2021 Wisconsin Statutes & Annotations
Chapter 939 - Crimes — general provisions.
939.617 - Minimum sentence for certain child sex offenses.
939.617 Minimum sentence for certain child sex offenses.
(1) Except as provided in subs. (2) and (3), if a person is convicted of a violation of s. 948.05, 948.075, or 948.12, the court shall impose a bifurcated sentence under s. 973.01. The term of confinement in prison portion of the bifurcated sentence shall be at least 5 years for violations of s. 948.05 or 948.075 and 3 years for violations of s. 948.12. Otherwise the penalties for the crime apply, subject to any applicable penalty enhancement.
(2) If the court finds that the best interests of the community will be served and the public will not be harmed and if the court places its reasons on the record, the court may impose a sentence that is less than the sentence required under sub. (1) or may place the person on probation under any of the following circumstances:
(a) If the person is convicted of a violation of s. 948.05, the person is no more than 48 months older than the child who is the victim of the violation.
(b) If the person is convicted of a violation of s. 948.12, the person is no more than 48 months older than the child who engaged in the sexually explicit conduct.
(3) This section does not apply if the offender was under 18 years of age when the violation occurred.
History: 2005 a. 433; 2011 a.272; 2013 a. 165 s. 115.
The legislature had reasonable and practical grounds for making a conviction for using a computer to facilitate a child sex crime under s. 948.075 (1r) subject to a mandatory minimum sentence. Thus, there was a rational basis for the penalty enhancer in sub. (1) and sub. (1) was not unconstitutional as applied to the defendant. State v. Heidke, 2016 WI App 55, 370 Wis. 2d 771, 883 N.W.2d 162, 15-1420.
This section has a plain and unambiguous meaning. When faced with a conviction for possessing child pornography, sub. (1) requires the court to impose a bifurcated sentence with at least 3 years' initial confinement. Sub. (2) allows the court to depart from this minimum and impose less initial confinement or probation only if the defendant is not more than 48 months older than the child-victim. State v. Holcomb, 2016 WI App 70, 371 Wis. 2d 647, 886 N.W.2d 100, 15-0996.
