A charge decided by numbers and by knowledge
Few charges move as fast or carry as much as this one. A search warrant is served, devices are seized, and a criminal complaint follows that can list one count or dozens. Each count is a Class D felony with a mandatory minimum prison term, a $500 surcharge for every image, and sex offender registration. The person charged often learns all of this at the initial appearance, in a public courtroom, with no lawyer beside them.
We defend people charged under Wis. Stat. § 948.12 in Racine County Circuit Court at 730 Wisconsin Avenue and Kenosha County Circuit Court at 912 56th Street, from our offices in Racine and Kenosha. Our founding partner, Patrick K. Cafferty, has defended Wisconsin felony cases since 1994. The work in these cases is technical: the elements, the forensic evidence, the count structure and the sentencing statutes, and it starts before the first court date.
- The offense, § 948.12(1m). Possessing, or accessing in any way with the intent to view, any photograph, film, video or other recording of a child engaged in sexually explicit conduct, with the knowledge the statute requires. Exhibiting or playing such a recording is a separate offense under § 948.12(2m).
- Classification: Class D felony, § 948.12(3)(a). Class I if the person was under 18 when the offense occurred, § 948.12(3)(b).
- Maximum per count: 25 years and $100,000 for a Class D felony, § 939.50(3)(d).
- Mandatory minimum: at least 3 years of initial confinement, § 939.617(1), with one narrow exception for a defendant no more than 48 months older than the child depicted, § 939.617(2)(b).
- Counts: each image can be charged separately, State v. Multaler, 2002 WI 35.
- Surcharge: $500 per image or copy, § 973.042(2).
- Registration: a “sex offense” under § 301.45(1d)(b); two or more convictions, even in one complaint, mean lifetime registration, § 301.45(5)(b)1.
- Lifetime supervision: available to the court for a “serious sex offense,” which includes § 948.12, under § 939.615.
What the State has to prove
Section 948.12(1m) is built around knowledge. The State must prove, beyond a reasonable doubt, that the person:
- knew he or she possessed or accessed the material, § 948.12(1m)(a);
- knew or reasonably should have known the material contained depictions of sexually explicit conduct, § 948.12(1m)(b); and
- knew or reasonably should have known the child depicted had not attained the age of 18, § 948.12(1m)(c).
“Sexually explicit conduct” is a defined term. Section 948.01(7) limits it to actual or simulated intercourse, bestiality, masturbation, sexual sadism or masochistic abuse, and lewd exhibition of intimate parts.
The appellate courts have given these words specific meanings, and the defense starts with them:
- “Reasonably should know” is less than actual knowledge but more than the civil negligence standard. State v. Schaefer, 2003 WI App 164.
- Viewing can be possession. A person who purposely pulls up and views images online, knowing what they contain, possesses them even if nothing is saved to a hard drive. State v. Mercer, 2010 WI App 47.
- The evidence of knowing possession is usually forensic. In State v. Lindgren, 2004 WI App 159, the court found knowing possession from repeated site visits, enlarging thumbnails, repeated access to images and saving one to a personal folder. The same kind of data is what the defense examines.
- The statute reaches depictions of real children. State v. Van Buren, 2008 WI App 26. Images that only appear to depict a child are charged under a different statute, § 948.125, discussed below.
- The charge rests on what the image is and how it was produced, not where or how it was stored. State v. A.H., 211 Wis. 2d 561 (Ct. App. 1997).
The sentencing statutes that drive these cases
Most of the exposure in a § 948.12 case is set by statutes outside § 948.12 itself.
The mandatory minimum. Section 939.617(1) requires a bifurcated sentence with at least 3 years of initial confinement in prison. The only exception, in § 939.617(2)(b), applies when the defendant is no more than 48 months older than the child who engaged in the sexually explicit conduct, and even then only if the court finds on the record that the community’s interests will be served and the public will not be harmed. The Court of Appeals enforced the minimum as written in State v. Holcomb, 2016 WI App 70, and State v. Brott, 2023 WI App 45.
The count structure. Because each image can be its own count under Multaler, the charging decision, the number of counts in any plea agreement, and the number of images the court attributes at sentencing are separate fights, and each one matters.
The surcharge. Section 973.042(2) requires $500 for each image or copy of an image associated with the crime, for a person who was at least 18. The court decides the number by a preponderance of the evidence, without a jury.
Registration. A § 948.12 conviction requires registration under § 301.45. One conviction generally means 15 years after discharge, § 301.45(5)(a). Two or more convictions mean registration for life, § 301.45(5)(b)1., and the statute expressly counts convictions in the same proceeding, on the same date, or in the same complaint.
Lifetime supervision. Section 948.12 is a “serious sex offense” under § 939.615(1)(b)1. If notice concerning lifetime supervision was given under § 973.125, the court may place the person on lifetime supervision when it determines that is necessary to protect the public, § 939.615(2)(a).
Firearms. Any felony conviction makes possessing a firearm a Class G felony under § 941.29(1m)(a).
Related charges and how they differ
The statute charged determines the exposure, and complaints in these cases often include more than one.
