¶ 24. (dissenting). I do not join in the majority's opinion because it is an attempt to avoid the *337requirement of Cook v. Cook, 208 Wis. 2d 166, 190, 560 N.W.2d 246 (1997), that "the court of appeals may not overrule, modify or withdraw language from a previously published decision of the court of appeals."1 The majority acknowledges that it may not hold that the meaning we gave to "reasonable expectation of privacy" in the predecessor to Wis. Stat. § 942.09(2)(am)l. (2007-08)2 in State v. Nelson, 2006 WI App 124, ¶¶ 19-21, 294 Wis. 2d 578, 718 N.W.2d 168, is incorrect, and therefore it cannot use the words "overrule, modify or withdraw." Majority, ¶ 20. Instead, the majority uses the word "incomplete" to avoid the meaning we previously gave to the statute. Majority, ¶ 20.
¶ 25. Thus, if the court of appeals uses the word "incomplete" to differentiate one of our published opin *338ions, we can avoid Cook in most circumstances. While this is ingenious wordsmithing, it is not the way a hierarchical legal system should operate. Though we are not saying "that was then and this is now," the result is the same.
¶ 26. By not mentioning it, the majority also avoids consideration of another long-held rule of statutory construction. In Delvaux v. Vanden Langenberg, 130 Wis. 2d 464, 476, 387 N.W.2d 751 (1986), the court quoted the following passage from Zimmerman v. Wisconsin Electric Power Co., 38 Wis. 2d 626, 633-34, 157 N.W.2d 648 (1968):
Where a law passed by the legislature has been construed by the courts, legislative acquiescence in or refusal to pass a measure that would defeat the courts' construction is not an equivocal act. The legislature is presumed to know that in absence of its changing the law, the construction put upon it by the courts will remain unchanged; for the principle of the courts' decision — legislative intent — is a historical fact and, hence, unchanging. Thus, when the legislature acquiesces or refuses to change the law, it has acknowledged that the courts' interpretation of legislative intent is correct. This being so, however, the courts are henceforth constrained not to alter their construction; having correctly determined legislative intent, they have fulfilled their function.
¶ 27. It is thus necessary to examine Nelson to determine what meaning we gave to the language in Wis. Stat. § 942.09(2)(am)l.; in particular, we must examine the definition we gave to a person's "reasonable expectation of privacy." In Nelson, 294 Wis. 2d 578, ¶ 21, we said:
If we apply the common meanings of "expectation" and "privacy" and the well-established meaning of the *339term "reasonable," [the statute] requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others, and that assumption is a reasonable one under all the circumstances, meaning that it is an appropriate one under all the circumstances according to an objective standard. We conclude this is a reasonable construction of "reasonable expectation of privacy" because it employs the common and well-established meanings of the words.
¶ 28. In Nelson, we did not purport to give a narrow meaning to the statute, limited to the facts of the case. Instead, we devoted numerous pages of inquiry and analysis to determine the meaning of the phrase "reasonable expectation of privacy" as that term was used in the statute. This was not an offhand comment or a footnote. Instead, it was a successful attempt to define a statute so that future readers of the statute would know what it meant. And we said that this meaning was determined by whether a nude person reasonably assumed that he or she was secluded from the presence or view of others. We had the opportunity to say what the majority says today, but we did not. That is why Cook and Delvaux require that we follow Nelson.
¶ 29. There is another reason the majority has reached the wrong conclusion. The whole purpose of our examination of statutes is to discern what the legislature had in mind when adopting a statute. Here, we must interpret a statute aimed at recording nudity. Private nudity and recording that nudity are, by themselves, benign activities. But the legislature has criminalized various conduct involving both nudity and recording. As explained in Nelson, the recording of someone who is nude and has no knowledge or expec*340tation that anyone is not only watching them but recording them is a felony, Wisconsin's most serious category of criminal penalties. But secretly recording nudity in a locker room, a place where nudity is common, consensual, and understood, is a Class B misdemeanor, punishable much less seriously than a felony. See Wis. Stat. § 942.09(5). What the majority does is make its own value judgment about recording someone who consents to being viewed nude but objects to being recorded nude. That is not what we addressed in Nelson. Nelson does not support the majority's conclusion today.
¶ 30. Finally, in order to make its interpretation work, the majority does what State v. Dibble, 2002 WI App 219, ¶ 15, 257 Wis. 2d 274, 650 N.W.2d 908, prohibits when the majority repeals part of Wis. Stat. § 942.09(2)(am)l. We explained in Nelson, 294 Wis. 2d 578, ¶¶ 27-30, that the legislature had amended a previous version of this statute after the supreme court had found the statute unconstitutional in State v. Stevenson, 2000 WI 71, 236 Wis. 2d 86, 613 N.W.2d 90. We noted that the legislature had added the phrase "reasonable expectation of privacy" to the statute to create the statute we now have. Nelson, 294 Wis. 2d 578, ¶ 29 & n.5.
¶ 31. We said that, following the legislature's response to Stevenson, the statute has four elements: (1) the defendant captured a representation of nudity; (2) the person depicted nude did not know of or consent to the depiction; (3) "the person . . . depicted nude was nude in a circumstance in which he or she had a reasonable expectation of privacy"; and (4) "the defendant knew or had reason to know that the person . . . *341depicted nude did not know of and did not consent to the [depiction]." Nelson, 294 Wis. 2d 578, ¶ 14 (citation omitted).
