Wisconsin Statutory Criminal Law

  1. Wis. Stat. § 942.09 – Revenge Porn

    1. Introduction

      In April 2014, Wisconsin passed a law criminalizing the dissemination of private images of a person without the person’s consent, whether or not the image was taken with the victim’s consent.

    2. Text of the Statute(s)

      Wis. Stat. § 942.09

      (1) In this section:

      (a) "Captures a representation" means takes a photograph, makes a motion picture, videotape, or other visual representation, or records or stores in any medium data that represents a visual image.

      (am) "Nude or partially nude person" has the meaning given in s. 942.08 (1) (a).

      (b) "Nudity" has the meaning given in s. 948.11 (1) (d).

      (c) "Representation" means a photograph, exposed film, motion picture, videotape, other visual representation, or data that represents a visual image.

      (2)

      (am) Whoever does any of the following is guilty of a Class I felony:

      1. Captures a representation that depicts nudity without the knowledge and consent of the person who is depicted nude while that person is nude in a circumstance in which he or she has a reasonable expectation of privacy, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the capture of the representation.

      2. Makes a reproduction of a representation that the person knows or has reason to know was captured in violation of subd. 1. and that depicts the nudity depicted in the representation captured in violation of subd. 1., if the person depicted nude in the reproduction did not consent to the making of the reproduction.

      3. Possesses, distributes, or exhibits a representation that was captured in violation of subd. 1. or a reproduction made in violation of subd. 2., if the person knows or has reason to know that the representation was captured in violation of subd. 1. or the reproduction was made in violation of subd. 2., and if the person who is depicted nude in the representation or reproduction did not consent to the possession, distribution, or exhibition.

      (bm) Notwithstanding par. (am), if the person depicted nude in a representation or reproduction is a child and the capture, possession, exhibition, or distribution of the representation, or making, possession, exhibition, or distribution of the reproduction, does not violate s. 948.05 or 948.12, a parent, guardian, or legal custodian of the child may do any of the following:

      1. Capture and possess the representation or make and possess the reproduction depicting the child.

      2. Distribute or exhibit a representation captured or possessed under subd. 1., or distribute or exhibit a reproduction made or possessed under subd. 1., if the distribution or exhibition is not for commercial purposes.

      (cm) This subsection does not apply to a person who receives a representation or reproduction depicting a child from a parent, guardian, or legal custodian of the child under par. (bm) 2., if the possession, exhibition, or distribution is not for commercial purposes.

      (5)

      (a) Whoever, while present in a locker room, intentionally captures a representation of a nude or partially nude person while the person is nude or partially nude in the locker room is guilty of a Class B misdemeanor. This paragraph does not apply if the person consents to the capture of the representation and one of the following applies:

      1. The person is, or the actor reasonably believes that the person is, 18 years of age or over when the person gives his or her consent.

      2. The person's parent, guardian, or legal custodian consents to the capture of the representation.

      (b)

      1. Whoever intentionally does any of the following is guilty of a Class A misdemeanor:

      a. Captures a representation of a nude or partially nude person while the actor is present in, and the person is nude or partially nude in, the locker room and exhibits or distributes the representation to another.

      b. Transmits or broadcasts an image of a nude or partially nude person from a locker room while the person is nude or partially nude in the locker room.

      2. This paragraph does not apply if the person consents to the exhibition or distribution of the representation or the transmission or broadcast of the image and one of the following applies:

      a. The person is, or the actor reasonably believes that the person is, 18 years of age or over when the person gives his or her consent.

      b. The person's parent, guardian, or legal custodian consents to the exhibition, distribution, transmission, or broadcast.

