Chapter 948

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.

948.095(3)(b) (b) Whoever violates par. (a) is guilty of a Class H felony.

948.095(3)(c) (c) Paragraph (a) does not apply to an offense to which sub. (2) applies.

948.095(3)(d) (d) 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:

948.095(3)(d)1. 1. Teaching children.

948.095(3)(d)2. 2. Child care.

948.095(3)(d)3. 3. Youth counseling.

948.095(3)(d)4. 4. Youth organization.

948.095(3)(d)5. 5. Coaching children.

948.095(3)(d)6. 6. Parks or playground recreation.

948.095(3)(d)7. 7. School bus driving.

948.095 History History: 1995 a. 456; 2001 a. 109; 2005 a. 274; 2007 a. 97; 2009 a. 302.

948.095 Annotation 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. See also State v. Kaster, 2006 WI App 72, 292 Wis. 2d 252, 714 N.W.2d 238, 05-1285.

948.098 948.098 Sexual misconduct by a school staff person or volunteer.

948.098(1) (1) In this section:

948.098(1)(a) (a) “Physical contact of a sexual nature” means any of the following types of intentional touching, whether direct or through clothing:

948.098(1)(a)1. 1. Intentional touching by the actor or, upon the actor’s instruction, by another person, by the use of any body part or object, if the purpose of the intentional touching is any of the following:

948.098(1)(a)1.a. a. To sexually degrade or sexually humiliate the pupil.

948.098(1)(a)1.b. b. To sexually degrade or sexually humiliate the actor.

948.098(1)(a)1.c. c. To sexually arouse or sexually gratify the pupil.

948.098(1)(a)1.d. d. To sexually arouse or sexually gratify the actor.

948.098(1)(a)2. 2. Intentional touching by the pupil, by the use of any body part or object, of the actor or, if done upon the actor’s instructions, another person, if the purpose of the intentional touching is any of the following:

948.098(1)(a)2.a. a. To sexually degrade or sexually humiliate the pupil.

948.098(1)(a)2.b. b. To sexually degrade or sexually humiliate the actor.

948.098(1)(a)2.c. c. To sexually arouse or sexually gratify the pupil.

948.098(1)(a)2.d. d. To sexually arouse or sexually gratify the actor.

948.098(1)(b) (b) “School” means a public or private elementary or secondary school, or a tribal school, as defined in s. 115.001 (15m).

948.098(1)(c) (c) “School staff member” 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. “School staff member” includes a bus driver.

948.098(1)(d) (d) “Sexual misconduct” means verbal conduct of a sexual nature or physical contact of a sexual nature. “Sexual misconduct” includes conduct directed by a person at another person of the same or opposite gender.

948.098(1)(e) (e) “Verbal conduct of a sexual nature” means communications made intentionally for any of the following purposes:

948.098(1)(e)1. 1. Sexually degrading or sexually humiliating the pupil

948.098(1)(e)2. 2. Sexually degrading or sexually humiliating the actor.

948.098(1)(e)3. 3. Sexually arousing or sexually gratifying the pupil.

948.098(1)(e)4. 4. Sexually arousing or sexually gratifying the actor.

948.098 Note NOTE: Subd. 4. was created as subd. 3. by 2023 Wis. Act 200 and renumbered to subd. 4. by the legislative reference bureau under s. 13.92 (1) (bm) 2.

948.098(1)(f) (f) “Volunteer” means a person, other than a school staff member, who provides services to a school without compensation.

948.098(2) (2) Any school staff member or volunteer who commits an act of sexual misconduct against a pupil enrolled in the school is guilty of a Class I felony.

948.098(3) (3) A law enforcement officer who receives a report of an alleged violation of sub. (2) shall notify the department of public instruction of the alleged violation including the name of the person alleged and the name of the school district or school at which the person works or volunteers.

948.098 History History: 2023 a. 200; s. 13.92 (1) (bm) 2.; s. 35.17 correction in (1) (a) 2. (intro.).

948.10 948.10 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:

948.10(1)(a) (a) Except as provided in par. (b), a Class I felony.

948.10(1)(b) (b) A Class A misdemeanor if any of the following applies:

948.10(1)(b)1. 1. The actor is a child when the violation occurs.

948.10(1)(b)2. 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.

948.10(2) (2) Subsection (1) does not apply under any of the following circumstances:

948.10(2)(a) (a) The child is the defendant’s spouse.

948.10(2)(b) (b) A mother’s breast-feeding of her child.

948.10 History History: 1987 a. 332; 1989 a. 31; 1995 a. 165; 2009 a. 202; 2013 a. 362.

948.10 Annotation 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, 12-1776.

948.11 948.11 Exposing a child to harmful material or harmful descriptions or narrations.

948.11(1) (1) Definitions. In this section:

948.11(1)(ag) (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.

948.11(1)(ar) (ar) “Harmful material” means:

948.11(1)(ar)1. 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

948.11(1)(ar)2. 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.

948.11(1)(b) (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:

948.11(1)(b)1. 1. Predominantly appeals to the prurient, shameful or morbid interest of children;

948.11(1)(b)2. 2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for children; and

948.11(1)(b)3. 3. Lacks serious literary, artistic, political, scientific or educational value for children, when taken as a whole.

948.11(1)(d) (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.