COMPUTER CRIMES

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)

 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

The State must prove 4 elements:

1. That you intentionally used, attempted to use, or possessed with intent to use any personal identifying information of another
2. That you used that information without authorization from that person
3. That you represented to someone else that you were that person
4. That you used that information to obtain something of value, avoid civil or criminal prosecution, or harm the reputation of the other person

Identity theft crimes are becoming more and more commonplace. It is even possible for someone to be charged with this crime because someone else is stealing your identity to perpetuate the fraud. The defense in these kinds of cases must be extremely diligent and thorough in order to ensure that records are legitimate and not fraudulent.

Wisconsin penalties for Identity Theft:

• 3 years in prison