¶ 32. Under the majority's interpretation, one who has not consented to being recorded nude (element two) will generally have a reasonable expectation of privacy (element three). Majority, ¶ 22 (acknowledging that, under its interpretation, the two elements "often go hand in hand"). The majority's interpretation thus renders element three superfluous. We are to avoid that construction. Dibble, 257 Wis. 2d 274, ¶ 15. As we explained in Nelson, the addition of "reasonable expectation of privacy" to Wis. Stat. § 942.09(2)(am)l. was intended to have a limiting effect. As such, it must add another element to the statute rather than merely duplicate the element of not consenting to the recording.
¶ 33. The majority denies rendering element three superfluous because there may be a case where a person does not consent to being recorded nude, but lacks a reasonable expectation of not being recorded nude. In the majority's first hypothetical, a woman who consents to sexual activity with a man who admits to having secretly recorded partners in the past, but who does not consent to being recorded, may not have a reasonable expectation of privacy. Thus, the man could secretly record her without violating the statute. To support its interpretation, the majority is forced to posit a hypothetical which is not only unlikely and bizarre, but a reversion to a now-rejected concept that "no" does not always mean "no." Instead of highlighting any difference between elements two and three, the majority's hypothetical illustrates how its interpretation of "reasonable expectation of privacy" has changed that element into an issue of consent, by arguing that a *342woman who knows of a man's past really cannot claim to have said "no" to the recording. If this hypothetical is accepted, a victim's knowledge of a person's past criminal behavior allows that person the freedom to again victimize, this time with impunity. The victim of secret nude recording should not be told that she should have known better.
¶ 34. The majority's hypothetical also negates the majority's key argument — that Jahnke's conduct is criminalized by the statute because it must be covered in order to criminalize a reproduction or distribution of the recording. Again, most people would agree that distribution of a secret recording of private consensual sexual activity ought to be prohibited. But that does not mean that all of it is. Nelson explains that some is and some is not. Nelson tells us that had Nelson distributed the tape he secretly made of the women in the bathroom, that would be a criminal act. If the man in the majority's first hypothetical is free to record the woman who knows of the man's past recording, is that man also free to distribute the suspect video? If the man in the first hypothetical is free to record and distribute, why is Jahnke not free to do so? The majority's first hypothetical runs aground on its own reef.
¶ 35. The majority's "beach walking while nude" analogy fares no better. What the majority has described is the very type of scenario that caused the supreme court to hold a previous version of Wis. Stat. § 942.09(2)(am)l. unconstitutional in Stevenson, 236 Wis. 2d 86. Thus, the majority is really arguing that in situations where the statute clearly does not apply (because the supreme court has said its application would be unconstitutional), elements (2) and (3) could be different. But defendants are not prosecuted where the State knows a prosecution would be unconstitu*343tional. The majority's second analogy proves nothing. In situations where it really matters, such as Jahnke's, and in the real and not hypothetical world, the majority has excised element (3) from Nelson. That is as much a modification of Nelson as if the majority had overruled Nelson in that respect.
¶ 36. The question we must answer is whether the statute prohibits what Jahnke did. The answer is easy. The statute does not, given the meaning we adopted in Nelson, which is now a part of the statute itself. See Wenke v. Gehl Co., 2004 WI 103, ¶ 31 & n.17, 274 Wis. 2d 220, 682 N.W.2d 405. Whether a statute should prohibit Jahnke's conduct, or the conduct posited by the various hypotheticals in this case, is a question to be answered legislatively, not judicially. Judges should interpret legislation, not enact it.
¶ 37. The legislature is quite capable of determining what conduct should be criminal, and how that conduct should be punished. If the legislature does not agree with a court's interpretation of legislation, it can easily change the legislation to accord with the legislature's intent. It has done so once with Wis. Stat. § 942.09, and it could do so again, or not, as it determines the proper policy for Wisconsin. I would leave it up to the legislature.
¶ 38. For the reasons stated, I respectfully dissent.
That is not to say that the court of appeals has not discovered ways, such as used in today's majority opinion, to avoid Cook v. Cook, 208 Wis. 2d 166, 560 N.W.2d 246 (1997), by using language other than "overrule, modify or withdraw" even though that is the result of the opinion. See LaCount v. Salkowski, 2002 WI App 287, ¶ 15, 258 Wis. 2d 635, 654 N.W.2d 295 (distinguishing prior published opinion though facts are identical).
Wisconsin Stat. § 942.09(2)(am) provides:
Whoever does any of the following is guilty of a Class I felony:
1. Captures a representation that depicts nudity without the knowledge and consent of the person who is depicted nude while that person is nude in a circumstance in which he or she has a reasonable expectation of privacy, if the person knows or has reason to know that the person who is depicted nude does not know of and consent to the capture of the representation.
I refer to the 2007-08 statutes, as does the majority. Majority, ¶ 1 & n.l. The current Wis. Stat. § 942.09(2)(am)l. is identical to the previous § 942.09(2)(a) (2005-06), and thus our interpretation of § 942.09(2)(a) in State v. Nelson, 2006 WI App 124, 294 Wis. 2d 578, 718 N.W.2d 168, applies to the current statute.