Wis JI-Criminal 2121A

[USE THIS INSTRUCTION IF THERE IS EVIDENCE OF THE DEFENSE

UNDER § 948.05(3).] 1

Statutory Definition of the Crime

Sexual exploitation of a child, as defined in § 948.05(1)(b) of the Criminal Code of

Wisconsin, is committed by one who records 2 or displays in any way a child engaged in

sexually explicit conduct with knowledge of the character and content of the sexually

explicit conduct involving the child. 3

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 four elements

were present.

Elements of the Crime That the State Must Prove

1. The defendant (recorded) (displayed in any way) (name of child). 4

“Record” means to reproduce an image or a sound or to store data

representing an image or a sound. 5

[Consent by (name of child) is not a defense.] 6

2. (Name of child) had not attained the age of 18 years.

3. The defendant (recorded) (displayed in any way) (name of child) while (name of

child) was engaged in sexually explicit conduct.

“Sexually explicit conduct” means 7 actual or simulated (sexual intercourse)

(bestiality) (masturbation) (sexual sadism or sexual masochistic abuse) (lewd

exhibition of (name intimate parts)). 8

4. The defendant knew that the person in the (recording) (display) was engaged in

sexually explicit conduct. 9

Consider Whether the Defense is Proved

Wisconsin law provides that it is a defense to this crime if the defendant had

reasonable cause to believe that (name of child) had attained the age of 18 years.

The burden is on the defendant to prove by evidence which satisfies you to a

reasonable certainty by the greater weight of the credible evidence that this defense is

established. 10

“By the greater weight of the evidence” is meant evidence which, when weighed

against that opposed to it, has more convincing power. “Credible evidence” is evidence

which in the light of reason and common sense is worthy of belief.

Jury’s Decision

If you are satisfied to a reasonable certainty by the greater weight of the credible

evidence that this defense is proved, you must find the defendant not guilty.

If you are not satisfied to a reasonable certainty by the greater weight of the credible

evidence that this defense is proved and you are satisfied beyond a reasonable doubt that

all four elements of this offense have been proved, you should find the defendant guilty.

If you are not satisfied beyond a reasonable doubt that all the elements of this offense

have been proved, you must find the defendant not guilty. 11

ADD THE FOLLOWING IF THE OFFENSE WAS CHARGED AS A CLASS

C FELONY AND THERE IS EVIDENCE THAT THE DEFENDANT WAS 18

YEARS OF AGE OR OLDER AT THE TIME OF THE OFFENSE. 12

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

“Had the defendant attained 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.”