Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB731 Compare Versions

Only one version of the bill is available at this time.

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4	4	2023 ASSEMBLY BILL 731
5	5	December 6, 2023 - Introduced by Representatives SNODGRASS, SHELTON, J.
6	6	ANDERSON, CONLEY, CONSIDINE, DRAKE, EMERSON, JOERS, MADISON, OHNSTAD,
7	7	PALMERI, RATCLIFF, SHANKLAND, SINICKI and STUBBS, cosponsored by Senators
8	8	AGARD, ROYS, HESSELBEIN, L. JOHNSON, LARSON, PFAFF, SMITH and TAYLOR.
9	9	Referred to Committee on Criminal Justice and Public Safety.
10	10	*AUTHORS SUBJECT TO CHANGE*
11	11	AN ACT to create 895.437 and 944.27 of the statutes; relating to: prohibiting
12	12	sending unsolicited obscene or sexually explicit images by electronic means,
13	13	establishing a private civil cause of action for sending unsolicited obscene or
14	14	sexually explicit images by electronic means, and providing a penalty.
15	15	Analysis by the Legislative Reference Bureau
16	16	This bill establishes a penalty for knowingly sending an unsolicited obscene or
17	17	sexually explicit image by electronic means, specifically any image depicting a
18	18	person engaging in an act of sexual intercourse or masturbation or depicting the
19	19	exposed genitals or anus of any person. Under the bill, a person who violates this
20	20	prohibition is subject to a forfeiture not to exceed $250 for a first violation, and a
21	21	forfeiture not to exceed $500 for any subsequent violation. If the person is under 18
22	22	years of age, however, the person is subject to a written warning for a first violation,
23	23	and for any subsequent violation before the person is 18 years of age, a forfeiture not
24	24	to exceed $250.
25	25	The bill also establishes a private cause of action against a person who
26	26	knowingly sends by electronic means an image depicting a person engaging in an act
27	27	of sexual intercourse or masturbation or depicting the exposed genitals or anus of
28	28	any person that the person who sends the image knows or reasonably should know
29	29	is unsolicited.
30	30	Neither the prohibition resulting in a forfeiture nor the private civil action
31	31	established under the bill applies to 1) an Internet service provider, mobile data
32	32	provider, or operator of an online or mobile application, to the extent that the entity
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38	38	ASSEMBLY BILL 731
39	39	is transmitting, routing, or providing connections for electronic communications
40	40	initiated by or at the direction of another person; 2) any service that transmits
41	41	images or audiovisual works, including an on-demand, subscription, or
42	42	advertising-supported service; or 3) a health care provider transmitting an image
43	43	for a legitimate medical purpose.
44	44	The people of the state of Wisconsin, represented in senate and assembly, do
45	45	enact as follows:
46	46	SECTION 1. 895.437 of the statutes is created to read:
47	47	895.437 Sending unsolicited obscene or sexually explicit images;
48	48	action for. (1) In this section:
49	49	(a) “Image” includes a moving visual image.
50	50	(b) “Sexual intercourse” has the meaning given in s. 944.27 (1) (b).
51	51	(c) “Unsolicited” has the meaning given in s. 944.27 (1) (c).
52	52	(2) A person has a civil cause of action against another person who knowingly
53	53	sends by electronic means an image depicting a person engaging in an act of sexual
54	54	intercourse or masturbation or depicting the exposed genitals or anus of any person
55	55	that the person who sends the image knows or reasonably should know is unsolicited.
56	56	(3) (a) A plaintiff who suffers harm as a result of receiving an image in violation
57	57	of sub. (2) and prevails in an action under this section may recover economic and
58	58	noneconomic damages proximately caused by the transmittal of the image, including
59	59	damages for emotional distress.
60	60	(b) A plaintiff who suffers harm as a result of receiving an image, the
61	61	transmittal of which had been expressly forbidden by the plaintiff, in violation of sub.
62	62	(2), and prevails in an action under this section may recover any of the following:
63	63	1. Economic and noneconomic damages proximately caused by the sending of
64	64	the image, including damages for emotional distress.
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86	86	SECTION 1
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88	88	2. Upon request of the plaintiff at any time before the final judgment is
89	89	rendered, in lieu of those damages specified in subd. 1., an award of statutory
90	90	damages in a sum of not less than $1,500 but not more than $30,000.
91	91	3. Punitive damages.
92	92	4. Reasonable attorney's fees and costs.
93	93	5. Any other available relief, including injunctive relief.
94	94	(c) The remedies provided by this section are cumulative and may not be
95	95	construed as restricting a remedy that is available under any other law.
96	96	(d) This section does not apply to any of the following:
97	97	1. An Internet service provider, mobile data provider, or operator of an online
98	98	or mobile application, to the extent that the entity is transmitting, routing, or
99	99	providing connections for electronic communications initiated by or at the direction
100	100	of another person.
101	101	2. Any service that transmits images or audiovisual works, including an
102	102	on-demand, subscription, or advertising-supported service.
103	103	3. A health care provider transmitting an image for a legitimate medical
104	104	purpose.
105	105	SECTION 2. 944.27 of the statutes is created to read:
106	106	944.27 Sending unsolicited obscene or sexually explicit images. (1) In
107	107	this section:
108	108	(a) “Image” includes a moving visual image.
109	109	(b) “Sexual intercourse” means vulvar penetration as well as cunnilingus,
110	110	fellatio, or anal intercourse between persons or any other intrusion, however slight,
111	111	of any part of a person's body or of any object into the genital or anal opening of
112	112	another person.
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139	139	SECTION 2 ASSEMBLY BILL 731
140	140	(c) “Unsolicited” means that the recipient has not requested the image, has not
141	141	consented to its transmittal, or has expressly forbidden its transmittal.
142	142	(2) Whoever knowingly sends an unsolicited image by electronic means,
143	143	directed to another person, depicting a person engaging in an act of sexual
144	144	intercourse or masturbation or depicting the exposed genitals or anus of any person
145	145	is subject to the following:
146	146	(a) Except as provided in par. (b), a forfeiture not to exceed $250 for a first
147	147	violation, and a forfeiture not to exceed $500 for any subsequent violation.
148	148	(b) If the person is under 18 years of age, a written warning for a first violation,
149	149	and for any subsequent violation before the person is 18 years of age, a forfeiture not
150	150	to exceed $250.
151	151	(3) This section does not apply to any of the following:
152	152	(a) An Internet service provider, mobile data provider, or operator of an online
153	153	or mobile application, to the extent that the entity is transmitting, routing, or
154	154	providing connections for electronic communications initiated by or at the direction
155	155	of another person.
156	156	(b) Any service that transmits images or audiovisual works, including an
157	157	on-demand, subscription, or advertising-supported service.
158	158	(c) A health care provider transmitting an image for a legitimate medical
159	159	purpose.
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