Is sending dick pics in Wisconsin illegal?

August 19th, 2022 by Benjamin Van Severen

Dick pics: Will I get in trouble for sending them?

Generally speaking, sending dick pics in Wisconsin is not a crime. A specific Wisconsin law criminalizes sending adult material via email in a very specific circumstance, but no law focuses specifically on traditional, text-based actions. In early 2022, lawmakers attempted to write a specific statute addressing the practice, but were unsuccessful. That unsuccessful attempt included forfeiture penalties and did not call for any specific criminal classification. Lawmakers attempted to make the pratice punishable by a fine – not jail, and certainly not prison. There’s no reason to believe that lawmakers will attempt to criminalize sending dick pics in the near future.

If you’re charged with any kind of criminal offense or forfeiture, contact Van Severen Law Office, S.C. immediately at (414) 270-0202. We offer free consultations to potential clients facing tickets and criminal charges throughout Wisconsin. We’d especially like to talk with you if you’re facing any charge related to sex crimes or sending lewd pictures.

Criminal charges for dick pics: Section 944.25 of the Wisconsin Statutes

There’s only one crime in Wisconsin that resembles sending dick pics. And while we recognize that traditionally this practice is done via cell phone, this criminal charge focuses on emails.

Section 944.25 of the Wisconsin Statutes indicates:

(1) In this section:

(a) “Electronic mail solicitation” means an electronic mail message, including any attached program or document, that is sent for the purpose of encouraging a person to purchase property, goods, or services.

(b) “Obscene material” has the meaning given in s. 944.21 (2) (c).

(c) “Sexually explicit conduct” has the meaning given in s. 948.01 (7).

(2) Whoever sends an unsolicited electronic mail solicitation to a person that contains obscene material or a depiction of sexually explicit conduct without including the words “ADULT ADVERTISEMENT” in the subject line of the electronic mail solicitation is guilty of a Class A misdemeanor.

As we mentioned in the introduction to this article, there’s one criminal offense that could apply to sending dick pics. This is that offense. But as you’ll quickly notice, this law was created to address spam emails, specifically those focused on sexual goods or services. In order to qualify, the message must be an email. And again, we recognize that traditionally sending dick pics is done via cell phone.

Importantly, an email sent containing adult content gets around this law very simply: by stating “ADULT ADVERTISEMENT” in the subject line of the email.

This law is the closest that Wisconsinites get to criminal exposure for sending dick pics. As we’ll discuss moving forward, all other offenses are civil forfeitures (fines) that don’t impact your criminal record or expose you to any kind of jail/prison penalty.

2021 Assembly Bill 868 – Wisconsin lawmakers attempt to address the practice

In early 2022, lawmakers attempted to create a new section within the Wisconsin Statutes – 944.27, with proposed title “sending unsolicited obscene or sexually explicit images.” State Senator Melissa Agard introduced the bill, which does not include any potential criminal penalties:

(2) Whoever knowingly sends an unsolicited image by electronic means, directed to another person, depicting a person engaging in an act of sexual intercourse or masturbation or depicting the exposed genitals or anus of any person is subject to the following:

(a) Except as provided in par. (b), a forfeiture not to exceed $250 for a first violation, and a forfeiture not to exceed $500 for any subsequent violation.

(b) If the person is under 18 years of age, a written warning for a first violation, and for any subsequent violation before the person is 18 years of age, a forfeiture not to exceed $250.

Agard indicated that the law was meant to combat “cyber flashing.” Importantly, this proposal never made it into law. And even if it had, a maximum fine of $500.00 doesn’t do much to deter would-be cyber flashers.

But, is it criminal harassment?

Harassment laws in Wisconsin require that the defendant engage in a “course of conduct.” One act, on its own, does not qualify as harassment. Therefore, in order to qualify as harassment, the offender would need to “cyber flash” more than once. Alternatively, the flashing incident could be one act in a broader course of conduct.

947.013(1m) of the Wisconsin Statutes indicates:

(1m) Whoever, with intent to harass or intimidate another person, does any of the following is subject to a Class B forfeiture:

(a) Strikes, shoves, kicks or otherwise subjects the person to physical contact or attempts or threatens to do the same.

(b) Engages in a course of conduct or repeatedly commits acts which harass or intimidate the person and which serve no legitimate purpose.

Harassment in Wisconsin is not a crime. There are a few exceptions:

Firstly, harassment is a Class A misdemeanor if it is accompanied by a credible threat to cause death or great bodily harm. It’s also a Class A misdemeanor if the defendant is subject to an injunction limiting his contact with the victim.
Secondly, harassment is a Class I felony if the defendant has a prior stalking conviction (within 7 years) with the same victim.
Harassment is a Class H felony if the defendant accesses an electronic file that contains the personal information of the victim, in order to facilitate sending a credible threat to cause death or great bodily harm.

The only way sending a dick pic becomes a criminal offense under the harassment statute is if there’s a broader course of conduct, and the defendant pairs the picture with some sort of threat to cause harm to the victim, or the defendant has a prior stalking conviction with the victim. Simply sending a dick pic, on its own, is not harassment and does not satisfy the requirements of this statute.

A woman receives a dick pic on her cell phone. — Wisconsin law does not specifically prohibit sending dick pics. That doesn’t mean you can’t be charged with any crime. Contact Van Severen Law Office, S.C. for help dealing with any criminal charge: (414) 270-0202.

Texas law: unlawful electronic transmission of sexually explicit visual material

Section 21.19 of the Texas Penal Code prohibits sending dick pics. Obviously this law does not apply to residents of Wisconsin, but this could be a glimpse into the future. The law indicates:

(b) A person commits an offense if the person knowingly transmits by electronic means visual material that:

(1) depicts:

(A) any person engaging in sexual conduct or with the person’s intimate parts exposed; or

(B) covered genitals of a male person that are in a discernibly turgid state; and

(2) is not sent at the request of or with the express consent of the recipient.

(c) An offense under this section is a Class C misdemeanor.

The punishment structure for misdemeanors in Texas is slightly different than that in Wisconsin. A Class C misdemeanor is a criminal conviction, but does not carry any potential for time in jail. The maximum penalty for this offense is $500.00. While this might sound lenient, it’s important to remember that any criminal conviction will impact the rest of your life. This especially applies to a sex offense with an offensive title. At the same time, even in Texas, the only state to criminalize sending dick pics, you still cannot be put in jail or prison for the offense.

Contact Van Severen Law Office, S.C. for representation: (414) 270-0202

While Wisconsin criminal law does not specifically outlaw cyber flashing, as social interactions, dating applications, and other social functions rely more on cell phones, the future of said laws is not clear. Eventually it is safe to say that not only will sending dick pics become illegal, but that the penalties will escalate from forfeitures to potential criminal penalties. Some states, such as Texas, already have criminal laws in place to address the practice.

If you’re facing any kind of criminal charge, contact us immediately at (414) 270-0202.