Chapter 942

942.01 Annotation The defense of conditional privilege applies to criminal defamation, but the defense is not absolute and may be forfeited if abused. State v. Gilles, 173 Wis. 2d 101, 496 N.W.2d 133 (Ct. App. 1992).

942.01 Annotation Perjury committed in a judicial proceeding is absolutely privileged under sub. (3). The sanction for perjury is under the perjury statute, s. 946.31, and not under the defamation statute. State v. Cardenas-Hernandez, 219 Wis. 2d 516, 579 N.W.2d 678 (1998), 96-3605.

942.03 942.03 Giving false information for publication. Whoever, with intent that it be published and that it injure any person, and with knowledge that it is false, communicates to a newspaper, magazine, or other publication any false statement concerning any person or any false and unauthorized advertisement is guilty of a Class A misdemeanor.

942.03 History History: 1977 c. 173.

942.05 942.05 Opening letters. Whoever does either of the following is guilty of a Class A misdemeanor:

942.05(1) (1) Knowing that he or she does not have the consent of either the sender or the addressee, intentionally opens any sealed letter or package addressed to another; or

942.05(2) (2) Knowing that a sealed letter or package has been opened without the consent of either the sender or addressee, intentionally publishes any of the contents thereof.

942.05 History History: 1977 c. 173; 1993 a. 486.

942.06 942.06 Use of polygraphs and similar tests.

942.06(1) (1) Except as provided in sub. (2m), no person may require or administer a polygraph, voice stress analysis, psychological stress evaluator or any other similar test purporting to test honesty without the prior written and informed consent of the subject.

942.06(2) (2) Except as provided in sub. (2q), no person may disclose that another person has taken a polygraph, voice stress analysis, psychological stress evaluator or any other similar test purporting to test honesty and no person may disclose the results of such a test to any person except the person tested, without the prior written and informed consent of the subject.

942.06(2m) (2m) Subsection (1) does not apply to any of the following:

942.06(2m)(a) (a) An employee or agent of the department of corrections who conducts a lie detector test of a sex offender under s. 301.132.

942.06(2m)(b) (b) An employee or agent of the department of health services who conducts a lie detector test of a person under s. 51.375.

942.06(2q) (2q) Subsection (2) does not apply to any of the following:

942.06(2q)(a) (a) An employee or agent of the department of corrections who discloses, to any of the following, the fact that a sex offender has had a lie detector test under s. 301.132 or the results of such a lie detector test:

942.06(2q)(a)1. 1. Another employee or agent of the department of corrections.

942.06(2q)(a)2. 2. Another agency or person, if the information disclosed will be used for purposes related to correctional programming or care and treatment.

942.06(2q)(b) (b) An employee or agent of the department of health services who discloses, to any of the following, the fact that a person has had a lie detector test under s. 51.375 or the results of such a lie detector test:

942.06(2q)(b)1. 1. Another employee or agent of the department of health services or another person to whom disclosure is permitted under s. 51.375 (2) (b).

942.06(2q)(b)2. 2. Another agency or person, if the information disclosed will be used for purposes related to programming or care and treatment for the person.

942.06(3) (3) Whoever violates this section is guilty of a Class B misdemeanor.

942.06 History History: 1979 c. 319; 1995 a. 440; 1997 a. 283; 1999 a. 89; 2001 a. 16; 2007 a. 20 s. 9121 (6) (a).

942.07 942.07 Use of genetic tests.

942.07(1) (1) In this section:

942.07(1)(a) (a) “Employer” has the meaning given in s. 111.32 (6).

942.07(1)(b) (b) “Employment agency” has the meaning given in s. 111.32 (7).

942.07(1)(c) (c) “Genetic test” means a test of a person’s genes, gene products or chromosomes for abnormalities or deficiencies, including carrier status, that are linked to physical or mental disorders or impairments, or that indicate a susceptibility to illness, disease, impairment or other disorders, whether physical or mental, or that demonstrate genetic or chromosomal damage due to environmental factors.

942.07(1)(d) (d) “Labor organization” has the meaning given in s. 111.32 (9).

942.07(1)(e) (e) “Licensing agency” has the meaning given in s. 111.32 (11).

942.07(2) (2) No employer, labor organization, employment agency or licensing agency may require or administer a genetic test without the prior written and informed consent of the employee, labor organization member or licensee, or of the prospective employee, labor organization member or licensee, who is the subject of the test.

942.07(3) (3) No person may disclose to an employer, labor organization, employment agency or licensing agency that an employee, labor organization member or licensee, or a prospective employee, labor organization member or licensee, has taken a genetic test, and no person may disclose the results of such a test to an employer, labor organization, employment agency or licensing agency without the prior written and informed consent of the subject of the test.

942.07(4) (4) Whoever violates this section is guilty of a Class B misdemeanor.