    3. Cases

      As of the time of publication (February 2016), no reported cases have analyzed Wisconsin’s revenge porn statute.  Press reports indicate that it was used almost immediately to charge a man who posted nude photos of his girlfriend on the internet (and bragged that she could not stop him because the governor had not yet signed the law—but he had). The defendant eventually settled to a charge of disorderly conduct, 4 days time served in jail, and payment of fees and costs.1 A report from August 2015 reports a sentence of six months was imposed on another man who posted nude photos of his ex-girlfriend on Facebook.2

    1. Vielmetti, Bruce, Man charged with revenge porn pleads to lesser charge, Milwaukee Journal-Sentinel (Apr. 29, 2015). 

    2. Treleven, Ed, Wisconsin man sentenced after posting 'revenge porn', Wisconsin State Journal (Aug. 11, 2015). 

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  2. Wis. Stat. § 947.01 – Disorderly Conduct

    1. Introduction

      Wisconsin’s disorderly conduct statute does not necessarily require disruptions or disturbances that implicate the public directly, and if a WMC victim is part of a group of victims targeted mailings and telephone calls, such conduct may violate Wisconsin’s disorderly conduct statute.

    2. Text of the Statute(s)

      Wis. Stat. § 947.01

      (1) Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.

      (2) Unless other facts and circumstances that indicate a criminal or malicious intent on the part of the person apply, a person is not in violation of, and may not be charged with a violation of, this section for loading, carrying, or going armed with a firearm, without regard to whether the firearm is loaded or is concealed or openly carried.

    3. Elements of a Claim

      (1) That the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar disorderly conduct and (2) that the defendant’s conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance.1

    4. Cases

      1. State v. Schwebke, 253 Wis. 2d 1 (2002)

        • Procedural Posture: Defendant appealed his conviction on six counts of disorderly conduct.

        • Law: Disorderly conduct

        • Facts: Defendant sent anonymous mailings containing newspaper clippings, records, and stenciled messages to four individuals. The messages contained non-violent messages, but described aspects of the individuals’ personal lives. The defendant appealed, arguing that the disorderly conduct statute did not apply to the mailing of private messages. Defendant argued that there must be some public element to the disruption or disturbance.

        • Outcome: The Wisconsin Supreme Court affirmed Defendant’s conviction and because the disorderly conduct statute does not necessarily require disruptions or disturbances that implicate the public directly. The statute encompasses conduct that tends to cause a disturbance or disruption that is personal or private in nature, as long as there exists the real possibility that the disturbance or disruption will spill over and disrupt the peace, order or safety of the surrounding community as well.

        • Special Notes: The disorderly conduct statute doesn’t punish conduct causing only personal annoyance to a person. A court will examine the circumstances in which the conduct occurred took place, such as the location, parties involved, and the manner of the conduct. Notably, the Supreme Court in Schwebke found that the conduct disrupted the community where the defendant appeared to observe every aspect of the victims’ lives, and caused friends and relatives to become concerned for the victims’ safety, or caused disruption in a victim’s workplace environment.

    1. State v. Schwebke, 253 Wis. 2d 1, 17 (2002). 

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  3. Wis. Stat. § 947.013 – Harassment

    1. Introduction

      A WMC victim who is the subject of a repeated course of conduct by a perpetrator who engages in the conduct with an intent to harass or intimidate the victim, or who is aware that the conduct was practically certain to harass the victim may bring criminal charges against the harasser.

    2. Text of the Statute(s)

      Wis Stat. § 947.013 is available here.

    3. Cases

      1. Washington Cnty. v. Wagner, 296 Wis. 2d 936 (Wis. Ct. App. 2006)

        • Procedural Posture: The defendant appealed his conviction in the circuit court. 

        • Law: Wis Stat. § 947.013

        • Facts: The victim was a thirteen-year-old boy who testified that he was in the driveway of his family’s residence when the defendant drove by on a public street and took a photo of the boy. The defendant and the victim’s family were engaged in a long-running neighborhood feud, and on prior occasions the defendant had taken photos of the family, although this was the first occasion he had taken a photo of the boy alone. 

        • Outcome: The appellate court reversed the defendant’s conviction because a single incident of the defendant taking a photo was not sufficient to establish a “repeated course of conduct.” 

        • Special Notes: A WMC victim seeking to bring criminal charges for harassment must describe more than one instance of harassing conduct.

