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Non-consensual posting of UW volleyball locker room images could be a felony under state law

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The Badgers unveiled their national championship banner on Friday before hosting No. 24 Marquette.

UW-Madison officials were saying little Thursday about their investigation into the online circulation of "private photos and videos" of Badgers volleyball players, which the athletic department said Wednesday included images taken inside the team's locker room.

Under state law, anyone who posts online locker room images of the players without the consent of the people in them could be charged with a felony, and the person who took the images could face up to nine months in jail, if the images were taken without consent.

The athletic department said Wednesday that the images came from the phone of a team member and were never intended to be seen publicly but have somehow been shared on the internet.

The athletic department posted Wednesday on Twitter that its "top priority is supporting our student-athletes and we are providing them with the appropriate services and resources."

But a spokesperson declined Thursday to detail what kind of support is being made available, citing the ongoing investigation and protection of the players' privacy.

UW-Madison police are investigating the situation for "multiple crimes," according to UW's statement. The volleyball players involved are not being accused of wrongdoing and aren't facing sanctions by the team.

Police spokesperson Marc Lovicott said he couldn't put a timeframe on the investigation because of complexities involving the identification of those involved in potential internet crimes.

A provision in state law specific to locker rooms makes it a felony punishable by up to 3½ years of combined prison and extended supervision to exhibit, distribute, transmit or broadcast images of nude or partially nude persons in a locker room without consent. If people in the images are younger than 18, it's a six-year felony.

Taking nude or partially nude photos in locker rooms without consent is a misdemeanor punishable by up to nine months in jail or a 3½-year felony if the subjects are minors, according to the law.

The provision, added to a law on the books since 1995, was enacted in 2008 as camera-equipped cellphones were becoming popular, though most people at the time were still using relatively unsophisticated phones that pre-dated smartphones, which were just being introduced.

While the law as written might make it appear as though the same person must take the locker room images and distribute them in order to be charged with a felony, the definition of "captures a representation" in the law is expansive, said former Dane County Assistant District Attorney Awais Khaleel, who as a prosecutor handled criminal cases involving the posting of nude images.

"It's not just taking," Khaleel said, "it's storing." If an image goes from a phone used to take it to another location where it's stored, he said, "that falls under the definition of 'capture.'"

The locker room provision is part of a Wisconsin law dealing with the publication and posting of images depicting nudity without the consent of the persons in the images. In addition to the locker room provision, the 1995 law has been through several other modifications over time, including one enacted in 2016 that took aim at "revenge porn" -- the posting on the internet of intimate images intended to harass or embarrass a former romantic partner. 

The statute makes it a 3½-year felony to, without consent of the persons depicted, capture "an intimate representation" of persons under circumstances in which there is a reasonable expectation of privacy. 

An "intimate representation" of a person is defined as an image of a nude or partially nude person, a private area of a person's body, a person who is using the toilet or a person having sex. 

The law also makes it a felony to reproduce, possess or distribute that image. It is a misdemeanor, punishable by up to nine months in jail, to publish that image or post it on the internet. 

Wisconsin also has a law concerning the invasion of privacy, but it generally deals with non-consensual surveillance and other actions taken to look into places where a person has the right to privacy and where a person "may reasonably be expected to be nude or partially nude," for the purpose of sexual arousal or gratification. For the most part, that law does not deal with recorded images.

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