The State must prove 2 elements:
- That you possessed a “recording” (which includes undeveloped film, photographic negatives, photographs, motion pictures, videotapes, images on a harddrive or computer printouts)
- The recording showed a “child” engaged in “sexually explicit conduct”
In addition, the statute requires that the following elements be met:
- That you knew you possessed the materials
- That you know the “character and content” of the material
- That you “knew or reasonably should have known” that the person in the material was under 18.
There are many defenses to such a charge, particularly with regard to digital images because they are so easily manipulated that even experts are unable to determine if the images have been altered. For example, what appears to be a child could be an adult whose breasts have been reduced/eliminated, hips slimmed and facial features altered (which can all be done with commercially available software).
Another defense is that the image does not show “sexually explicit conduct.” Even in Wisconsin, “mere nudity” is not enough. There must be an unnatural focus on sexual regions and it must appeal to sexual tendencies. This is difficult to get past judges and juries who view any pictures of naked children as “explicit.”
Often, the defense of this charge hinges on the 4th Amendment to the United States Constitution questioning whether the search and seizure of the items in question was lawful. This is because the images are often contained on computers or found as hard copies in storage spaces.
Wisconsin penalties for Possession of Child Pornography:
- 15 months prison maximum
- 3 years mandatory minimum (unless the court finds the public will not be harmed)