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  4. Wis. Stat. § 939.645 – Hate Crimes

    1. Introduction

      Where a WMC victim is specifically targeted because of his or her race, color, religion, ancestry, nationality, gender, sexual orientation, or mental, physical or sensory handicaps, these laws may provide additional relief.

    2. Text of the Statute(s)

      Wis. Stat. § 939.645 is available here.

    3. Cases

      Research is ongoing.

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  5. Wis. Stat. § 968.31 – Eavesdropping

    1. Introduction

      A WMC victim whose personal photographs, video, or other media have been obtained through eavesdropping measure may be able to bring criminal charges for the interception and disclosure of wire or electronic communications.

    2. Text of the Statute(s)

      Wis. Stat. § 968.31 is available here.

    3. Cases

      1. State v. Turner, 356 Wis. 2d 759 (Wis. Ct. App. 2014)  

        • Procedural Posture: Defendant’s appeal from his conviction for repeated sexual assault of a child based on an argument that the circuit court erred by denying his motion to suppress warrantless police recordings of incriminating statements he made to the child.  

        • Law:  Wis. Stat. 968.27-.375. 

        • Facts:  Defendant’s fifteen-year-old daughter informed a high school guidance counselor that her father had been sexually assaulting her for several years. The daughter agreed to wear a wireless recording device for police to listen to her conversations with her father without the consent or knowledge of her mother or father. At trial, the circuit court denied defendant’s motion to suppress based on an argument that the daughter could not consent to the interception as a matter of law because she was a minor. The appellate court noted that when determining whether a minor has the capacity to consent to color-of-law surveillance, courts should consider the “totality of the circumstances to determine whether consent was voluntarily given.” Factors include the minor’s knowledge, education, intelligence, and maturity. 

        • Outcome: The appellate court affirmed the circuit court’s denial of defendant’s motion to suppress and defendant’s conviction because even a minor can voluntarily consent to wearing a wiretap. 

        • Special Notes:  Although this case involved a minor’s ability to consent to color-of-law surveillance, the consent principles in this case may be relevant to one-party consent in cases involving victims of online harassment. For example, even if the victim is a minor, it’s possible a victim can consent to being electronically recorded.

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  6. Wis. Stat. § 940.32 – Stalking

    1. Introduction

      A WMC victim who is stalked or cyberstalked may press charges for stalking under Wisconsin Statute § 940.32. The statute requires that the defendant engaged in intentional, repetitive conduct directed at a specific person and that the conduct was of a type that would objectively induce fear of personal harm in the victim or for a member of the victim’s immediate family. The defendant must have had knowledge, actual or imputed, that fear would result from the conduct.

    2. Text of the Statute(s)

      Wis. Stat. § 940.32 is available here.

    3. Cases

      1. State v. Ruesch, 214 Wis. 2d 548 (Wis. Ct. App. 1997)

        • Procedural Posture: Defendant appealed his conviction in the circuit court

        • Law: Stalking

        • Facts: Defendant was infatuated with the victim and began leaving notes and flowers in her car, and making repeated telephone calls to her. Defendant began to drive by her home, and insinuated that her husband could die and her remarriage would be possible. The defendant argued that because he used public streets in his stalking of S, the State was required to prove that his conduct was not constitutionally protected under an exception to the stalking statute for constitutionally protected conduct.

        • Outcome: The appellate court affirmed the conviction because the State was not required to prove that the defendant’s conduct was not constitutionally protected. In essence, a Defendant may be convicted of stalking even if he is using public streets.

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  8. Wis. Stat. § 942.09 - Non-consensual capture of representations of nudity

    1. Introduction

      Wisconsin criminalizes the capturing of a representation that depicts nudity without the knowledge or consent of the person who is depicted nude in circumstances where that person had a reasonable expectation of privacy. This statute has been successfully enforced against those who take “upskirt” photos or capture videos or pictures of nude persons without their consent.

    2. Text of the Statute(s)

      (1) In this section:

      (a) “Captures a representation” means takes a photograph, makes a motion picture, videotape, or other visual representation, or records or stores in any medium data that represents a visual image.

