Chapter 948

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.

948.125(1) (1) Definitions. In this section:

948.125(1)(a) (a) “Depiction of a purported child” means a visual representation that appears to depict an actual child but may or may not depict an actual child.

948.125(1)(b) (b) “Obscene material” means a photograph, film, motion picture, or digital or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, that satisfies all of the following:

948.125(1)(b)1. 1. The average person, applying contemporary community standards, would find appeals to the prurient interest if taken as a whole.

948.125(1)(b)2. 2. Under contemporary community standards, describes or shows sexually explicit conduct in a patently offensive way.

948.125(1)(b)3. 3. Lacks serious literary, artistic, political, educational, or scientific value, if taken as a whole.

948.125(2) (2) Possession and penalty. Whoever receives, distributes, produces, or possesses, or accesses in any way with the intent to view, obscene material that contains a depiction of a purported child engaging in sexually explicit conduct is guilty of the following if the person knows that he or she received, distributed, produced, possessed, or accessed the material and if the person knows, or reasonably should know, that the material contains a depiction of a purported child engaging in sexually explicit conduct:

948.125(2)(a) (a) Except as provided in par. (b), a Class D felony.

948.125(2)(b) (b) If the actor is under 18 years of age when the offense occurs, a Class I felony.

948.125 History History: 2023 a. 224.

948.13 948.13 Child sex offender working with children.

948.13(1) (1) In this section, “serious child sex offense” means any of the following:

948.13(1)(a) (a) A crime under s. 940.22 (2) or 940.225 (2) (c) or (cm), if the victim is under 18 years of age at the time of the offense, a crime under s. 940.302 (2) if s. 940.302 (2) (a) 1. b. applies, or a crime under s. 948.02 (1) or (2), 948.025 (1), 948.05 (1) or (1m), 948.051, 948.06, 948.07 (1), (2), (3), or (4), 948.075, or 948.085.

948.13(1)(b) (b) A crime under federal law or the law of any other state or, prior to May 7, 1996, under the law of this state that is comparable to a crime specified in par. (a).

948.13(2) (2) 

948.13(2)(a) (a) Except as provided in pars. (b) and (c), whoever has been convicted of a serious child sex offense and subsequently engages in an occupation or participates in a volunteer position that requires him or her to work or interact primarily and directly with children under 16 years of age is guilty of a Class F felony.

948.13(2)(b) (b) If all of the following apply, the prohibition under par. (a) does not apply to a person who has been convicted of a serious child sex offense until 90 days after the date on which the person receives actual written notice from a law enforcement agency, as defined in s. 165.77 (1) (b), of the prohibition under par. (a):

948.13(2)(b)1. 1. The only serious child sex offense for which the person has been convicted is a crime under s. 948.02 (2).

948.13(2)(b)2. 2. The person was convicted of the serious child sex offense before May 7, 2002.

948.13(2)(b)3. 3. The person is eligible to petition for an exemption from the prohibition under sub. (2m) because he or she meets the criteria specified in sub. (2m) (a) 1. and 1m.

948.13(2)(c) (c) The prohibition under par. (a) does not apply to a person who is exempt under a court order issued under sub. (2m).

948.13(2m) (2m) 

948.13(2m)(a) (a) A person who has been convicted of a crime under s. 948.02 (2), 948.025 (1), or 948.085 may petition the court in which he or she was convicted to order that the person be exempt from sub. (2) (a) and permitted to engage in an occupation or participate in a volunteer position that requires the person to work or interact primarily and directly with children under 16 years of age. The court may grant a petition filed under this paragraph if the court finds that all of the following apply:

948.13(2m)(a)1. 1. At the time of the commission of the crime under s. 948.02 (2), 948.025 (1), or 948.085 the person had not attained the age of 19 years and was not more than 4 years older or not more than 4 years younger than the child with whom the person had sexual contact or sexual intercourse.

948.13(2m)(a)1m. 1m. The child with whom the person had sexual contact or sexual intercourse had attained the age of 13 but had not attained the age of 16.

948.13(2m)(a)2. 2. It is not necessary, in the interest of public protection, to require the person to comply with sub. (2) (a).

948.13(2m)(b) (b) A person filing a petition under par. (a) shall send a copy of the petition to the district attorney who prosecuted the person. The district attorney shall make a reasonable attempt to contact the victim of the crime that is the subject of the person’s petition to inform the victim of his or her right to make or provide a statement under par. (d).

948.13(2m)(c) (c) A court may hold a hearing on a petition filed under par. (a) and the district attorney who prosecuted the person may appear at the hearing. Any hearing that a court decides to hold under this paragraph shall be held no later than 30 days after the petition is filed if the petition specifies that the person filing the petition is covered under sub. (2) (b), that he or she has received actual written notice from a law enforcement agency of the prohibition under sub. (2) (a), and that he or she is seeking an exemption under this subsection before the expiration of the 90-day period under sub. (2) (b).

948.13(2m)(d) (d) Before deciding a petition filed under par. (a), the court shall allow the victim of the crime that is the subject of the petition to make a statement in court at any hearing held on the petition or to submit a written statement to the court. A statement under this paragraph must be relevant to the issues specified in par. (a) 1., 1m. and 2.

