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Wisconsin Sexting Laws

There are no specific laws in Wisconsin related to sexting currently. This means that according to the Wisconsin Department of Public Instruction, the dissemination of sexually explicit images depicting a minor constitutes child pornography. Consequently, the state punishes sexting under its child pornography laws.

Quick take:

  • Teens above 17 will face trial in adult court.
  • Sexting is a class I felony if both the accused and victim are below 18.
  • Teens tried in adult court must register as sex offenders upon conviction.
  • Once adjudicated in the juvenile system, teens may face trial in adult court for subsequent felony offences.
  • The youngest age at which a teen can be tried in adult court is 15

Wisconsin sexting laws summary

In Wisconsin, child pornography possession, dissemination, and creation are felonies. State statute 948.12. “Possession of child pornography” states that it is unlawful for anyone to access child pornography. The statute works under the assumption that the accused knew or should have known that the depicted individual was a child. Under state law, “child” refers to anyone under the age of 18.

Because of that, any material that depicts a child engaged in sexual conduct, be it a selfie, video, undeveloped film, or other media, constitutes child pornography. Note that “sexual conduct” refers to acts including the lewd exhibition of the genitals, masturbation, intercourse, fellatio, sodomy, and all acts intended for sexual gratification or arousal.

What if both the victim and accused are below 18?

Section 3. b of the statute provides that if both the accused and victim are below 18. Therefore, the actor is guilty of a Class I felony. A class I felony in Wisconsin is punishable by up to three years and six months in state prison and a fine not exceeding $10000.

Teens accused of class I felony will face trial in the juvenile system. Wisconsin juvenile system says that it aims to rehabilitate teens, not punish them. Consequently, the punishment options include monitoring, time at a juvenile facility, participation in an educational program, community service, probation, and other corrective punishments.

Note that child pornography possession is not the only option available to prosecutors. The facts presented may prompt prosecutors to pursue other charges, including sexual exploitation of a minor, causing a child to view or listen to sexual activity, child enticement, use of an electronic device to aid sex crime against a child, and other charges that apply.

What if a child sends sexually explicit images to an adult?

If the adult solicited or in any way caused the child to send the images or video, that adult is guilty of a class D felony for a first offense. A class D felony in Wisconsin is punishable by up to twenty-five years in state prison and a fine of up to $100000. The court may order both.

If you did not in any way encourage the child to send or create the images, taking reasonable steps to report the incident to law enforcement or someone with authority over the child is an affirmative defense. If accused, we recommend consulting with an attorney immediately.

948.12: what to remember:

  • Exhibiting or displaying media depicting a child engaged in sexual conduct is a violation of the statute.
  • The statute works under the assumption that the person knew, or reasonably should have known that the person depicted was a child.

Wisconsin sexting laws and sexual exploitation of a minor

Section 948.05, “sexual exploitation of a child,” prohibits recording, employing, using, coercing, and permitting a child under your care to create sexually explicit content or engage in sexual conduct. A violation of this statute constitutes a class C felony.

If the accused was a minor at the time of the crime, the individual is guilty of a Class F felony.

Note that violation of the statute applies even if the person depicted is the accused, meaning a teen may face trial for exploiting himself. For example, if a child takes nude selfies and disseminates them to another teen, the teen who created the images is guilty of exploitation. In addition, the receiving teen is guilty of possession and distribution if the individual shares or displays the image to another.

A class F felony in Wisconsin carries a maximum sentence of twelve years in prison and or a $25000 fine. A class C felony in the state carries a maximum sentence of 40 years and a $100000 fine or both.

A seventeen-year-old is an adult in Wisconsin

Teens above 17, accused of felony or criminal offenses, will face trial in adult court. In addition, the teen will face adult punishment in adult court, meaning sex offender registration and time behind bars.

What about repeat offenders?

For a first offense, instead of a conviction, the court may declare the teen delinquent. Once adjudicated delinquent, the teen may face trial in adult court for subsequent offences.

What if a teen commits a felony or federal crime?

Soliciting sexual conduct from a minor across state lines is an example of a federal crime. According to the Juvenile Delinquent Act, teens accused of soliciting a minor, or sexual exploitation of a child across state or international borders, may be transferred to adult court. The youngest age at which a child may be transferred to adult court in Wisconsin is 15.

Teens and adults convicted of the following crimes must register as sex offenders in Wisconsin.

  • Child pornography possession, distribution, and creation.
  • Forcing a child to view or listen to sexual activity
  • Exposing a child to harmful material
  • Soliciting a child for prostitution
  • Sexual exploitation of a child.
  • Use of an electronic device to aid a sex crime against a child

Wisconsin sexting laws and forcing a child to view or listen to sexual activity

Section 948.055, “Causing a child to view or listen to sexual activity,” says that forcing a child to view or listen to sexual activity is a class F felony. The statute reads in part, quote:

“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 to sexually arouse or gratify the actor or humiliate or degrade the child or individual.”

Subsection B of the statute says that the accused is guilty of a Class H felony if the victim is above 13. If the victim is below 13, the crime escalates into a Class F felony. A class H felony in Wisconsin is punishable by up to 6 years in state prison and a fine of up to $10000.

Wisconsin sexting laws and exposing a child to harmful material

Under 948.11. “harmful to children” refers to any media, digital or physical, that when taken as a whole, quote:

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:

1. Predominantly appeals to the prurient, shameful, or morbid interest of children

2. Is patently offensive to prevailing standards in the adult community concerning what is suitable for children

3. Lacks serious literary, artistic, political, scientific or educational value for children.”

Under the statute, it is unlawful to:

  • Display, rent, or in any way make harmful material available to a minor.

As mentioned, anyone above 17 is an adult in Wisconsin; consequently, under the statute, anyone above seventeen who communicates, verbally or digitally, a harmful narrative or description with a minor is guilty of a Class I felony. The statute applies whether the communication was in person or via an electronic device.

It is also worth noting that the statute works under the assumption that the accused knew or should have known that the individual the accused was communicating with was a child.

948.11. what to remember

  • An adult sending nudes to a minor is a violation of this statute.
  • The statute applies to face-to-face and digital/electronic communication.
  • Possession of harmful material with intent to distribute to a minor is a class A misdemeanor.
  • Exposing a minor to harmful material is a class I felony.

The statute provides one affirmative defense.  The accused had a valid reason to believe that the minor was above 18. However, this defense only applies if the child provided proof of identification such as a driver’s license, birth certificate, or other documents.

Wisconsin sexting laws and use of a computer to facilitate a child sex crime

Under 9548.075, using a computer or other device with intent to have sexual contact with a child is a class C felony. part of the statute reads, quote, 

“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.”

Remember, a single set of facts may lead to multiple charges. So, we recommend consulting with a defense attorney immediately.

References

Other West Virginia Laws

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