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Representations Depicting Nudity, § 942.09 – Element of “Reasonable Expectation of Privacy,” Construction

State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro


¶19      The phrase “reasonable expectation of privacy” is not defined in Wis. Stat. § 942.09, nor are the individual words. However, the words “expectation of privacy” have a common meaning that can be ascertained with reference to a standard dictionary.


21      If we apply the common meanings of “expectation” and “privacy” and the well-established meaning of the term “reasonable,” Wis. Stat. § 942.09(2)(a) requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others, and that assumption is a reasonable one under all the circumstances, meaning that it is an appropriate one under all the circumstances according to an objective standard. We conclude this is a reasonable construction of “reasonable expectation of privacy” because it employs the common and well-established meanings of the words.

The court goes on to reject on both policy grounds, ¶¶22-25, and also as a matter of legislative history, ¶¶26-33, Nelson’s argument that fourth amendment case law construction of “reasonable expectation of privacy” is relevant to this statutory phrasing.


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