      (am) “Nude or partially nude person” has the meaning given in s. 942.08(1)(a).

      (b) “Nudity” has the meaning given in s. 948.11(1)(d).

      (bg) “Post or publish” includes posting or publishing on a Web site on the Internet, if the Web site may be viewed by the general public.

      (bn) “Private representation” means a representation depicting a nude or partially nude person or depicting a person engaging in sexually explicit conduct that is intended by the person depicted in the representation to be captured, viewed, or possessed only by the person who, with the consent of the person depicted, captured the representation or to whom the person depicted directly and intentionally gave possession of the representation.

      (c) “Representation” means a photograph, exposed film, motion picture, videotape, other visual representation, or data that represents a visual image.

      (d) “Sexually explicit conduct” has the meaning given in s. 948.01(7).

      (2)(am) Whoever does any of the following is guilty of a Class I felony:

      1. Captures a representation that depicts nudity without the knowledge and consent of the person who is depicted nude while that person is nude in a circumstance in which he or she has a reasonable expectation of privacy, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the capture of the representation.

      2. Makes a reproduction of a representation that the person knows or has reason to know was captured in violation of subd. 1. and that depicts the nudity depicted in the representation captured in violation of subd. 1., if the person depicted nude in the reproduction did not consent to the making of the reproduction.

      3. Possesses, distributes, or exhibits a representation that was captured in violation of subd. 1. or a reproduction made in violation of subd. 2., if the person knows or has reason to know that the representation was captured in violation of subd. 1. or the reproduction was made in violation of subd. 2., and if the person who is depicted nude in the representation or reproduction did not consent to the possession, distribution, or exhibition.

      (bm) Notwithstanding par. (am), if the person depicted nude in a representation or reproduction is a child and the capture, possession, exhibition, or distribution of the representation, or making, possession, exhibition, or distribution of the reproduction, does not violate s. 948.05 or 948.12, a parent, guardian, or legal custodian of the child may do any of the following:

      1. Capture and possess the representation or make and possess the reproduction depicting the child.

      2. Distribute or exhibit a representation captured or possessed under subd. 1., or distribute or exhibit a reproduction made or possessed under subd. 1., if the distribution or exhibition is not for commercial purposes.

      (cm)This subsection does not apply to a person who receives a representation or reproduction depicting a child from a parent, guardian, or legal custodian of the child under par. (bm)2., if the possession, exhibition, or distribution is not for commercial purposes.

      (3m)(a) Whoever does any of the following is guilty of a Class A misdemeanor:

      1. Posts, publishes, or causes to be posted or published, a private representation if the actor knows that the person depicted does not consent to the posting or publication of the private representation.

      2. Posts, publishes, or causes to be posted or published, a depiction of a person that he or she knows is a private representation, without the consent of the person depicted.

      (b) This subsection does not apply to any of the following:

      1. The parent, guardian, or legal custodian of the person depicted if the private representation does not violate s. 948.05 or 948.12 and the posting or publication is not for commercial purposes.

      2. A law enforcement officer or agent acting in his or her official capacity in connection with the investigation or prosecution of a crime.

      3. A person who posts or publishes a private representation that is newsworthy or of public importance.

      4. A provider of electronic communication services that provides Internet access service to customers.

      (5)(a) Whoever, while present in a locker room, intentionally captures a representation of a nude or partially nude person while the person is nude or partially nude in the locker room is guilty of a Class B misdemeanor. This paragraph does not apply if the person consents to the capture of the representation and one of the following applies:

      1. The person is, or the actor reasonably believes that the person is, 18 years of age or over when the person gives his or her consent.

      2. The person's parent, guardian, or legal custodian consents to the capture of the representation.

      (b)1. Whoever intentionally does any of the following is guilty of a Class A misdemeanor:

      a. Captures a representation of a nude or partially nude person while the actor is present in, and the person is nude or partially nude in, the locker room and exhibits or distributes the representation to another.

      b. Transmits or broadcasts an image of a nude or partially nude person from a locker room while the person is nude or partially nude in the locker room.

