Wis JI-Criminal 2146C

Statutory Definition of the Crime

Possession of virtual child pornography, as defined in Section 948.125 of the Criminal

Code of Wisconsin, is committed by one who knowingly (receives) (distributes) (produces)

(possesses)1 or accesses with intent to view obscene material that he or she knows or

reasonably should have known contains a depiction of a purported child engaging in

sexually explicit conduct.

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 knowingly (received) (distributed) (produced) (possessed)2

(accessed with the intent to view) obscene material.

“Obscene material” means a photograph, film, motion picture, or digital or

computer−generated image or picture, whether made or produced by electronic,

mechanical, or other means, that satisfies all of the following:

• The average person, applying contemporary community standards, would

find appeals to the prurient interest if taken as a whole.

• Under contemporary community standards, describes or shows sexually

explicit conduct in a patently offensive way.

• Lacks serious literary, artistic, political, educational, or scientific value, if

taken as a whole.3

IF “ACCESSING WITH THE INTENT TO VIEW” OBSCENE MATERIAL IS

ALLEGED, ADD THE FOLLOWING:

[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.4

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.5]

2. The obscene material contained a depiction of a purported child engaging in

sexually explicit conduct.

“Depiction of a purported child” means a visual representation that appears to

depict an actual child but may or may not depict an actual child.6

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

contained a depiction of a purported child engaging in sexually explicit conduct.

Meaning of “Sexually Explicit Conduct”

“Sexually explicit conduct” means7 actual or simulated (sexual intercourse) (bestiality)

(masturbation) (sexual sadism or sexual masochistic abuse) (lewd exhibition of (name

intimate part)).8

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 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 D FELONY AND THERE IS EVIDENCE THAT THE

DEFENDANT WAS UNDER 18 YEARS OF AGE AT THE TIME OF

THE OFFENSE.9

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

Was the defendant under 18 years of age when the offense occurred?

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.”