2023 Wisconsin Statutes & Annotations
Chapter 973 - Sentencing.
973.042 - Child pornography surcharge.
973.042 Child pornography surcharge.
(1) In this section, “image" includes a video recording, a visual representation, a positive or negative image on exposed film, and data representing a visual image.
(2) If a court imposes a sentence or places a person on probation for a crime under s. 948.05 or 948.12 and the person was at least 18 years of age when the crime was committed, the court shall impose a child pornography surcharge of $500 for each image or each copy of an image associated with the crime. The court shall determine the number of images or copies of images associated with the crime by a preponderance of the evidence and without a jury.
(4) After determining the amount due, the clerk of court shall collect and transmit the amount to the county treasurer under s. 59.40 (2) (m). The county treasurer shall then make payment to the secretary of administration under s. 59.25 (3) (f) 2.
(5) The secretary of administration shall credit the surcharge to the appropriation account under s. 20.455 (5) (gj).
(6) If an inmate in a state prison or a person sentenced to a state prison has not paid the child pornography surcharge under this section, the department shall assess and collect the amount owed from the inmate's wages or other moneys. Any amount collected under this subsection shall be transmitted to the secretary of administration.
History: 2005 a. 433; 2013 a. 20.
The child pornography surcharge under sub. (2) is not punitive. Under the intent-effects test, the primary function of the child pornography surcharge statute is not punitive nor is the child pornography surcharge punitive in effect. The surcharge is linked to funding of investigations of sexual exploitation of children and possession of child pornography and grants to eligible public agencies or nonprofit organizations that provide counseling services to victims of sexual assault. Therefore, the circuit court in this case did not need to inform the defendant of the child pornography surcharge during the plea colloquy. State v. Schmidt, 2021 WI 65, 397 Wis. 2d 758, 960 N.W.2d 888, 20-0616.
The child pornography surcharge under sub. (2) applies to every image of child pornography that forms the basis of a charge of sexual exploitation of a child or possession of child pornography, regardless of whether those images form the basis of either a convicted charge or a read-in charge, so long as those images of child pornography are connected to and brought into relation with the convicted individual's offense of sexual exploitation of a child or possession of child pornography. A circuit court must impose the child pornography surcharge for those images. State v. Schmidt, 2021 WI 65, 397 Wis. 2d 758, 960 N.W.2d 888, 20-0616.
