Wis JI-Criminal 2146A

Statutory Definition of the Crime

Possession of child pornography, as defined in § 948.12(1m) of the Criminal Code of

Wisconsin, is committed by one who knowingly possesses1 or accesses in any way with

intent to view any undeveloped film, photographic negative, photograph, motion picture,

videotape, or other recording of a child engaged in sexually explicit conduct, knows or

reasonably should know that the recording contained depictions of sexually explicit

conduct, and knows or reasonably should know that the child depicted in the material has

not attained the age of 18 years.

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 knowingly (possessed a recording) (accessed a recording in any

way with intent to view it).2

[“Possessed” means that the defendant knowingly3 had actual physical control

of the recording.]4

ADD THE FOLLOWING PARAGRAPHS IN POSSESSION

CASES WHEN THEY ARE SUPPORTED BY THE

EVIDENCE:

[A recording is (also) in a person’s possession if it is in an area over which the

person has control and the person intends to exercise control over the recording.]

[It is not required that a person own a recording in order to possess it. What is

required is that the person exercise control over the recording.]

[Possession may be shared with another person. If a person exercises control

over a recording, the recording is in that person’s possession, even though another

person may also have similar control.]

“Recording” means a reproduction of an image or a sound or the storage of

data representing an image or a sound.5

ADD THE FOLLOWING PARAGRAPHS IN CASES OF

ACCESSING A RECORDING WITH THE INTENT TO VIEW

IT:

[Meaning of “Intent to View”

“Intent” means that the defendant acted with the mental purpose to view the

obscene material or was aware that (his) (her) conduct was practically certain to

result in viewing the obscene material.6

Deciding About Intent

You cannot look into a person’s mind to find intent. Intent must be found, if

found at all, from the defendant’s acts, words, and statements, if any, and from all

the facts and circumstances in this case bearing upon intent.7]

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

A child is a person who is under the age of 18 years.8

“Sexually explicit conduct” means9 actual or simulated [sexual intercourse]

[bestiality] [masturbation] [sexual sadism or sexual masochistic abuse] [lewd

exhibition of (name intimate part)].10

3. The defendant knew or reasonably should have known that the recording

contained depictions of a person engaged in actual or simulated .11

4. The defendant knew or reasonably should have known12 that the person [shown in

the recording] [depicted in the material] engaged in sexually explicit conduct was

under the age of 18 years.

Deciding About Knowledge

You cannot look into a person’s mind to find out knowledge. Knowledge must be

found, if found at all, from the defendant's acts, words, and statements, if any, and from all

the facts and circumstances in this case bearing upon knowledge.

Jury’s Decision

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

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

FELONY AND THERE IS EVIDENCE THAT THE DEFENDANT WAS 18

YEARS OF AGE OR OLDER AT THE TIME OF THE OFFENSE.13

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.”