Possession of Child Pornography

The State must prove 2 elements:

1. That you possessed a "recording" (which includes undeveloped film, photographic negatives, photographs, motion pictures, videotapes, images on a harddrive or computer printouts)

2. The recording showed a "child" engaged in "sexually explicit conduct"

In addition, the statute requires that the following elements be met:

1. That you knew you possessed the materials

2. That you know the "character and content" of the material

3. That you "knew or reasonably should have known" that the person in the material was under 18.

There are many defenses to such a charge, particularly with regard to digital images because they are so easily manipulated that even experts are unable to determine if the images have been altered. For example, what appears to be a child could be an adult whose breasts have been reduced/eliminated, hips slimmed and facial features altered (which can all be done with commercially available software).

Another defense is that the image does not show "sexually explicit conduct." Even in Wisconsin, "mere nudity" is not enough. There must be an unnatural focus on sexual regions and it must appeal to sexual tendencies. This is difficult to get past judges and juries who view any pictures of naked children as "explicit."

Often, the defense of this charge hinges on the 4th Amendment to the United States Constitution questioning whether the search and seizure of the items in question was lawful. This is because the images are often contained on computers or found as hard copies in storage spaces.

> Wisconsin penalties for Possession of Child Pornography:

• 15 months prison maximum

• 3 years mandatory minimum (unless the court finds the public will not be harmed)

Use of a Computer to Facilitate a Child Sex Crime

The state must prove 4 elements:

1. That you used a computer to communicate with an "individual"

2. That you "believed or had reason to believe" that the individual was under 16

3. That you used the computer with the intent to have sexual contact/intercourse with the individual

4. That you did "an act" in addition to using the computer to "carry out the intent"

In spite of the widespread media coverage of undercover detectives posing as 14 year old girls, and the existence of a TV show dedicated to the same "sting" operations, this offense continues to be committed. The increasing focus of law enforcement on sex crimes in general has led to a rash of these cases in Wisconsin and nationwide. A defense to this charge can be as simple as denying any intention to have sexual contact as the "intention" element can be difficult to prove. Of course, the nature of the "chat" is usually at least somewhat sexual in nature and can be used against you. The stakes have risen dramatically, however, with the passage in 2005 of a 5 year mandatory minimum sentence upon conviction.

> Wisconsin penalties for Use of a Computer to Facilitate a Child Sex Crime:

• 25 years prison maximum

• 5 years prison mandatory minimum

Sexual Assault of a Child

The State must prove 2 elements:

1. That you had a sexual contact, and/or intercourse with the victim

2. That the victim was under the age of 13 years (First Degree Sexual Assault), or 16 years (Second Degree Sexual Assault of a Child), at the time of the alleged sexual contact/intercourse

Sexual contact is the touching of any part of your body, or any object you control, with any of the other persons "intimate parts" (breasts, penis, anus, buttocks or vagina). The State must show that this was done with the intent to gain sexual satisfaction or to humiliate the victim. The touching may be over or under clothing.

You cannot use the defense that you did not know the victim's age, or that you mistakenly judged the victim's age, thinking him/her to be older than he/she really was. Also, stating that an underage victim consented to have sexual contact/intercourse with you is not a viable defense as minors are considered legally incapable to give consent.

The charge changes to Second Degree Sexual Assault of a child if the child was 14-16 years old. From ages 16-18, it is a Fourth Degree Sexual Assault (a misdemeanor). A caregiver can also be charged with a felony for the failure to prevent such assaults if the caregiver knew that the abuse was occurring.

Sexual Assault of a Child is a highly sensitive offense that is falsely charged in many instances. Bathing, or playful contact such as a pat on the behind, can be misinterpreted as sexual contact. In bitter divorce cases, one parent might make powerful assault accusations to try to discredit the other parent and gain custody and placement rights.

Making such cases even more difficult is the fact that false allegations can become true in the child's mind with repeated interviews by parents, police, prosecutors, social workers, and treatment professionals, which tend to reaffirm even false accusations to the point where the child actually believes that some incident occurred. This troubling phenomenon has sent many innocent people to prison.

> Wisconsin penalties for Sexual Assault of a Child:

• First degree: Mandatory Life Sentence

• Second degree: 40 years prison (Maximum)
• Fourth degree: 9 months jail (Maximum)
• Caregiver failure to prevent assaults: 7.5 years prison (Maximum)

Sexual Assault (first, second and third degree)

The State must prove 3 elements:

1. You had "sexual contact/intercourse" with the victim

2. The victim did not consent to the sexual contact/intercourse

3. You caused "great bodily harm" to the victim

In proving that the victim did not "consent," the State must show that the victim did not freely agree to have sexual contact with you. This does not require that the victim offered physical resistance. The person only needs to say "no" or claim that they said "no." In defending these cases, the actions of both parties come into play. For example, a woman claiming rape who was drinking heavily, and acting very sexually toward you, and then voluntarily went with you, will not be easily believed on the matter of consent. The jury could conclude that under the circumstances she did indeed consent. The degree of harm is also a variable in sexual assault cases. What one juror finds to be a "great bodily harm" may be viewed by another as just "bodily harm" or even no harm.

In Second Degree Sexual Assault, the State must prove 3 elements:

1. You had "sexual contact/intercourse" with the victim

2. The victim did not consent to the sexual contact/intercourse

3. You had sexual contact/intercourse with the victim by "use or threat of force or violence"

To prove Third Degree Sexual Assault, the State must prove the same first two elements as Second Degree, but the "force" or "harm" element is eliminated. Third Degree Sexual Assault may be charged if there is alleged contact or intercourse without expressed consent if a person is passed out because of alcohol or drugs or is asleep. One way to defend against this charge is to require that the State and the victim proved beyond reasonable doubt that the contact/intercourse occurred.

> Wisconsin penalty for Sexual Assault:

• First degree sexual assault: 40 years (Maximum)

• Second degree sexual assault: 25 years (Maximum)
• Third degree sexual assault: 5 years (Maximum)

Child Enticement

The state must prove 3 elements:

1. That you "caused" the child to go into a car, building, room or other "secluded place"

2. That you "intended" to have "sexual contact" with the child

3. That the child was under 18 years of age

This involves the "luring" of a child into a "secluded place" with the intent to have sexual contact, cause them harm or give them drugs. This charge is commonly brought along with one for sexual assault of a child. In such a case, the child is almost certainly going to go into some room, car or building where the conduct takes place. It is significant to note that this can be charged as an "attempt" but carries the same penalty as the completed act (actually getting the child in the place). Normally, the penalty for an attempted crime is half of the completed act. This presents an opportunity for prosecutors since many actions by a person can be interpreted as "attempting" to "cause" a child to go into a certain place, to which evil intent can be ascribed.

> Wisconsin penalty for Child Enticement:

• 15 years prison