942.07 History History: 1991 a. 117.

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 to observe, or capable of observing, the activities of a person. “Surveillance device” includes a peephole.

942.08(2) (2) Except as provided in sub. (4), 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 to observe 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(3) (3) Whoever knowingly installs or uses any device, instrument, mechanism, or contrivance to intentionally view, broadcast, or record under the outer clothing of an individual that individual’s genitals, pubic area, breast, or buttocks, including genitals, pubic area, breasts, or buttocks that are covered by undergarments, or to intentionally view, broadcast, or record a body part of an individual that is not otherwise visible, without that individual’s consent, is guilty of a Class I felony.

942.08(4) (4) A person who commits a violation specified under sub. (2) is guilty of a Class I felony if a victim of the violation had not, at the time of the violation, attained the age of 18 years.

942.08 History History: 1997 a. 271; 2003 a. 50; 2007 a. 198; 2015 a. 80, 292, 320; 2017 a. 365 s. 110.

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, recording, or other visual or audio representation, or records or stores in any medium data that represents a visual image.

942.09(1)(ae) (ae) “Consent” means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to the act. A person who has not attained the age of 18 is incapable of consent. The following persons are presumed incapable of consent but the presumption may be rebutted by competent evidence, subject to the provisions of s. 972.11 (2):

942.09(1)(ae)1. 1. A person suffering from a mental illness or defect that impairs capacity to appraise personal conduct.

942.09(1)(ae)2. 2. A person who is unconscious or for any other reason is physically unable to communicate unwillingness to an act.

942.09(1)(ag) (ag) “Intimate representation” means any of the following:

942.09(1)(ag)1. 1. A representation of a nude or partially nude person.

942.09(1)(ag)2. 2. A representation of clothed, covered, or partially clothed or covered genitalia or buttock that is not otherwise visible to the public.

942.09(1)(ag)3. 3. A representation of a person urinating, defecating, or using a feminine hygiene product.

942.09(1)(ag)4. 4. A representation of person engaged in sexual intercourse or sexual contact, as defined in s. 940.225 (5) (b) or (c).

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 website on the Internet, if the website 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, recording, other visual or audio representation, or data that represents a visual image or audio recording.

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) Except as provided in par. (dr), whoever does any of the following is guilty of a Class I felony:

942.09(2)(am)1. 1. Captures an intimate representation without the consent of the person depicted under circumstances 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 does not consent to the capture of the intimate representation.

942.09(2)(am)2. 2. Makes a reproduction of an intimate representation that the person knows or has reason to know was captured in violation of subd. 1. and that depicts an intimate representation captured in violation of subd. 1., if the person depicted in the reproduction did not consent to the making of the reproduction.

942.09(2)(am)3. 3. Possesses, distributes, or exhibits an intimate 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 intimate 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 in the intimate representation or reproduction did not consent to the possession, distribution, or exhibition.

942.09(2)(bm) (bm)

942.09(2)(bm)1m. 1m. Notwithstanding par. (am), if the person depicted in an intimate representation or reproduction is a child, a parent, guardian, or legal custodian of the child may do any of the following:

942.09(2)(bm)1m.a. a. Capture and possess the representation or make and possess the reproduction depicting the child.

942.09(2)(bm)1m.b. b. Distribute or exhibit a representation captured or possessed under subd. 1m. a., or distribute or exhibit a reproduction made or possessed under subd. 1m. a.

942.09(2)(bm)2m. 2m. Subdivision 1m. does not apply to a parent, guardian, or legal custodian of a child who captures, possesses, makes, distributes, or exhibits a representation depicting the child in violation of s. 948.05 or 948.12 or for the purpose of sexual arousal, gratification, humiliation, degradation, or monetary or commercial gain.

942.09(2)(cm) (cm) Paragraph (am) 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) 1m. b., if the possession, exhibition, or distribution is not for the purpose of sexual arousal, gratification, humiliation, degradation, or monetary or commercial gain.

942.09(2)(dm) (dm) This subsection does not apply to a provider of an interactive computer service, as defined in 47 USC 230 (f) (2), or to an information service or telecommunications service, as defined in 47 USC 153, if the intimate representation or reproduction is provided to the interactive computer service, information service, or telecommunications service by a 3rd party, or to a person who posts or publishes a private representation that is newsworthy or of public importance.

942.09(2)(dr) (dr) Except as provided in par. (bm), a person who commits a violation specified under par. (am) is guilty of a Class H felony if the person depicted in violation of par. (am) had not, at the time of the violation, attained the age of 18 years.

942.09(3m) (3m) 

942.09(3m)(a) (a) Except as provided in par. (am), 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)(am) (am) A person who commits a violation specified under par. (a) is guilty of a Class I felony if the person depicted or represented in the violation of par. (a) had not, at the time of the violation, attained the age of 18 years.

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 the purpose of sexual arousal, gratification, humiliation, degradation, or monetary or commercial gain.

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.