Section 948.01. Definitions.

  In this chapter, the following words and phrases have the designated meanings unless the context of a specific section manifestly requires a different construction:

(1)  “Child" means a person who has not attained the age of 18 years, except that for purposes of prosecuting a person who is alleged to have violated a state or federal criminal law, “child" does not include a person who has attained the age of 17 years.

(1d)  “Exhibit," with respect to a recording of an image that is not viewable in its recorded form, means to convert the recording of the image into a form in which the image may be viewed.

(1g)  “Joint legal custody" has the meaning given in s. 767.001 (1s) .

(1r)  “Legal custody" has the meaning given in s. 767.001 (2) .

(2)  “Mental harm" means substantial harm to a child's psychological or intellectual functioning which may be evidenced by a substantial degree of certain characteristics of the child including, but not limited to, anxiety, depression, withdrawal or outward aggressive behavior. “Mental harm" may be demonstrated by a substantial and observable change in behavior, emotional response or cognition that is not within the normal range for the child's age and stage of development.

(3)  “Person responsible for the child's welfare" includes the child's parent; stepparent; guardian; foster parent; an employee of a public or private residential home, institution, or agency; other person legally responsible for the child's welfare in a residential setting; or a person employed by one legally responsible for the child's welfare to exercise temporary control or care for the child.

(3m)  “Physical placement" has the meaning given in s. 767.001 (5) .

(3r)  “Recording" includes the creation of a reproduction of an image or a sound or the storage of data representing an image or a sound.

(4)  “Sadomasochistic abuse" means the infliction of force, pain or violence upon a person for the purpose of sexual arousal or gratification.

(5)  “Sexual contact" means any of the following:

(a) Any of the following types of intentional touching, whether direct or through clothing, if that intentional touching is either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant:

1. Intentional touching by the defendant or, upon the defendant's instruction, by another person, by the use of any body part or object, of the complainant's intimate parts.

2. Intentional touching by the complainant, by the use of any body part or object, of the defendant's intimate parts or, if done upon the defendant's instructions, the intimate parts of another person.

(b) Intentional penile ejaculation of ejaculate or intentional emission of urine or feces by the defendant or, upon the defendant's instruction, by another person upon any part of the body clothed or unclothed of the complainant if that ejaculation or emission is either for the purpose of sexually degrading or sexually humiliating the complainant or for the purpose of sexually arousing or gratifying the defendant.

(c) For the purpose of sexually degrading or humiliating the complainant or sexually arousing or gratifying the defendant, intentionally causing the complainant to ejaculate or emit urine or feces on any part of the defendant's body, whether clothed or unclothed.

(6)  “Sexual intercourse" means vulvar penetration as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening either by the defendant or upon the defendant's instruction. The emission of semen is not required.

(7)  “Sexually explicit conduct" means actual or simulated:

(a) Sexual intercourse, meaning vulvar penetration as well as cunnilingus, fellatio or anal intercourse between persons or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal opening either by a person or upon the person's instruction. The emission of semen is not required;

(b) Bestiality;

(c) Masturbation;

(d) Sexual sadism or sexual masochistic abuse including, but not limited to, flagellation, torture or bondage; or

(e) Lewd exhibition of intimate parts.

Instructions were proper that told the jury that “lewd" under sub. (7) (e), when applied to photographs, is not mere nudity but requires the display of the genital area and sexual suggestiveness as determined by the jury in the use of common sense. State v. Petrone, 161 Wis. 2d 530 , 468 N.W.2d 676 (1991).

When a defendant allows sexual contact initiated by a child, the defendant is guilty of intentional touching as defined in sub. (5). State v. Traylor, 170 Wis. 2d 393 , 489 N.W.2d 626 (Ct. App. 1992).

The definition of “parent" in sub. (3) is all-inclusive; a defendant whose paternity was admitted but had never been adjudged was a “parent." State v. Evans, 171 Wis. 2d 471 , 492 N.W.2d 141 (1992).

A live-in boyfriend can be a person responsible for the welfare of a child if he was used by the child's legal guardian as a caretaker for the child. State v. Sostre, 198 Wis. 2d 409 , 542 N.W.2d 774 (1996), 94-0778 .

The phrase “by the defendant or upon the defendant's instruction" in sub. (6) modifies the entire list of acts and establishes that for intercourse to occur the defendant either had to perform one of the actions on the victim or instruct the victim to perform one of the actions on himself or herself. State v. Olson, 2000 WI App 158 , 238 Wis. 2d 74 , 616 N.W.2d 144 , 99-2851 .

A person under 18 years of age employed by his or her parent to care for a child for whom the parent was legally responsible can be a person responsible for the welfare of the child under sub. (3). State v. Hughes, 2005 WI App 155 , 285 Wis. 2d 388 , 702 N.W.2d 87 , 04-2122 .

Petrone established guidelines for defining “lewd" and “sexually explicit." It did not require that a child be “unclothed" in order for a picture to be lewd. Instead, the visible display of the child's pubic area and posing the child as a sex object with an unnatural or unusual focus on the child's genitalia should inform the common sense determination by the trier of fact regarding the pornographic nature of the image. It follows that when a child's pubic area is visibly displayed, the lack of a full opaque covering is a proper consideration that should inform the common sense determination by the trier of fact. State v. Lala, 2009 WI App 137 , 321 Wis. 2d 292 , 773 N.W.2d 218 , 08-2893 .