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942.09 Representations depicting nudity.

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942.09942.09Representations depicting nudity.942.09(1)(1)In this section: 942.09(1)(a)(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. 942.09(1)(am)(am) "Nude or partially nude person" has the meaning given in s. 942.08 (1) (a). 942.09(1)(b)(b) "Nudity" has the meaning given in s. 948.11 (1) (d). 942.09(1)(c)(c) "Representation" means a photograph, exposed film, motion picture, videotape, other visual representation, or data that represents a visual image. 942.09(2)(2)942.09(2)(am)(am) Whoever does any of the following is guilty of a Class I felony: 942.09(2)(am)1.1. 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. 942.09(2)(am)2.2. 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. 942.09(2)(am)3.3. 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. 942.09(2)(bm)(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: 942.09(2)(bm)1.1. Capture and possess the representation or make and possess the reproduction depicting the child. 942.09(2)(bm)2.2. 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. 942.09(2)(cm)(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. 942.09(5)(5)942.09(5)(a)(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: 942.09(5)(a)1.1. 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. 942.09(5)(a)2.2. The person's parent, guardian, or legal custodian consents to the capture of the representation. 942.09(5)(b)(b) 942.09(5)(b)1.1. Whoever intentionally does any of the following is guilty of a Class A misdemeanor: 942.09(5)(b)1.a.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. 942.09(5)(b)1.b.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. 942.09(5)(b)2.2. 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: 942.09(5)(b)2.a.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. 942.09(5)(b)2.b.b. The person's parent, guardian, or legal custodian consents to the exhibition, distribution, transmission, or broadcast. 942.09 - ANNOT.History: 1995 a. 249; 2001 a. 16; 2001 a. 33 ss. 2 to 13; Stats. 2001 s. 942.09; 2001 a. 109; 2007 a. 118. 942.09 - ANNOT.Sub. (2) (a) requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others, and that assumption is a reasonable one under all the circumstances, according to an objective standard. State v. Nelson, 2006 WI App 124, 294 Wis. 2d 578, 718 N.W.2d 168, 05-2300. 942.09 - ANNOT.A "legitimate expectation of privacy" for purposes of a search or seizure under the 4th Amendment is not consistent with the context and purpose of this section. The 4th Amendment embodies a balance between society's interest in law enforcement and the privacy interest asserted by the individual that is not relevant to this section. Construing "reasonable expectation of privacy" according to its common meaning does not render the statute unconstitutionally vague and provides sufficient notice of the conduct prohibited under sub. (2) (a). State v. Nelson, 2006 WI App 124, 294 Wis. 2d 578, 718 N.W.2d 168, 05-2300. 942.09 - ANNOT.Nelson did not purport to provide a definition of reasonable expectation of privacy covering all circumstances. The question for purposes of the privacy element is not whether the nude person had a reasonable expectation that the defendant would view him or her nude at the time of the recording, but whether the nude person had a reasonable expectation, under the circumstances, that he or she would not be recorded in the nude. State v. Jahnke, 2009 WI App 4, 316 Wis. 2d 324, 762 N.W.2d 696, 07-2130.
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  • 942.09

    942.09 Representations depicting nudity.

    942.09(1)

    (1) In this section:

    942.09(1)(a)

    (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.

    942.09(1)(am)

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

    942.09(1)(b)

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

    942.09(1)(c)

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

    942.09(2)

    (2)

    942.09(2)(am)

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

    942.09(2)(am)1.

    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.

    942.09(2)(am)2.

    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.

    942.09(2)(am)3.

    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.

    942.09(2)(bm)

    (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:

    942.09(2)(bm)1.

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

    942.09(2)(bm)2.

    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.

    942.09(2)(cm)

    (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.

    942.09(5)

    (5)

    942.09(5)(a)

    (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:

    942.09(5)(a)1.

    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.

    942.09(5)(a)2.

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

    942.09(5)(b)

    (b)

    942.09(5)(b)1.

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

    942.09(5)(b)1.a.

    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.

    942.09(5)(b)1.b.

    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.

    942.09(5)(b)2.

    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:

    942.09(5)(b)2.a.

    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.

    942.09(5)(b)2.b.

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

    942.09 - ANNOT.

    History: 1995 a. 249; 2001 a. 16; 2001 a. 33 ss. 2 to 13; Stats. 2001 s. 942.09; 2001 a. 109; 2007 a. 118.

    942.09 - ANNOT.

    Sub. (2) (a) requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others, and that assumption is a reasonable one under all the circumstances, according to an objective standard. State v. Nelson, 2006 WI App 124, 294 Wis. 2d 578, 718 N.W.2d 168, 05-2300.

    942.09 - ANNOT.

    A "legitimate expectation of privacy" for purposes of a search or seizure under the 4th Amendment is not consistent with the context and purpose of this section. The 4th Amendment embodies a balance between society's interest in law enforcement and the privacy interest asserted by the individual that is not relevant to this section. Construing "reasonable expectation of privacy" according to its common meaning does not render the statute unconstitutionally vague and provides sufficient notice of the conduct prohibited under sub. (2) (a). State v. Nelson, 2006 WI App 124, 294 Wis. 2d 578, 718 N.W.2d 168, 05-2300.

    942.09 - ANNOT.

    Nelson did not purport to provide a definition of reasonable expectation of privacy covering all circumstances. The question for purposes of the privacy element is not whether the nude person had a reasonable expectation that the defendant would view him or her nude at the time of the recording, but whether the nude person had a reasonable expectation, under the circumstances, that he or she would not be recorded in the nude. State v. Jahnke, 2009 WI App 4, 316 Wis. 2d 324, 762 N.W.2d 696, 07-2130.

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