¶ 44. Before accepting a defendant's plea of no contest, a circuit court must satisfy itself that a sufficient factual basis exists that the defendant committed the crime to which the defendant entered the plea. *72Wisconsin Stat. § 971.08(1)(b) (1999-2000)1 explicitly provides that "[b]efore the court accepts a plea of guilty or no contest,... it shall. .. [m]ake such inquiry as satisfies it that the defendant in fact committed the crime charged."2 When no evidence exists as to one of the elements of the crime charged, a circuit court cannot accept a defendant's plea of guilty or no contest.3
¶ 45. This court reviews a circuit court's decision denying a defendant's motion to withdraw a plea of no contest to determine whether the circuit court erroneously exercised its discretion in denying the motion.4 "Failure by the circuit court judge to ascertain that 'the defendant in fact committed the crime charged' is an erroneous exercise of discretion."5 Thus, when a circuit *73court erroneously determines that the facts are sufficient to constitute the crime charged, the circuit court has committed an error of law, and the circuit court has erroneously exercised its discretion in denying the defendant's motion to withdraw the plea.6 This court must determine in the present case whether, as a matter of law, the facts are sufficient to constitute the crime charged to which the defendant pled no contest.
¶ 46. At the hearing on the motion to withdraw his plea, the defendant testified that he did not believe that the photographs were sufficient to support a conviction for the crime. The circuit court made no finding at that hearing that the facts were sufficient to establish the crime. But the defendant did not directly argue that no factual basis supported his conviction. Rather, both in the circuit court and here, the defendant primarily argued that his plea was not voluntary because he did not understand the "harmful material" element of the offense. I agree with the circuit court and the majority opinion that the plea was voluntary in that the defendant understood the nature of the charge.
¶ 47. The underlying issue in the case is not, in my view, whether the defendant's plea was voluntary, but whether the totality of the facts in the record is sufficient to support the crime to which the defendant pled. A circuit court must determine whether a factual basis for the crime exists when there is a plea of no contest. The factual basis for a crime charged when *74receiving a no contest plea "is distinct from the . . . voluntariness requirement."7 A factual basis must be established to "protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge."8 The defendant claims that he did not realize that his conduct did not fall within the scope of the conduct prohibited under the statute charged.
¶ 48. So what is the factual basis for the charge? The complaint in the present case alleges that the defendant "unlawfully with knowledge of the nature of the material [did] transfer to a child, to-wit: J.A.L., F/W dob: 09-30-81, harmful material, to-wit: a picture of himself depicting nudity, contrary to Section 948.11(2)(a) Wis. Stats. (Class E Felony)." The Statement of Probable Cause describes the photographs as of the defendant "standing nude and in a manner displaying his penis." The Statement of Probable Cause also refers to a letter the defendant gave the victim "inviting her [the victim] to review the photographs and conveying information regarding his achievement of being accepted to display himself in Playgirl Magazine." The Statement of Probable Cause also refers to a letter from Playgirl Magazine (known to the officer "to be a periodical which includes publication of nude photographs of male individuals") advising the defendant that he was being selected as a subject for entry into the magazine.
¶ 49. The photographs were not attached to the complaint or Statement of Probable Cause. The letters were not attached to the complaint or the Statement of *75Probable Cause. The complaint does not allege that the printed materials are harmful material under the statute. Moreover, the printed materials do not fit the statutory description of harmful material.
¶ 50. At the plea hearing in the present case, the circuit court accepted the plea without examining the photographs depicting nudity that the complaint alleges to be the harmful material. The circuit court simply concluded that the record, "especially the probable cause section of the complaint," set forth a factual basis sufficient to support the plea. The defendant was thereafter sentenced to six years in prison, as recommended by the State.9
¶ 51. If our examination of the record ended here, it is obvious that a sufficient factual basis does not exist to support the circuit court's legal conclusion that the facts were sufficient to support the defendant's plea to the crime charged. The complaint and Statement of Probable Cause simply state that the defendant showed photographs of himself nude to a young woman who was then seventeen years and three months of age. That's it.
¶ 52. Not all nude photos shown to a person over the age of seventeen but below the age of eighteen violate the statute. Although the statute defines "harmful material" to mean a visual representation "that depicts nudity,"10 the statute requires that the visual representation of nudity be "harmful to children."11 (Emphasis added.)
*76¶ 53. The statute defines "harmful to children" by setting forth a three-part test that must be satisfied in order for a visual depiction of nudity to be harmful to children. The three-part test is as follows:
"Harmful to children" means that quality of any description, narrative account or representation, in whatever form, of nudity, sexually explicit conduct, sexual excitement,12 sadomasochistic abuse, physical torture or brutality, when it:
1. Predominantly appeals to the prurient, shameful or morbid interest of children;
2. Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for children; and
3. Lacks serious literary, artistic, political, scientific or educational value for children, when taken as a whole.13
*77Without examining the photographs, a court cannot determine whether the photographs satisfy this three-part test.