      2. This paragraph does not apply if the person consents to the exhibition or distribution of the representation or the transmission or broadcast of the image and one of the following applies:

      a. The person is, or the actor reasonably believes that the person is, 18 years of age or over when the person gives his or her consent.

      b. The person's parent, guardian, or legal custodian consents to the exhibition, distribution, transmission, or broadcast.

    3. Cases

      1. State v. Schmucker, 362 Wis. 2d 541 (Wis. Ct. App. 2015) (unpublished) 

        • Procedural Posture: Defendant appealed his “upskirting” conviction in circuit court

        • Law: Non-consensual capture of representations depicting nudity

        • Facts:  The victim was fully-dressed in a grocery store and the defendant bent over and took a picture up her skirt by placing his cell phone between her legs. The defendant was charged and convicted for an attempt to capture nudity. The victim did not consent to the defendant’s actions. On appeal, defendant argued that the statute requires that the person be nude or partially nude and because the woman was clothed at the time defendant took the photograph, he could not be found guilty of the attempted crime. Additionally, the defendant argued that a woman does not have a reasonable expectation of privacy in not being photographed under her skirt while in the grocery store. 

        • Outcome: The appellate court rejected both arguments and affirmed defendant’s conviction because a defendant may be held guilty even if a factual impossibility prevents him from committing the crime. A woman has a reasonable expectation of privacy regarding surreptitious photographs taken of the private area underneath her skirt in a public space.

      2. State v. Adams, 361 Wis. 2d 766 (Wis. Ct. App. 2015) 

        • Procedural Posture: Defendant appealed his conviction of capturing a representation that depicts nudity without the knowledge or consent of the person who is depicted nude. 

        • Law: non-consensual capture of representations depicting nudity

        • Facts: Plaintiff recorded his sexual activity with a prostitute without her knowledge or consent through a laptop computer that was on a desk or dresser. Defendant argued that the woman did not have a reasonable expectation of privacy while nude in the hotel room with him. Further, the defendant argued that because the statute criminalizes the invasion of privacy of nude persons when the “offenders have no legitimate reason” for doing so, he did not commit a crime where he contended he needed the videotape to defend himself against a potential false accusation of abuse or appearance of involvement in a drug overdose.

        • Outcome: The appellate court rejected both arguments by the defendant and affirmed defendant’s conviction, because permission to be viewed in the nude does not mean permission to be recorded in the nude. Additionally, it found that there was no “legitimate reason” exception to the “reasonable expectation of privacy” prong of the statute, and that recording someone nude in order to protect against possible adverse scenarios is not a legitimate reason or defense. In dicta, the court also noted that the fact that the laptop recording the victim was in view of the victim did not constitute implicit knowledge or consent. 

        • Special Notes: Adams confirms that a WMC victim’s consent to sexual activity does not serve as a defense to a non-consensual taking of nude photographs or videos, and further, that there is no “legitimate reason” exception to a reasonable expectation of privacy. The court’s dicta also suggests that a recording device need not be completely obscured in order for the victim to lack knowledge or consent.

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  9. Wis. Stat. § 942.08(3) - “Upskirting”

    1. Introduction

      In November of 2015, Wisconsin’s governor signed a bill making it a felony for an individual to use any device to intentionally view, broadcast, or record under the outer clothing of an individual of that individual’s genitals, pubic area, breast, or buttocks, including areas covered by undergarments, without the individual’s consent. 

    2. Text of the Statute(s)

      Whoever knowingly installs or uses any device, instrument, mechanism, or contrivance to intentionally view, broadcast, or record under the outer clothing of an individual that individual's genitals, pubic area, breast, or buttocks, including genitals, pubic area, breasts, or buttocks that are covered by undergarments, or to intentionally view, broadcast, or record a body part of an individual that is not otherwise visible, without that individual's consent, is guilty of a Class I felony.

    3. Cases

      As of the time of publication (February 2016), no cases have been brought under Wisconsin’s upskirting statute.

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