Chapter 948

948.05(1m) (1m) Whoever produces, performs in, profits from, promotes, imports into the state, reproduces, advertises, sells, distributes, or possesses with intent to sell or distribute, any recording of a child engaging in sexually explicit conduct may be penalized under sub. (2p) if the person knows the character and content of the sexually explicit conduct involving the child and if the person knows or reasonably should know that the child engaging in the sexually explicit conduct has not attained the age of 18 years.

948.05(2) (2) A person responsible for a child’s welfare who knowingly permits, allows or encourages the child to engage in sexually explicit conduct for a purpose proscribed in sub. (1) (a) or (b) or (1m) may be penalized under sub. (2p).

948.05(2p) (2p) 

948.05(2p)(a) (a) Except as provided in par. (b), a person who violates sub. (1), (1m), or (2) is guilty of a Class C felony.

948.05(2p)(b) (b) A person who violates sub. (1), (1m), or (2) is guilty of a Class F felony if the person is under 18 years of age when the offense occurs.

948.05(3) (3) It is an affirmative defense to prosecution for violation of sub. (1) (a) or (b) or (2) if the defendant had reasonable cause to believe 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.

948.05 History History: 1987 a. 332; 1999 a. 3; 2001 a. 16, 109; 2005 a. 433.

948.05 Annotation “Import” under sub. (1) (c) [now sub. (1m)] means bringing in from an external source and does not require a commercial element or exempt personal use. State v. Bruckner, 151 Wis. 2d 833, 447 N.W.2d 376 (Ct. App. 1989).

948.05 Annotation The purposes of this section, child exploitation, and s. 948.07, 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, 98-0642.

948.051 948.051 Trafficking of a child.

948.051(1) (1) Whoever knowingly recruits, entices, provides, obtains, harbors, transports, patronizes, or solicits or knowingly attempts to recruit, entice, provide, obtain, harbor, transport, patronize, or solicit any child for the purpose of commercial sex acts, as defined in s. 940.302 (1) (a), is guilty of a Class C felony.

948.051(2) (2) Whoever benefits in any manner from a violation of sub. (1) is guilty of a Class C felony if the person knows that the benefits come from an act described in sub. (1).

948.051(3) (3) Any person who incurs an injury or death as a result of a violation of sub. (1) or (2) may bring a civil action against the person who committed the violation. In addition to actual damages, the court may award punitive damages to the injured party, not to exceed treble the amount of actual damages incurred, and reasonable attorney fees.

948.051 History History: 2007 a. 116; 2013 a. 362; 2015 a. 367.

948.051 Annotation Under the Radar: Human Trafficking in Wisconsin. Monaco-Wilcox & Mueller. Wis. Law. Oct. 2017.

948.055 948.055 Causing a child to view or listen to sexual activity.

948.055(1) (1) Whoever intentionally causes a child who has not attained 18 years of age, or an individual who the actor believes or has reason to believe has not attained 18 years of age, to view or listen to sexually explicit conduct may be penalized as provided in sub. (2) if the viewing or listening is for the purpose of sexually arousing or gratifying the actor or humiliating or degrading the child or individual.

948.055(2) (2) Whoever violates sub. (1) is guilty of:

948.055(2)(a) (a) A Class F felony if any of the following applies:

948.055(2)(a)1. 1. The child has not attained the age of 13 years.

948.055(2)(a)2. 2. The actor believes or has reason to believe that the child has not attained the age of 13 years.

948.055(2)(b) (b) A Class H felony if any of the following applies:

948.055(2)(b)1. 1. The child has attained the age of 13 years but has not attained the age of 18 years.

948.055(2)(b)2. 2. The actor believes or has reason to believe that the child has attained the age of 13 years but has not attained the age of 18 years.

948.055 History History: 1987 a. 334; 1989 a. 359; 1993 a. 218 ss. 6, 7; Stats. 1993 s. 948.055; 1995 a. 67; 2001 a. 109; 2011 a. 284.

948.06 948.06 Incest with a child. Whoever does any of the following is guilty of a Class C felony:

948.06(1) (1) Marries or has sexual intercourse or sexual contact with a child he or she knows is related, either by blood or adoption, and the child is related in a degree of kinship closer than 2nd cousin.

948.06(1m) (1m) Has sexual contact or sexual intercourse with a child if the actor is the child’s stepparent.

948.06(2) (2) Is a person responsible for the child’s welfare and:

948.06(2)(a) (a) Has knowledge that another person who is related to the child by blood or adoption in a degree of kinship closer than 2nd cousin or who is a child’s stepparent has had or intends to have sexual intercourse or sexual contact with the child;

948.06(2)(b) (b) Is physically and emotionally capable of taking action that will prevent the intercourse or contact from occurring or being repeated;

948.06(2)(c) (c) Fails to take that action; and

948.06(2)(d) (d) The failure to act exposes the child to an unreasonable risk that intercourse or contact may occur between the child and the other person or facilitates the intercourse or contact that does occur between the child and the other person.

