The court of appeals concludes that the prohibition in § 948.10 against exposing genitals to a child is a “variable obscenity” statute, and to avoid unconstitutional application it must be read to require proof the defendant knew he was exposing himself to someone under the age of 18. Because the statute does not explicitly include that element, the court, applying State v. Weidner, 2000 WI 52, 235 Wis. 2d 306, 611 N.W.2d 684, holds the statute may be applied only if the conduct occurs in situations involving face-to-face contact. Accordingly, the circuit court properly dismissed a charge alleging Stuckey violated the statute by sending a picture of his penis in a text message to someone he met on the internet.
Variable obscenity statutes distinguish between obscene and non-obscene offenses based on the audience to which the content is directed and the nature of the content’s appeal or impact on the audience. They reflect the fact that age can matter in First Amendment jurisprudence: Sexual expression that is appropriate for adults may not be suitable for children, and the government may regulate the exposure of minors to sexually explicit content in promoting the government’s compelling interest to safeguard the physical and psychological well-being of children. Because variable obscenity statutes criminalize activity directed toward children that could be legal when directed toward adults, they must include either a “scienter” element that requires the state to prove the defendant knows (or has reason to know) the victim is a child or a requirement the defendant had face-to-face contact with the child, as in §§ 948.055(2), 948.075(1r), 948.11(2), or 948.12(1m). (¶¶7-12, citing Weidner, 235 Wis. 2d 306, ¶¶9-14, 37).
The history of § 948.10 shows the legislature “inten[ded] to protect children in both private and public settings and to criminalize the exposure of genitalia to children whether the exposure is ‘indecent’ (i.e. obscene) or not. As § 948.10 criminalizes certain activity directed toward children that could be considered legal when directed toward adults, it can be considered a variable obscenity statute….” (¶14). However:
¶15 Even though Wis. Stat. § 948.10 is a variable obscenity statute, neither the language of the statute nor the related jury instructions require the State to prove scienter (i.e., knowledge) of the age of the person receiving the transmission. Although the exposure must be done “for purposes of sexual arousal or sexual gratification,” the exposure does not need to be knowingly and affirmatively directed toward a specific minor or minors. Cf. [State v.] Thiel, 183 Wis. 2d [505,] 535[, 515 N.W.2d 847 (1994)]. The jury instructions for § 948.10 expressly instruct that knowledge of the child’s age is not required and mistake is not a defense. See Wis JI—Criminal 2140; see also Wis. Stat. § 939.43(2). Section 948.10 essentially sets forth a strict liability offense that deprives an individual of the opportunity to prove lack of knowledge or mistake. See State v. Robins, 2002 WI 65, ¶30, 253 Wis. 2d 298, 646 N.W.2d 287. As it relates to Stuckey’s conduct over the internet as alleged by the State, § 948.10 thus lacks a scienter element as to the age of the person receiving the digital image of genitals or even a requirement that a child was the intended recipient. Under the reasoning set forth in Weidner, § 948.10 cannot be applied in the context of the internet or similar situations that do not involve face-to-face contact. Presented with almost the same fact situation as in Weidner, in which the supreme court found that the State could not constitutionally rely on a variable obscenity statute that lacked a scienter element, the State cannot now rely on another variable obscenity statute lacking a scienter element to criminalize Stuckey’s “sexting” behavior.
¶16 We conclude that Wis. Stat. § 948.10, like other statutes within Wis. Stat. ch. 948 that create strict liability for crimes against children, can only be employed in situations involving face-to-face contact at the time of the crime, i.e., in-person exposures. See State v. Trochinski, 2002 WI 56, ¶39, 253 Wis. 2d 38, 644 N.W.2d 891 (“[P]ersonal contact between the perpetrator and the child-victim is what allows the State to impose on the defendant the risk that the victim is a minor.”).
Judge Gundrum concurs, noting that Weidner did not decide the adequacy of face-to-face contact over the internet, 235 Wis. 2d 306, ¶1 n.3; that technology allowing for face-to-face interaction (e.g., Skype) is now widely available; and that § 948.10 could be constitutionally applied to cases where such technology was used because despite the absence of “in-person” contact “such technology affords sufficient reliability for determining the age of the person on the other end of the communication….” (¶21).
While Stuckey can’t be prosecuted under § 948.10, his legal woes aren’t necessarily over: He can be charged under § 948.11 for sending harmful material to a child over the internet. (¶¶1-2, 17).