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Distribution of Harmful Material to Children, § 948.11(2)(am) – Internet Chat Room Communication is “Verbal” Communication, within Statute

State v. Shawn B. Ebersold, 2007 WI App 232
For Ebersold: Lester A. Pines

Issue: Whether message sent via Internet chat room supports prosecution for § 948.11(2)(am), verbally communicating harmful material to child.

Holding:

¶9    In this case, the parties dispute whether Wis. Stat. § 948.11(2)(am) prohibits communication of a harmful description or narrative account to a child via an Internet chat message. Whether such a message is within the scope of conduct prohibited by the statute depends largely on the meaning of the word “verbally,” within the phrase “verbally communicates, by any means.” ……

¶14   However, we conclude that the State’s interpretation is more reasonable than Ebersold’s because it is consistent with the context, history and purpose of the statute. … Thus, “verbally” is most reasonably read here as proscribing communication to children of harmful matter in words, whether oral or written, and to distinguish § 948.11(2)(am) from § 948.11(2)(a), which primarily proscribes visual representations.

¶17   The supreme court has declared that the purpose of Wis. Stat. § 948.11 is twofold: “(1) to protect minors from material harmful to them as a class and (2) to protect the rights of parents to supervise the development of their children.” State v. Thiel, 183 Wis.  2d 505, 524, 515 N.W.2d 847 (1994). A reading of § 948.11 that exempts from the ambit of the statute harmful descriptions or narratives that are communicated to a child in written form is inconsistent with these two goals. Ebersold provides no reason why the legislature would exempt written descriptions harmful to children from § 948.11, while making the communication of harmful oral descriptions a Class I felony, and we can conceive of none.

The court rejects a vagueness challenge that the statute fails to provide fair notice that written communications are within its ambit, ¶18: the meaning of “verbal” as associated with words and not merely oral is sufficiently established to “give persons of ordinary intelligence fair notice that it prohibits written communication.” The court, however, leaves open the question of whether the statute covers distribution of a “story on the Internet to a broad audience rather than to a specific person the defendant knew or reasonably should have known was a minor,” ¶18 n. 5.

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