Code Sections

Wisconsin Statutes Chapter 948: Crimes Against Children and Section 944.21 Obscene Material or Performance

What is Prohibited?

It's illegal in Wisconsin to engage in many different activities related to child pornography, from possession to creating the materials to making a child watch porn. The child pornography crimes are:

• Possession of Child Pornography - Knowingly possessing, exhibiting, playing or accessing to view (i.e. watching on the internet) any film, photograph, negative, or other recording of a child engaged in sexually explicit conduct (vaginal, oral, or anal sex, intrusion of any body part or object into the genital or anal openings, bestiality, masturbation, sadism, masochism, or lewd exhibition of intimate parts).
• Obscene Material or Performance - Knowingly importing, printing, selling, or displays obscene materials or producing or participating in obscene performances. Also, distributing or exhibiting obscene materials to a person under 18 (or having to do so) is illegal.
• Sexual Exploitation of a Child - Three types of child porn related activities are child exploitation:
  • Knowingly recording or displaying a child under 18 engaged in sexually explicit conduct
  • Producing, promoting, importing (even for home use), selling, or possessing with intent to sell any recording of a child the person knows or should know is under 18 engaging in sexual conduct
  • A parent or guardian of a child under 18 who knowingly permits or encourages the child to participate in the child pornography
• Causing a Child to View or Listen to Sexual Activity - Intentionally causing a child under 18 to view or listen to sexual conduct to arose the person or humiliate the child (including pornography).
• Registered Sex Offender Photographing Minors - A sex offender who intentionally takes photographs of a child under 17 years old (other than his or her own child) without the written consent of the child's parent or guardian, which includes acknowledgement that the photographer is a registered sex offender.
• Child Enticement - Causing or attempting to cause a child under 18 to go to any place not in the public view to record the child engaged in sexual activity (also illegal if purpose is to have sex or engage in prostitution with the child, give the child drugs, beat the child, etc).
• Trafficking of a Child - Knowingly recruiting, providing, or obtaining any child for the purposes of commercial sex acts (which includes sexually explicit performances) or knowingly benefiting from this crime.

Depending on the defendant's actions, a person creating or trying to make child porn could also be convicted of other crimes. For example, Use of a Computer to Facilitate a Child Sex Crime, Sexual Assault of a Child, and Incest with a Child (includes failure to protect from incest).

Penalties

In Wisconsin, felonies, misdemeanors, and forfeitures (like infractions in other states) are divided by class (Classes A-I for felonies) with varying maximum sentences for each class. The penalties applicable to Wisconsin child pornography offenses are:

• Class C Felony - Imprisonment up to 40 years and a fine up to $100,000 (sexual exploitation of a child, trafficking of a child)
• Class D Felony - Imprisonment up to 25 years and a fine up to $100,000 (possession of child pornography, child enticement)
• Class F Felony - Imprisonment up to 12.5 years and a fine up to $25,000 (sexual exploitation of a child by a defendant under 18, causing a child under 13 to view or listen to sexual activity)
• Class H Felony - Imprisonment up to 6 years and a fine up to $10,000 (causing a 13-17 year old to view or listen to sexual activity, obscene materials with two prior convictions or as commercial distributer)
• Class I Felony - Imprisonment up to 3.5 years and a fine up to $10,000 (possession of child pornography by a defendant under 18, registered sex offender photographing minors)
• Class A Misdemeanor - Imprisonment up to 9 months and a fine up to $10,000 (obscene materials second offense)
• Class A Forfeiture - fine up to $10,000 (obscene materials first offense)

Defenses

Many common defenses may apply to a child porn case, such as innocence, insanity, intoxication (involuntarily only), or lack of intent (such as you were looking at porn on your computer and didn't want the child pornography site pop-up and closed it as soon as it came up). Also, Wisconsin law provides for some specific crime defenses.

Mistake as to the age of a child for crimes in Wisconsin is not a defense. Similar to many statutory rape laws where consent is not relevant. However, the Sexual Exploitation of a Child statute allows a defense that the person reasonably believed the child was 18 or older. This may come about, for example, by a pornography creator asking for identification and the child presented a valid-looking fake ID so he or she could be hired to act in the porn.

Another statute specific defense includes that libraries and educational institutions and their employees or boards in official capacity can't be prosecuted for having obscene material.