¶ 54. Nudity seems to be the least offensive type of visual representation listed in the statute. The other visual representations ■ falling within the statute are "sexually explicit conduct, sexual excitement, sadomasochistic abuse, physical torture or brutality." Furthermore, the victim here is seventeen years and three months of age, nine months short of being beyond the age the statute covers. If the victim were eighteen years of age, the defendant could not be charged under this statute for displaying the photograph to the young woman.
¶ 55. The Wisconsin legislature created a variable obscenity statute in Wis. Stat. § 948.11, apparently adapting the Miller14 obscenity test to proscribe conduct relating to children. A variable obscenity statute delineates what is obscene for children; what is obscene for children may very well not be obscene for adults.15
¶ 56. A problem with § 948.11 is that it does not tell us whether the statute is variable within itself regarding the age of the children viewing the materials. This court stated in State v. Thiel, 183 Wis. 2d 505, 536, 515 N.W.2d 847 (1994), that whether any given material lacks serious literary, artistic, political, scientific, or educational value for children (§ 948.11(l)(b)3.), when taken as a whole, should be "assessed by a reasonable *78minor of like age to the minor to whom the material is exhibited."16 (Emphasis in original.)
¶ 57. If we are to consider the age of the minor victim in interpreting Wis. Stat. § 948.11(1)(b)3., should we also consider the age of the minor victim in interpreting § 948.11(1)(b)1. and (1)(b)2.? If we do not consider the age of the minor victim in interpreting what is harmful to children under § 948.11(1)(b)1. and (1)(b)2., what age child do we use in interpreting the statute? Five-year-olds are different from children who are between seventeen and eighteen years of age.17
¶ 58. Thus, a simple review of the facts of the complaint and Statement of Probable Cause puts a court on notice that the facts stated are not sufficient to constitute the crime to which the defendant pled. However, in other cases involving a review of the factual basis of a plea (cases that are not entirely similar to the present case), this court has examined the whole *79record.18I therefore examine the entire record to determine if a sufficient factual basis exists to support the defendant's plea.
¶ 59. Two of the ten photographs referred to in the Statement of Probable Cause were offered and received in evidence at the sentencing hearing. The photographs show the defendant standing naked in front of a curtain, displaying a non-erect penis.
¶ 60. Many would probably agree that the defendant's conduct is distasteful and even possibly predatory.19 The issue before us, however, is not the character of the defendant, or whether he engaged in conduct of which we disapprove, or whether he engaged in some sort of anti-social or criminal conduct. The issue here is whether the defendant's conduct in displaying the photos to a young woman over the age of *80seventeen years constituted, as a matter of law, the offense to which the defendant pled no contest. The facts in the entire record raise significant doubts.
¶ 61. The weakness of the State's decision to prosecute the offense charged is clearly demonstrated in the prosecutor's argument at sentencing. At the sentencing hearing the State argued that the pictures in and of themselves were not the "sort of the thing that would cause the concern that is before [the court]." The State emphasized that the crux of the offense in the present case was that the defendant was using the photographs in an attempt to seduce the seventeen-year-old and that the defendant should be punished for this predatory conduct.
¶ 62. After examining the entire record, I am compelled to conclude that the circuit court's decision that a sufficient factual basis exists to support the plea of no contest was an error of law. The circuit court never analyzed the statutory standard of "harmful material" set forth in Wis. Stat. § 948.11(1)(ar)1. and (1)(b). The circuit court also failed to apply the "harmful material" standard to the photographs in the record and to the circumstances of the case, including the age of the victim. The circuit court concluded without explanation and before examining the photographs that there was "a factual basis sufficient to support the plea that is offered." The photographs do not supply a factual basis for the offense charged.
¶ 63. For the reasons set forth, I conclude that the defendant has raised a serious question as to whether displaying the photographs to the seventeen-year-old plus in the present case violates the statutory standard. I therefore further conclude that the circuit court erred as a matter of law in refusing to allow the defendant to withdraw his plea of no contest and that the parties *81should be returned to their respective positions before they entered the plea agreement.
¶ 64. One final point. At least as to a seventeen-year-old victim, the statutes seem to punish persons who are less culpable more severely than they punish more culpable persons. For example, had the defendant had sexual intercourse with the victim, a minor over the age of sixteen, he would be guilty of a Class A misdemeanor, with a maximum punishment of imprisonment not to exceed nine months.20 However, the maximum penalty for the felony charged in the present case, displaying a photograph of a nude male to a minor who is seventeen years old, is two years in prison. I suggest that the legislature might want to review these statutes. See Wis. Stat. §§ 13.83(1)(c)1. and 13.93(2)(d).
