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“Capturing a representation” under § 948.14 doesn’t cover cutting pictures from magazines or newspapers

State v. Albert J. Chagnon, 2015 WI App 66; case activity (including briefs)

Under § 948.14, no registered sex offender may intentionally “capture a representation” of a minor without consent of the minor’s parent or guardian. The phrase “captures a representation” is defined in § 942.09(1)(a) to mean “takes a photograph, makes a motion picture, videotape, or other visual representation, or records or stores in any medium data that represents a visual image.” The court of appeals concludes the phrase “captures a representation” cannot reasonably be construed to apply to Chagnon’s act of cutting pictures of minors from magazines and newspapers, pasting them into a notebook, and adorning the pictures with graphic sexual comments.

The parties dispute two parts of the definition of “captures a representation” under § 942.09(1)(a). First, they dispute whether Chagnon’s conduct in creating the notebook amounts to him “mak[ing] a … visual representation.” Second, they dispute whether Chagnon’s conduct of pasting the images into the notebook constitutes “stor[ing] in any medium data that represents a visual image.” The court concludes the plain language of the statute resolves the two disputes in Chagnon’s favor.

First, creating the notebook using existing images means Chagnon didn’t “make[] a … visual representation”:

¶14     The State argues that Chagnon made visual representations of the girls by cutting their images out of larger photographs, thereby removing them from their original context, and then isolating each cropped image on a page in the small notebook and adding a “new visual component to them—his graphic sexual comments.” According to the State, like artists that use existing images to create photomontages, Chagnon created new images. That is, he created new visual representations of the girls. We disagree.

¶15     We first observe that the language in the definition is clearly directed toward the visual image of a person. Putting aside the “stores” language we address next, in defining “captures a representation” the legislature says the following: “takes a photograph, makes a motion picture, videotape or other visual representation, or records … data that represents a visual image.” Id. The plain meaning of this language is that it refers to a visual representation of a person. It does not address the context in which that image appears.

¶16     This leads us to our conclusion that Chagnon did not make visual representations of the girls. The photographic images are those Chagnon found in publications. Putting existing images into a sexual context is not the same as making the images. We agree that Chagnon created something new and that Chagnon misused the photographs. But Chagnon did not, under any common definition of the term, “make” new visual representation of the girls.

Second, the statute’s reference to “storing … data” doesn’t cover saving images that have already been made:

¶23     …[U]nder the State’s view, the word “stores” is a reference to mere storage, regardless how an image was created, and “data” refers to all information and, thus, includes all images—digital, hardcopy, or otherwise. Thus, under the State’s analysis, “capture a representation” includes an activity distinct from making a representation, namely, storing a representation that has previously been made. ….

¶24     The problem with this broad interpretation is that it has no apparent limit. So far as we can tell, under the State’s reading of the “stores” language, the storage of any magazines or newspapers that happen to contain photographs of children is prohibited when the person storing those publications is a sex offender. This means that Chagnon would have violated Wis. Stat. § 948.14(2)(a) if he had done nothing more with the publications he received than stack them in his room. There is nothing in the State’s explanation of the “stores … data” language that requires proof that Chagnon actually did anything with the original images except store them in some manner….

Because § 948.14 doesn’t cover Chagnon’s acts, the charges against him under that statute must be dismissed.

The court buttresses its reading of § 942.09(1)(a) as not covering the mere possession of visual images by noting that § 942.09 has separate provisions for “capturing,” reproducing, and possessing, distributing or exhibiting representations of nude persons, § 942.09(2)(am)1., 2., and 3.; this demonstrates legislative intent to distinguish between “capturing” and merely “possessing” an image, a distinction that would be rendered superfluous by the state’s reading of the word “stores” in § 942.09(1)(a). (¶¶26-27). This distinction, along with the history of the changes made to § 942.09, also convinces the court that the phrase “stores in any medium data that represents a visual images” refers to the creation of images by digital means, because storing the data is an inherent part of producing (or “making”) a digital image. (¶¶28-31). Finally, the court relies on the LRB analysis of the bill that created § 948.14 as proof the statute was intended to prohibit creation, not mere possession, of images. (¶¶32-33).

This decision is unlikely to be the final word on the topic. Apart from the likelihood the state will petition for review, the court invites the legislature to consider the issue raised:

¶11     …. No doubt Chagnon’s behavior in creating and maintaining his notebook, with its sexual captions and commentary about the very young girls depicted, is disturbing to say the least. And, it might be that the legislature could prohibit a person in Chagnon’s status from creating or possessing such a notebook. However, the question here is whether the legislature did cover Chagnon’s conduct when it enacted Wis. Stat. § 948.14(2)(a). As we now explain, the legislature did not. We urge the legislature to re-examine this statute to ascertain whether or not it accomplished what it intends. ….

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