Chapter 948

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.

948.11(1)(e) (e) “Person” means any individual, partnership, firm, association, corporation or other legal entity.

948.11(1)(f) (f) “Sexual excitement” means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

948.11(2) (2) Criminal penalties.

948.11(2)(a) (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:

948.11(2)(a)1. 1. The person knows or reasonably should know that the child has not attained the age of 18 years.

948.11(2)(a)2. 2. The person has face-to-face contact with the child before or during the sale, rental, exhibit, playing, distribution, or loan.

948.11(2)(am) (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:

948.11(2)(am)1. 1. The person knows or reasonably should know that the child has not attained the age of 18 years.

948.11(2)(am)2. 2. The person has face-to-face contact with the child before or during the communication.

948.11(2)(b) (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:

948.11(2)(b)1. 1. The person knows or reasonably should know that the child has not attained the age of 18 years.

948.11(2)(b)2. 2. The person has face-to-face contact with the child.

948.11(2)(c) (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.

948.11(3) (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.

948.11(4) (4) Libraries and educational institutions.

948.11(4)(a) (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.

948.11(4)(b) (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:

948.11(4)(b)1. 1. A public elementary or secondary school.

948.11(4)(b)2. 2. A private school, as defined in s. 115.001 (3r), or a tribal school, as defined in s. 115.001 (15m).

948.11(4)(b)3. 3. Any school offering vocational, technical or adult education that:

948.11(4)(b)3.a. a. Is a technical college, is a school approved by the department of safety and professional services under s. 440.52, or is a school described in s. 440.52 (1) (e) 6., 7. or 8.; and

948.11(4)(b)3.b. b. Is exempt from taxation under section 501 (c) (3) of the internal revenue code, as defined in s. 71.01 (6).

948.11(4)(b)4. 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).

948.11(4)(b)5. 5. A library that receives funding from any unit of government.

948.11(5) (5) Severability. The provisions of this section, including the provisions of sub. (4), are severable, as provided in s. 990.001 (11).

948.11 History 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; 2017 a. 59.

948.11 Annotation 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).

948.11 Annotation An individual violates this section if the individual, 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.

948.11 Annotation The 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 victims’ 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.

948.11 Annotation “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.

948.11 Annotation 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.

948.12 948.12 Possession of child pornography.

948.12(1m) (1m) Whoever possesses, or accesses in any way with the intent to view, any undeveloped film, photographic negative, photograph, motion picture, videotape, or other recording of a child engaged in sexually explicit conduct under all of the following circumstances may be penalized under sub. (3):

948.12(1m)(a) (a) The person knows that he or she possesses or has accessed the material.

948.12(1m)(b) (b) The person knows, or reasonably should know, that the material that is possessed or accessed contains depictions of sexually explicit conduct.

948.12(1m)(c) (c) The person knows or reasonably should know that the child depicted in the material who is engaged in sexually explicit conduct has not attained the age of 18 years.

948.12(2m) (2m) Whoever exhibits or plays a recording of a child engaged in sexually explicit conduct, if all of the following apply, may be penalized under sub. (3):

948.12(2m)(a) (a) The person knows that he or she has exhibited or played the recording.

948.12(2m)(b) (b) Before the person exhibited or played the recording, he or she knew the character and content of the sexually explicit conduct.

948.12(2m)(c) (c) Before the person exhibited or played the recording, he or she knew or reasonably should have known that the child engaged in sexually explicit conduct had not attained the age of 18 years.

948.12(3) (3) 

948.12(3)(a) (a) Except as provided in par. (b), a person who violates sub. (1m) or (2m) is guilty of a Class D felony.

948.12(3)(b) (b) A person who violates sub. (1m) or (2m) is guilty of a Class I felony if the person is under 18 years of age when the offense occurs.

948.12 History History: 1987 a. 332; 1995 a. 67; 2001 a. 16, 109; 2005 a. 433; 2011 a. 271.

948.12 Annotation A violation of this section must be based on the content of the photograph and how it was produced. Evidence of the location and manner of storing the photo are not properly considered. State v. A.H., 211 Wis. 2d 561, 566 N.W.2d 858 (Ct. App. 1997), 96-2311.

948.12 Annotation For purposes of multiplicity analysis, each image possessed can be prosecuted separately. Prosecution is not based upon the medium of reproduction. Multiple punishment is appropriate for a defendant who compiled and stored multiple images over time. State v. Multaler, 2002 WI 35, 252 Wis. 2d 54, 643 N.W.2d 437, 00-1846.

948.12 Annotation Criminalizing child pornography presents the risk of self-censorship of constitutionally protected material. Criminal responsibility may not be imposed without some element of scienter, the degree of knowledge that makes a person legally responsible for the consequences of the person’s act or omission. In this section, “reasonably should know” is less than actual knowledge but still requires more than the standard used in civil negligence actions, which is constitutionally sufficient. State v. Schaefer, 2003 WI App 164, 266 Wis. 2d 719, 668 N.W.2d 760, 01-2691.

948.12 Annotation There was sufficient evidence in the record to demonstrate that the defendant knowingly possessed the child pornography images on the defendant’s computer because the defendant repeatedly visited child pornography websites, clicked on thumbnail images to create larger pictures for viewing, accessed five images twice, and saved at least one image to the defendant’s personal folder. State v. Lindgren, 2004 WI App 159, 275 Wis. 2d 851, 687 N.W.2d 60, 03-1868.

948.12 Annotation Sub. (1m) forbids only depictions of real children engaged in sexually explicit activity. Sub. (1m) (c) specifies that to be convicted under the statute, the person possessing the pornography must know or have reason to know that the child engaged in sexually explicit conduct has not attained the age of 18 years. This element does not speak of depictions at all, but rather of a child who has not attained the age of 18 years. State v. Van Buren, 2008 WI App 26, 307 Wis. 2d 447, 746 N.W.2d 545, 06-3025.

948.12 Annotation Sub. (1m) criminalizes the knowing possession of any photograph of a child engaging in sexually explicit conduct. Expert testimony or other evidence to establish the reality of apparently real photographs is not required. When there has been no evidence adduced that the photographs are anything other than what they appear to be, the photographs themselves are sufficient evidence of the reality of what they depict. State v. Van Buren, 2008 WI App 26, 307 Wis. 2d 447, 746 N.W.2d 545, 06-3025.

948.12 Annotation Individuals who purposely view digital images of child pornography on the Internet, even though the images are not found in the person’s computer hard drive, nonetheless knowingly possess those images in violation of sub. (1m). An individual knowingly possesses child pornography when the individual affirmatively pulls up images of child pornography on the Internet and views those images knowing that they contain child pornography. Whether the proof is hard drive evidence or something else should not matter. State v. Mercer, 2010 WI App 47, 324 Wis. 2d 506, 782 N.W.2d 125, 08-1763.

948.12 Annotation The word “may” in this section does not mean that the circuit court has the option of whether to sentence a violator under sub. (3) or whether to impose a bifurcated sentence but rather identifies which of the two felony classifications applies to the violation at hand: Class D or Class I. This section and s. 939.617 work harmoniously together in setting the parameters for the punishment for the crime of possession of child pornography: this section sets forth the maximum allowable sentence based on the applicable felony classification, and s. 939.617 sets forth the minimum allowable sentence. They are not in conflict. State v. Brott, 2023 WI App 45, 409 Wis. 2d 96, 996 N.W.2d 78, 21-2001.

948.125 948.125 Possession of virtual child pornography.