Colton challenges his delinquency adjudication for repeated acts of sexual contact with a child under the age of 16 under § 948.025(1)(e), arguing that applying the statute to him violates due process because it provides insufficient standards for distinguishing him from D., the victim, as both were 15 years old and both engaged in sexual activity. Colton also argues that prosecuting him rather than D. violates equal protection. The court concludes that, under the facts of this case, the statute is sufficiently definite to satisfy due process and there was a rational basis for prosecuting Colton instead of D.
To satisfy due process, a statute must provide fair notice of the conduct it covers and be sufficiently definite to allow police, judges, and juries to apply the law objectively to a defendant’s conduct without having to create or apply their own standards, State v. Courtney, 74 Wis. 2d 705, 711, 247 Wis. 2d 714 (1976). Due process doesn’t require the line between lawful and unlawful conduct to be drawn with “absolute clarity and precision”; instead, “[a] fair degree of definiteness is all that is required.” Id. at 710. Colton argues he and D. were both offenders and victims under § 948.025(1)(e) because they each engaged in sexual contact and were under the age of sixteen, and that the statute doesn’t provide a sufficiently definite standard for deciding which of the two juveniles to prosecute.
The court disagrees, finding an objective standard for enforcement and prosecution in the definition of “sexual contact,” which requires intentional touching “either for the purpose of sexually degrading or sexually humiliating the complainant or sexually arousing or gratifying the defendant,” § 948.01(5)(a)(intro). (¶9). Even though a juvenile under the age of sixteen could, in theory, be both a victim and an offender under the statute, that is not the situation given the facts in this case because, the court says, Colton was not a victim under the statute: “The evidence in the record supports the trial court’s conclusion that Colton engaged in sexual contact with D. for the purpose of sexual arousal or gratification. The record fails to demonstrate the same regarding D. Rather, the record indicates D. was an unwilling participant that had to be bribed, coerced, or otherwise forced into sexual contact with Colton.” (¶11). Thus, the prosecution of Colton under the statute didn’t violate his rights to due process.
The court’s agreement with Colton that two juveniles could, in theory, be both a victim and an offender, and its disposition of the case based on its specific facts, means that in other cases, with different facts (e.g., both juveniles acting for the purpose of sexual arousal or gratification), prosecuting only one of the juveniles could be invalid.
Note also that Colton also creatively argued that the statute violates due process because it deems a child to be incapable of giving consent to sexual activity while simultaneously deeming a child to be capable of being held criminally liable for the same activity. He claimed that holding a child criminally liable when he is in the same class the statute is intended to protect runs directly counter to the research on the child development that underlies the Supreme Court’s recent recognition of the diminished culpability of children. The court isn’t persuaded:
¶12 …. We fail to see how this argument advances Colton’s due process claim. The cases cited by Colton relate to Eighth Amendment considerations of cruel and unusual punishment of juveniles for conduct in which they may have diminished culpability, see Miller v. Alabama, 132 S. Ct. 2455 (2012); Graham v. Florida, 560 U.S. 48 (2010); Roper v. Simmons, 543 U.S. 551 (2005), and whether a child’s age should inform the Miranda analysis, see J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011). These cases do not relieve persons of responsibility for criminal acts because they were juveniles at the time the acts were committed and, as a result, do not inform whether a juvenile’s due process rights are violated if they are held criminally liable for having sexual contact with another child under the age of sixteen. ….
The court also concludes the facts of the case dispose of Colton’s equal protection challenge to the state’s decision to prosecute him when he and D. were both perpetrator and victim under the statute:
¶15 “A basic consideration to the question of equal protection in the enforcement of laws is that ‘all persons similarly circumstanced shall be treated alike.’” State v. Johnson, 74 Wis. 2d 169, 173, 246 N.W.2d 503 (1976) (quoting Reed v. Reed, 404 U.S. 71, 76 (1971)). Colton insists, “Because [he] and [D.] were [fifteen] years old when the events in this case occurred, they were both members of the class protected by the statute.” However, we disagree with Colton’s claim that he and D. were similarly situated simply because both boys were fifteen years of age. The evidence in the record suggests the contrary. In particular, the record reflects D.’s unwillingness to participate in the sexual contact. Moreover, the record fails to indicate D. engaged in sexual contact with Colton for the purpose of his own arousal or gratification or to degrade or humiliate Colton, as required under the statute. ….
The court also says that even if the two were similarly situated, the prosecution of one or the other could be saved by a proper exercise of discretion, given the “great discretion” given to prosecutors in this state, Sears v. State, 94 Wis. 2d 128, 133, 287 N.W.2d 785 (1980), and the rule that “selective, persistent and intentionally discriminatory prosecution in the absence of a valid exercise of prosecutorial discretion” is what violates equal protection, State v. Barman, 183 Wis. 2d 180, 187, 515 N.W.2d 493 (Ct. App. 1994) (emphasis added). (¶16). While the court cites at length the prosecutor’s justification for prosecuting Colton in order to show how carefully the prosecutor exercised his discretion (¶17), that justification is just a rehash of the facts that show Colton and D. weren’t similarly situated to begin with; thus, the prosecutorial discretion discussion adds nothing to the analysis.