948.13(2m)(e) (e)

948.13(2m)(e)1. 1. Before deciding a petition filed under par. (a), the court may request the person filing the petition to be examined by a physician, psychologist or other expert approved by the court. If the person refuses to undergo an examination requested by the court under this subdivision, the court shall deny the person’s petition without prejudice.

948.13(2m)(e)2. 2. If a person is examined by a physician, psychologist or other expert under subd. 1., the physician, psychologist or other expert shall file a report of his or her examination with the court, and the court shall provide copies of the report to the person and, if he or she requests a copy, to the district attorney. The contents of the report shall be confidential until the physician, psychologist or other expert has testified at a hearing held under par. (c). The report shall contain an opinion regarding whether it would be in the interest of public protection to require the person to comply with sub. (2) (a) and the basis for that opinion.

948.13(2m)(e)3. 3. A person who is examined by a physician, psychologist or other expert under subd. 1. is responsible for paying the cost of the services provided by the physician, psychologist or other expert, except that if the person is indigent the cost of the services provided by the physician, psychologist or other expert shall be paid by the county. If the person claims or appears to be indigent, the court shall refer the person to the authority for indigency determinations under s. 977.07 (1), except that the person shall be considered indigent without another determination under s. 977.07 (1) if the person is represented by the state public defender or by a private attorney appointed under s. 977.08.

948.13(2m)(em) (em) A court shall decide a petition no later than 45 days after the petition is filed if the petition specifies that the person filing the petition is covered under sub. (2) (b), that he or she has received actual written notice from a law enforcement agency of the prohibition under sub. (2) (a), and that he or she is seeking an exemption under this subsection before the expiration of the 90-day period under sub. (2) (b).

948.13(2m)(f) (f) The person who filed the petition under par. (a) has the burden of proving by clear and convincing evidence that he or she satisfies the criteria specified in par. (a) 1., 1m. and 2. In deciding whether the person has satisfied the criterion specified in par. (a) 2., the court may consider any of the following:

948.13(2m)(f)1. 1. The ages, at the time of the violation, of the person who filed the petition and the victim of the crime that is the subject of the petition.

948.13(2m)(f)2. 2. The relationship between the person who filed the petition and the victim of the crime that is the subject of the petition.

948.13(2m)(f)3. 3. Whether the crime that is the subject of the petition resulted in bodily harm to the victim.

948.13(2m)(f)4. 4. Whether the victim of the crime that is the subject of the petition suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.

948.13(2m)(f)5. 5. The probability that the person who filed the petition will commit other serious child sex offenses in the future.

948.13(2m)(f)6. 6. The report of the examination conducted under par. (e).

948.13(2m)(f)7. 7. Any other factor that the court determines may be relevant to the particular case.

948.13(3) (3) 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 primarily and directly with children under 16 years of age:

948.13(3)(a) (a) Teaching children.

948.13(3)(b) (b) Child care.

948.13(3)(c) (c) Youth counseling.

948.13(3)(d) (d) Youth organization.

948.13(3)(e) (e) Coaching children.

948.13(3)(f) (f) Parks or playground recreation.

948.13(3)(g) (g) School bus driving.

948.13 History History: 1995 a. 265; 1997 a. 130, 220; 1999 a. 3; 2001 a. 97, 109; 2003 a. 321; 2005 a. 277; 2007 a. 97, 116.

948.14 948.14 Registered sex offender and photographing minors.

948.14(1) (1) Definitions. In this section:

948.14(1)(a) (a) “Captures a representation” has the meaning given in s. 942.09 (1) (a).

948.14(1)(b) (b) “Minor” means an individual who is under 17 years of age.

948.14(1)(c) (c) “Representation” has the meaning giving in s. 942.09 (1) (c).

948.14(1)(d) (d) “Sex offender” means a person who is required to register under s. 301.45.

948.14(2) (2) Prohibition.

948.14(2)(a) (a) A sex offender may not intentionally capture a representation of any minor without the written consent of the minor’s parent, legal custodian, or guardian. The written consent required under this paragraph shall state that the person seeking the consent is required to register as a sex offender with the department of corrections.

948.14(2)(b) (b) Paragraph (a) does not apply to a sex offender who is capturing a representation of a minor if the sex offender is the minor’s parent, legal custodian, or guardian.

948.14(3) (3) Penalty. Whoever violates sub. (2) is guilty of a Class I felony.

948.14 Note NOTE: The Court of Appeals in State v. Oatman, 2015 WI App 76, concluded that this section is overbroad on its face and invalid in its entirety.

948.14 History History: 2005 a. 432.

948.14 Annotation The structure of s. 942.09, with its separate subdivisions for capturing and possessing a representation, and the legislature’s decision to import the definition of “captures a representation” from s. 942.09, along with legislative history indicating that the purpose of this section is to prohibit sex offenders from photographing, filming, or videotaping minors without parental consent, leads to the conclusion that “stores in any medium data that represents a visual image” as used in the definition of “captures a representation” in s. 942.09 does not include the mere possession of visual images. State v. Chagnon, 2015 WI App 66, 364 Wis. 2d 719, 870 N.W.2d 27, 14-2770.