¶ 65. For the reasons set forth, I dissent.
¶ 66. I am authorized to state that Justice WILLIAM A. BABLITCH joins this opinion.
All subsequent references to the Wisconsin Statutes are to the 1999-2000 version, unless otherwise indicated.
See State v. Thomas, 2000 WI 13, ¶ 23, 232 Wis. 2d 714, 605 N.W.2d 836; State v. Bangert, 131 Wis. 2d 246, 262, 389 N.W.2d 12 (1986); White v. State, 85 Wis. 2d 485, 490, 271 N.W.2d 97 (1978).
When there is a negotiated plea, as in the present case, the circuit court need not go to the same length to determine whether the facts would sustain the charge as it would when there is no negotiated plea. Broadie v. State, 68 Wis. 2d 420, 423-24, 228 N.W.2d 687 (1975); Wilson v. State, 57 Wis. 2d 508, 513, 204 N.W.2d 508 (1973).
A circuit court does not participate in a plea agreement and is not bound by a plea agreement between the State and a defendant. Young v. State, 49 Wis. 2d 361, 367, 182 N.W.2d 262 (1971); State v. Wolfe, 46 Wis. 2d 478, 488, 175 N.W.2d 216 (1970).
State v. Smith, 202 Wis. 2d 21, 25, 549 N.W.2d 232 (1996); White, 85 Wis. 2d at 491.
State v. Johnson, 207 Wis. 2d 239, 244, 558 N.W.2d 375 (1997).
*73A postconviction motion for the withdrawal of a guilty plea is granted to correct a manifest injustice. One type of manifest injustice is the failure to establish a sufficient factual basis that the defendant committed the offense to which he pleads. Johnson, 207 Wis. 2d at 244.
See White, 85 Wis. 2d at 490-92.
Thomas, 2000 WI 13, ¶ 14, citing White, 85 Wis. 2d at 491.
McCarthy v. United States, 394 U.S. 459, 467 (1969) (quoted in White, 85 Wis. 2d at 491).
The defendant was sentenced as a repeater. He had two prior convictions for battery, one that involved violence to a child and one that involved intoxication and violence to a woman. In addition, his parole had been revoked twice.
Nudity is defined as the showing of the human male or female genitals. Wis. Stat. § 948.11(1)(d).
Wis. Stat. § 948.11(1)(ar)1.
*76The defendant also gave the young woman a copy of a letter allegedly from Playgirl and a letter from himself, the contents of which are not described in the Statement of Probable Cause. The complaint does not allege that these letters are harmful materials in violation of Wis. Stat. § 948.11. Section 948.11(1)(ar)2. defines harmful material as printed matter that contains a photograph or other visual representation violating § 948.11(1)(ar)1. or "explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexually explicit conduct, sadomasochistic abuse, physical torture or brutality and that, taken as a whole, is harmful to children."
Sexual excitement means the condition of human male or female genitals when in a state of sexual stimulation or arousal. Wis. Stat. § 948.11(1)(f).
Wis. Stat. § 948.11(1)(b).
Miller v. California, 413 U.S. 15 (1973).
State v. Thiel, 183 Wis. 2d 505, 525 n.13, 515 N.W.2d 847 (1994).
The supreme court of Virginia concluded that "if a work is found to have a serious literary, artistic, political or scientific value for a legitimate minority of normal, older adolescents, then it cannot be said to lack such value for the entire class of juveniles taken as a whole." American Booksellers Ass'n v. Commonwealth, 882 F.2d 125, 127 (4th Cir. 1989) (quoting Commonwealth v. American Booksellers Ass'n, 372 S.E.2d 618, 624 (Va. 1988)).
In Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S.Ct. 1700 (2002), Justices Kennedy, Souter, and Ginsburg concurring in the judgment stated that the court fails to reach the issue "whether the statute's failure to distinguish between material that is harmful to a six year old versus a sixteen year old is problematic."
See Thomas, 2000 WI 13, ¶ 23, citing White, 85 Wis. 2d at 491.
The defendant's parole officer testified that the defendant's conduct was "sexually inappropriate" and "very typical of grooming behavior in which the person is trying to get the child to have an interest and to manipulate them to have sex with them."
In the sentencing hearing the prosecutor stressed that the case was about a man in his late twenties who displayed photos of himself and a soliciting type of letter. "What 29-year-old or 28-year-old self-respecting male is going to run around the countryside taking pictures of himself standing in the nude displaying his male organ, showing them to anybody . . . ? We are talking about someone who is using pictures of himself in all likelihood to solicit candidates for his ongoing quest to father 12 children . . . ."
This argument may be valid in a sentencing hearing but this argument does not assist in determining whether a factual basis exists for the crime charged.
Wis. Stat. § 948.09.