.30, 940.302 (2), 940.305, 940.31, 941.20 (2) and
7(3), 941.26, 941.28, 941.298, 941.31, 941.32, 942.09, 943.01 (2), (2d), or (2g), 943.011,
8943.012, 943.013, 943.02, 943.03, 943.04, 943.05, 943.06, 943.10, 943.20 (3) (bf) to (e),
9943.201, 943.203, 943.23 (2) and (3), 943.231 (1), 943.24 (2), 943.27, 943.28, 943.30,
10943.32, 943.34 (1) (bf), (bm), and (c), 943.38, 943.39, 943.40, 943.41 (8) (b) and (c),
11943.50 (4) (bf), (bm), and (c) and (4m), 943.60, 943.70, 943.76, 943.81, 943.82, 943.83,
12943.84, 943.85, 943.86, 943.87, 943.88, 943.89, 943.90, 944.21 (5) (c) and (e), 944.32,
13944.34, 945.03 (1m), 945.04 (1m), 945.05 (1), 945.08, 946.10, 946.11, 946.12, 946.13,
14946.31, 946.32 (1), 946.48, 946.49, 946.61, 946.64, 946.65, 946.72, 946.76, 946.79,
15947.015, 948.05, 948.051, 948.08, 948.12, 948.125, and 948.30.
SB314-SSA1,22 16Section 22 . 948.125 of the statutes is created to read:
SB314-SSA1,8,18 17948.125 Possession of virtual child pornography. (1) Definitions. In this
18section:
SB314-SSA1,8,2019 (a) “Depiction of a purported child” means a visual representation that appears
20to depict an actual child but may or may not depict an actual child.
SB314-SSA1,8,2321 (b) “Obscene material” means a photograph, film, motion picture, or digital or
22computer-generated image or picture, whether made or produced by electronic,
23mechanical, or other means, that satisfies all of the following:
SB314-SSA1,8,2524 1. The average person, applying contemporary community standards, would
25find appeals to the prurient interest if taken as a whole.
SB314-SSA1,9,2
12. Under contemporary community standards, describes or shows sexually
2explicit conduct in a patently offensive way.
SB314-SSA1,9,43 3. Lacks serious literary, artistic, political, educational, or scientific value, if
4taken as a whole.
SB314-SSA1,9,11 5(2) Possession and penalty. Whoever receives, distributes, produces, or
6possesses, or accesses in any way with the intent to view, obscene material that
7contains a depiction of a purported child engaging in sexually explicit conduct is
8guilty of the following if the person knows that he or she received, distributed,
9produced, possessed, or accessed the material or if the person knows, or reasonably
10should know, that the material contains a depiction of a purported child engaging in
11sexually explicit conduct:
SB314-SSA1,9,1212 (a) Except as provided in par. (b), a Class D felony.
SB314-SSA1,9,1313 (b) If the actor is under 18 years of age when the offense occurs, a Class I felony.
SB314-SSA1,23 14Section 23. 971.17 (1m) (b) 2m. of the statutes is amended to read:
SB314-SSA1,9,2415 971.17 (1m) (b) 2m. If the defendant under sub. (1) is found not guilty by reason
16of mental disease or defect for a violation, or for the solicitation, conspiracy, or
17attempt to commit a violation, of s. 940.22 (2), 940.225 (1), (2), or (3), 944.06, 948.02
18(1) or (2), 948.025, 948.05, 948.051, 948.055, 948.06, 948.07, 948.075, 948.08,
19948.085, 948.095, 948.11 (2) (a) or (am), 948.12, 948.125, 948.13, or 948.30, of s.
20940.302 (2) if s. 940.302 (2) (a) 1. b. applies, or of s. 940.30 or 940.31 if the victim was
21a minor and the defendant was not the victim's parent, the court shall require the
22defendant to comply with the reporting requirements under s. 301.45 unless the
23court determines, after a hearing on a motion made by the defendant, that the
24defendant is not required to comply under s. 301.45 (1m).
SB314-SSA1,24 25Section 24. 973.042 (2) of the statutes is amended to read:
SB314-SSA1,10,6
1973.042 (2) If a court imposes a sentence or places a person on probation for
2a crime under s. 948.05 or, 948.12 , or 948.125 and the person was at least 18 years
3of age when the crime was committed, the court shall impose a child pornography
4surcharge of $500 for each image or each copy of an image associated with the crime.
5The court shall determine the number of images or copies of images associated with
6the crime by a preponderance of the evidence and without a jury.
SB314-SSA1,25 7Section 25. 973.048 (2m) of the statutes is amended to read:
SB314-SSA1,10,168 973.048 (2m) If a court imposes a sentence or places a person on probation for
9a violation, or for the solicitation, conspiracy or attempt to commit a violation, of s.
10940.22 (2), 940.225 (1), (2), or (3), 944.06, 948.02 (1) or (2), 948.025, 948.05, 948.051,
11948.055, 948.06, 948.07, 948.075, 948.08, 948.085, 948.095, 948.11 (2) (a) or (am),
12948.12, 948.125, 948.13, or 948.30, of s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies,
13or of s. 940.30 or 940.31 if the victim was a minor and the person was not the victim's
14parent, the court shall require the person to comply with the reporting requirements
15under s. 301.45 unless the court determines, after a hearing on a motion made by the
16person, that the person is not required to comply under s. 301.45 (1m).
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