WJI is providing summaries of justice-related laws enacted during the 2019-20 state legislative session.
2019 Act 16 – Creates a definition related to child pornography.
948.01 (1t) “Lewd exhibition of intimate parts” means the display of less than fully and opaquely covered intimate parts of a person who is posed as a sex object or in a way that places an unnatural or unusual focus on the intimate parts."
The law originated as SB 68. The companion Assembly bill was AB 71. It was signed by Gov. Tony Evers on July 10, 2019.
State Sen. Andre Jacque – Predators are using limited definitions of what is a sexually explicit video or image of children as a loophole, as present child pornography statues only apply when the child is engaged in a sexual act. Investigators are now very commonly seeing predators taking images of nearly naked children in see-through clothing that are suggestively posed and inappropriately sexualized and intended for sexual gratification in order to get around charges for possession of child pornography....
Finally, a few committee members expressed concern that sexts or innocent, 'baby in the bathtub' photos may be prosecuted as a result of enactment of SB 68. While those concerns are well-founded, we would like take the opportunity to reiterate and emphasize that sexts and 'baby in the bathtub' photos may be subject to child pornography charges under current law. The bill...(does) not affect the prosecutorial discretion district attorneys currently enjoy.
ACLU of Wisconsin – This bill is unnecessary because possession and distribution of child pornography is already illegal. Under 948.12, it is illegal for a person to knowingly: (1m) possesses, or accesses in any way with the intent to view any visual representation of a child engaging in sexually explicit conduct. "Sexually explicit conduct" is specifically defined by statute in 948.01 (7)....
We have seen children in other states prosecuted under the current child pornography definition when minors take pictures of themselves with their cell phones and share them with each other. This bill would compound those problems further by increasing the universe of images people are prohibited from "possessing or accessing," and could affect the lives of countless minors who are foolishly sending one another images that fall within this overly broad definition. The way in which young people use social media like Facebook, Snapchat, or Instagram make them easy venues to inadvertently snare them in the criminal justice system....
Child pornography and obscenity are unprotected and rightfully so; however, this bill would criminalize speech that is neither pornographic nor obscene. Under the so-called Miller test developed in the 1973 case Miller v. California, three elements must be satisfied for a work to be deemed obscene and therefore unprotected under the First Amendment: (i) the average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to prurient interest; (ii) the work must depict or describe, in a patently offensive way, sexual conduct or excretory functions as specifically defined by applicable state law; and (iii) the work, taken as a whole, must lack serious literary, artistic, political, or scientific value. This bill would, on its face, criminalize publications that do not fit this definition, as it would include publications that (i) are not patently offensive, (ii) do not depict sexual conduct, and (iii) do not lack serious literary, artistic, political, or scientific value.
The City of Milwaukee and the Wisconsin Chiefs of Police Association Inc. registered in support of the bill.
The main authors of SB 68 were Jacque (R-DePere) and Lena Taylor (D-Milwaukee).
Its two main co-sponsors were Representatives Ron Tusler (R-Harrison) and David Crowley (D-Milwaukee).
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