Wis JI-Criminal 1398B

Statutory Definition of the Crime

Section 942.09(3m)(a)2. of the Criminal Code of Wisconsin is violated by a person

who 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.

State’s Burden of Proof

Before you may find the defendant guilty of this offense, the State must prove by

evidence which satisfies you beyond a reasonable doubt that the following three elements

were present.

Elements of the Crime That the State Must Prove

1. The defendant (posted or published)1 (caused to be posted or published) a

depiction of a person.

“Post or publish” includes posting or publishing on a website on the Internet,

if the website may be viewed by the general public.2

2. The defendant knew that the depiction was a private representation.

3. The person who is depicted did not consent to the posting or publication of the

private representation.

Meaning of “Representation”

“Representation” means a photograph, exposed film, motion picture, videotape,

recording, other visual or audio representation, or data that represents a visual image or

audio recording.3

Meaning of “Did Not Consent”

“Did not consent” means that (name) did not freely agree to the posting or publishing

of the private representation.4

Meaning of “Private Representation”

“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.5

Meaning of “Nude or Partially Nude Person”

“Nude or partially nude person” means [any human being who has less than fully and

opaquely covered genitals, pubic area or buttocks] [any female human being who has less

than a fully opaque covering over any portion of a breast below the top of the nipple] [any

male human being with covered genitals in a discernibly turgid state].6

Jury’s Decision

If you are satisfied beyond a reasonable doubt that all three elements of this offense

have been proved, you should find the defendant guilty.

If you are not so satisfied, you must find the defendant not guilty.

ADD THE FOLLOWING IF THE OFFENSE WAS CHARGED AS A CLASS I

FELONY AND THERE IS EVIDENCE THAT THE VICTIM HAD NOT

ATTAINED THE AGE OF 18 YEARS AT THE TIME OF THE OFFENSE.7

If you find the defendant guilty, you must answer the following question:

Was (name of victim) under the age of 18 years at the time of the offense?

Before you may answer the question “yes,” you must be satisfied beyond a reasonable

doubt that the answer is “yes.”

If you are not so satisfied, you must answer the question “no.”