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WHAT YOU SHOULD KNOW ABOUT "SEXTING" AND WISCONSIN'S OBSCENITY LAWS

Admin • February 14, 2018
Attorney — Eau Claire, WI — Cohen Law Offices
Although laws have sometimes had trouble keeping up with advances in technology since the advent of the Industrial Revolution, today's technological innovations have made it harder than ever for lawmakers to devise laws that criminalize dangerous conduct without impacting innocent users.

For example, many teens have learned the hard way that "sexting" photographs of themselves (or forwarding a photograph sent or posted by someone else) can constitute child pornography if the person featured in the photograph is younger than 18. When is "sexting" a crime for Wisconsin residents? Read on to learn more about how sending sexually explicit photos, videos, and text messages could lead to trouble under Wisconsin's criminal code.

HOW WISCONSIN CRIMINALIZES OBSCENITY

Section 944 of Wisconsin's criminal code sets forth a number of obscenity statutes, criminalizing everything from "lewd and lascivious behavior" in public to the dissemination of explicit text messages and social media posts.

Sending obscene or "sexually explicit" electronic messages (which includes email, private messages, text messages, and in-app messages) that are intended to encourage the purchase of goods or services is classified as a Class A misdemeanor unless the message clearly includes the words "ADULT ADVERTISEMENT" in the subject line.

Meanwhile, sending sexually explicit text messages, emails, or instant messages that aren't intended to sell a product or shill for an adult website is a crime if the messages depict anyone under the age of 18 or are sent to (or, in some cases, viewed by) anyone under the age of 18.

WHEN ARE TEXT MESSAGES OBSCENE?

When proving the elements of an obscenity crime, the foundational issues (who, when, and where) are often much easier to establish than whether the message was legally considered "obscene." For example, showing that a text message was sent from one number and received by another requires only the introduction of phone records into evidence.

But what constitutes obscenity can often be in the eye of the beholder, and while there are certain factors that can render a message or photograph objectively obscene, in many cases, this is a closer call.

For example, a parent's photograph of a nude child in a bathtub is unlikely to be viewed through the lens of "sexually explicit" when seen on a social media page; on the other hand, the same photograph posted on an adult website may be rendered obscene just by the surrounding site content.

Generally speaking, a message sender runs the risk of being charged with an obscenity-related crime if the message is unsolicited, depicts the sender's private areas (clothed or unclothed), depicts partial or total nudity of another individual's private areas, contains sexually-explicit or sexually-charged language, or is sent to someone who is under age 18. 

YOUR OPTIONS IF CHARGED WITH AN OBSCENITY CRIME

If you've been charged with the dissemination of an obscene text message or email under Wisconsin law, it's important to consult an attorney as soon as possible.

Although some types of obscenity may be charged as misdemeanors and are unlikely to result in serious monetary penalties or jail time, sending these types of messages to someone under 18 (or, in some cases, receiving such messages from someone under 18) could be a far more serious crime.

Felony obscenity charges can lead to lengthy jail sentences or even require you to register as a sex offender, limiting where you can live, where you can work, and the type of work you can do. 

A criminal defense attorney can work with you to evaluate your case, gather evidence, and help you determine the options available to you, giving you the information you need to know how to proceed.
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