948.06 History History: 1987 a. 332; 1995 a. 69; 2001 a. 109; 2005 a. 277.

948.07 948.07 Child enticement. Whoever, with intent to commit any of the following acts, causes or attempts to cause any child who has not attained the age of 18 years to go into any vehicle, building, room or secluded place is guilty of a Class D felony:

948.07(1) (1) Having sexual contact or sexual intercourse with the child in violation of s. 948.02, 948.085, or 948.095.

948.07(2) (2) Causing the child to engage in prostitution.

948.07(3) (3) Exposing genitals, pubic area, or intimate parts to the child or causing the child to expose genitals, pubic area, or intimate parts in violation of s. 948.10.

948.07(4) (4) Recording the child engaging in sexually explicit conduct.

948.07(5) (5) Causing bodily or mental harm to the child.

948.07(6) (6) Giving or selling to the child a controlled substance or controlled substance analog in violation of ch. 961.

948.07 History History: 1987 a. 332; 1995 a. 67, 69, 448, 456; 2001 a. 16, 109; 2005 a. 277; 2013 a. 362.

948.07 Annotation The penalty scheme of sub. (3) is not unconstitutionally irrational. That the statute, unlike sub. (1), does 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).

948.07 Annotation 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.

948.07 Annotation 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, 98-0642.

948.07 Annotation 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, 98-0642.

948.07 Annotation 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, 00-2684.

948.07 Annotation Attempted child enticement may be charged when the intervening extraneous factor that makes the offense an attempted rather than a completed crime is that unbeknownst to the defendant, the “victim” is an adult government agent posing as a child. The 1st amendment to the U.S. Constitution 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, 646 N.W.2d 287, 00-2841.

948.07 Annotation 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, 01-0138.

948.07 Annotation 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, 01-1362.

948.07 Annotation Like the child enticement statute in Robins, 2002 WI 65, 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 scrutiny under the 1st amendment to the U.S. Constitution. State v. Brienzo, 2003 WI App 203, 267 Wis. 2d 349, 671 N.W.2d 700, 01-1362.

948.07 Annotation 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, 03-1710.

948.07 Annotation “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, 09-0559.

948.07 Annotation 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, 15-2429.

948.075 948.075 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) or (2) is guilty of a Class C felony.

948.075(2) (2) 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.

948.075(3) (3) 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.

948.075 History History: 2001 a. 109; 2003 a. 321; 2005 a. 433; 2007 a. 96.

948.075 Annotation The 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, 06-0283.

948.075 Annotation The defendant’s use of a webcam to transmit video of himself was, under the circumstances of this case, nothing more than the use of the defendant’s 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, 08-0587.

948.075 Annotation The element use of a “computerized communication system” in sub. (1r) was satisfied when the defendant used a 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 the defendant’s cellphone as a computer to send communications to the victim over the computer system used by their cellphones so that the defendant could have sexual contact with the victim. State v. McKellips, 2016 WI 51, 369 Wis. 2d 437, 881 N.W.2d 258, 14-0827.

948.075 Annotation 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, 14-0827.

948.075 Annotation 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 it was not unconstitutional as applied to the defendant. State v. Heidke, 2016 WI App 55, 370 Wis. 2d 771, 883 N.W.2d 162, 15-1420.

948.08 948.08 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.

948.08 History History: 1987 a. 332; 1995 a. 69; 2001 a. 109; 2007 a. 80.

948.08 Annotation 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, 07-1192.

948.081 948.081 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.

948.081 History History: 2017 a. 128.

948.085 948.085 Sexual assault of a child placed in substitute care. Whoever does any of the following is guilty of a Class C felony:

948.085(1) (1) Has sexual contact or sexual intercourse with a child for whom the actor is a foster parent.

948.085(2) (2) 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:

948.085(2)(a) (a) A shelter care facility licensed under s. 48.66 (1) (a).

948.085(2)(b) (b) A group home licensed under s. 48.625 or 48.66 (1).

948.085(2)(c) (c) A facility described in s. 940.295 (2) (m).

948.085 History History: 2005 a. 277; 2007 a. 97; 2009 a. 28.

948.09 948.09 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.

948.09 History History: 1987 a. 332; 2017 a. 174.

948.093 948.093 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.

948.093 History History: 2017 a. 174.

948.095 948.095 Sexual assault of a child by a school staff person or a person who works or volunteers with children.

948.095(1) (1) In this section:

948.095(1)(a) (a) “School” means a public or private elementary or secondary school, or a tribal school, as defined in s. 115.001 (15m).

948.095(1)(b) (b) “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.

948.095(2) (2) 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:

948.095(2)(a) (a) The child is enrolled as a student in a school or a school district.

948.095(2)(b) (b) The defendant is a member of the school staff of the school or school district in which the child is enrolled as a student.

948.095(3) (3) 

948.095(3)(a) (a) 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.