- Sexual exploitation of a child, § 948.05. Producing, recording, distributing, selling or possessing with intent to distribute. A Class C felony under § 948.05(2p)(a), up to 40 years, with a 5-year mandatory minimum under § 939.617(1).
- Virtual child pornography, § 948.125. Created by 2023 Wisconsin Act 224. It covers obscene material containing a “depiction of a purported child,” defined as a visual representation that appears to depict an actual child but may or may not, and its definition of obscene material expressly includes a “digital or computer-generated image,” which reaches AI-generated images. A Class D felony, Class I if the person was under 18, and subject to the same 3-year minimum under § 939.617(1).
- Use of a computer to facilitate a child sex crime, § 948.075. A Class C felony with a 5-year minimum under § 939.617(1). See our sex with a minor defense page.
- Federal charges, 18 U.S.C. § 2252 and § 2252A (federal law, not Wisconsin). The U.S. Department of Justice states that federal jurisdiction almost always applies when the internet is used, and that a person can be prosecuted under state law in addition to, or instead of, federal law. See our federal defense page.
When the accused is under 18
Section 948.12 has no exception for teenagers. A person under 18 who possesses an image of another minor, including an image the other minor sent, can be charged. The difference is the classification: a Class I felony under § 948.12(3)(b), up to 3 years 6 months and $10,000 under § 939.50(3)(i), and the mandatory minimum in § 939.617 does not apply, § 939.617(3). The surcharge in § 973.042(2) applies only to a person who was at least 18. See our juvenile defense page.
From the search warrant to the preliminary hearing
The investigation. Most cases are built from devices: phones, computers, external drives and cloud accounts, seized under a warrant or handed over by consent. What the forensic examination actually shows, and how the warrant was obtained and executed, are where many cases are decided. Anything said to detectives before a lawyer is involved becomes part of the complaint.
The initial appearance. A court commissioner reads the complaint, sets bail and imposes conditions of release. In these cases the State routinely asks for conditions restricting internet-capable devices and contact with minors. Those conditions take effect immediately, and a violation can be charged as bail jumping.
The preliminary hearing. Under § 970.03(2), it must begin within 10 days of the initial appearance if the person is in custody with bail set over $500, or within 20 days if the person has been released, unless the parties stipulate or the court extends it for cause.
The time limit. Section 948.12 is not among the offenses § 939.74(2) extends, so the general felony limit in § 939.74(1) applies: 6 years from the offense.
How we approach the defense
- Read the complaint against the elements. Each count has to stand on its own: possession or intentional access, knowledge of the content, and knowledge of age, under § 948.12(1m)(a) to (c).
- Examine the search. The warrant, the affidavit, the scope of the search and any consent. Evidence obtained unlawfully can be suppressed.
- Examine the forensics. Which device, which user account, which dates, whether files were opened, saved, enlarged or never accessed at all. Under Lindgren and Mercer this is the evidence of knowing possession, and it is examined by experts, not taken from the report.
- Address the count structure. Under Multaler the number of counts, and under § 301.45(5)(b)1. the number of convictions, decide the sentence floor and whether registration is for 15 years or for life.
- Check the statute charged. Whether the conduct is § 948.12, § 948.125 or § 948.05 changes the class, the minimum and the defense.
- Prepare for sentencing from day one. The § 939.617(2)(b) exception, the § 973.042 image count and the § 939.615 supervision question each have to be built into the case long before a sentencing date.
Call before the first court date
These cases are handled confidentially. Call (262) 632-5000, answered 24 hours a day, or contact Cafferty, Scheidegger & Johnson for a free consultation at 840 Lake Avenue in Racine or 7001 30th Avenue in Kenosha. If detectives have asked to talk to you, or a warrant has been served and you have not been charged, call before you speak to anyone. Spanish-speaking clients can read this page in Spanish and speak with attorney Juan S. Ramirez directly.
Related practice areas
- Sexual assault defense
- Sex with a minor and child sexual assault defense
- Federal criminal defense
- Juvenile defense
- Class D felonies in Wisconsin
Sources:
- Wisconsin State Legislature: § 948.12, Possession of child pornography
- Wisconsin State Legislature: § 948.01, Definitions, including “sexually explicit conduct” at (7)
- Wisconsin State Legislature: § 939.617, Minimum sentence for certain child sex offenses
- Wisconsin State Legislature: § 939.50, Classification of felonies
- Wisconsin State Legislature: § 973.042, Child pornography surcharge
- Wisconsin State Legislature: § 301.45, Sex offender registration
- Wisconsin State Legislature: § 939.615, Lifetime supervision of serious sex offenders
- Wisconsin State Legislature: § 948.05, Sexual exploitation of a child
- Wisconsin State Legislature: § 948.125, Possession of virtual child pornography
- Wisconsin State Legislature: § 970.03, Preliminary examination
- Wisconsin State Legislature: § 939.74, Time limitations on prosecutions
- U.S. Department of Justice, Criminal Division: Citizen’s Guide to U.S. Federal Law on Child Pornography (federal law)
