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Possession of Child Pornography, § 948.12(1m) – Elements – Depiction of “Real” Children Necessary

State v. Jason K. Van Buren, 2008 WI App 26, PFR filed 1/23/08
For Van Buren: Waring R. Fincke

Issue/Holding: Possession of child pornography, § 948.12(1m), requires depiction of real, as opposed to “virtual,” children:

¶6        … Wisconsin Stat. § 948.12(1m) (2005-06) [1] criminalizes the knowing possession of any “photograph … of a child engaging in sexually explicit conduct.” To be convicted under this statute, a person (1) must know that he or she possesses the photograph, (2) must know the character and content of the sexually explicit conduct depicted, and (3) must know (or reasonably should know) “that the child engaged in sexually explicit conduct has not attained the age of 18 years.” Id.¶7        Van Buren states that the “statutory framework says absolutely nothing about actual or real, as opposed to computer generated or virtual, children. It does not address whether the State has to prove beyond a reasonable doubt that the person depicted in the material really exists or is actually under the age of 18.” These contentions are off the mark. The issue in Free Speech Coalition arose because the statutes there explicitly purported to restrict images of “non-real” children, i.e., images that “appear[ ] to be” or are “described” as images of children. See Free Speech Coalition, 535 U.S. at 241-42. But the Wisconsin statute speaks only of a “child,” and there is nothing to suggest that the statutory term “child” includes a “non-real” child. The statutes contain thousands upon thousands of nouns, very few of which are preceded by the word “real”—because “real” is implied in the general understanding of most nouns.

¶8        Admittedly, the situation may be somewhat different when one is discussing depictions of things; for example, one might say that the film Jurassic Park “depicts dinosaurs,” even though no real dinosaurs were used in the making of the film. But Wis. Stat. § 948.12(1m)(c) specifies that to be convicted under the statute, the person possessing the pornography must know or have reason to know “that the child engaged in sexually explicit conduct has not attained the age of 18 years.” This element does not speak of depictions at all, but rather of a “child [who] has not attained the age of 18 years.” This confirms that the plain language of § 948.12(1m) forbids only depictions of real children engaged in sexually explicit activity. [2]

Expert testimony on the issue is unnecessary:

¶12      We find the rationale of the Rodriguez-Pacheco majority far more convincing. We can explain our view on the issue no better than the First Circuit did:

In [ United States v. Nolan, 818 F.2d 1015 (1st Cir. 1987)], this circuit rejected a per se rule that the government must produce expert testimony in addition to the images themselves, in order to prove beyond a reasonable doubt that the images depicted are of real children.… The defendant in Nolan argued that “the prosecution failed to prove that the pictures were not composite representations or otherwise faked or doctored, or … computer-generated” or even “fabricated using photographs of nude children taken from legitimate sources.” Nolan held that the mere possibility, unsupported by evidence, that the images could have been produced by use of technology and not using real children was not sufficient to reject a lower court’s ruling founded on reasonable inferences derived from experience and common sense.

Rodriguez-Pacheco, 475 F.3d at 439 (citations omitted).

¶14      In this case, the jury was handed pictures that look, for all the world, like photographs of children engaged in sexually explicit conduct. The jury by its verdict drew the inference that the pictures were photographs of children engaged in sexually explicit conduct. Though Van Buren urges that one could also infer that the images were computer-generated, the task of an appellate court is not to search for inferences inconsistent with guilt. It is to accept the inferences drawn by the trier of fact “within the bounds of reason.” The jury concluded that the images here are just what they appear to be, and by no stretch of the imagination could we call that conclusion “incredible as a matter of law.”

The court leaves open (fn. 2) the statute’s coverage of “‘morphing’; i.e., innocent pictures of real children altered so that the children appear to be engaged in sexual activity.”


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