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Ludicrous is not the same thing as absurd

State v. Medford B. Matthews, III, 2019 WI App 44; case activity (including briefs)

It’s a crime in Wisconsin to have sex with a person under 18. Specifically, it’s a misdemeanor, if that person is 16 or older—like the 17-and-a-half-year-old alleged victim here. But, it’s tough to have sex without (1) being in a private (or “secluded”) place and (2) exposing one’s genitals. And while the legislature has codified the obvious difference between having sex with, say, an 11-year-old and a 17-year-old (again, by making the latter a misdemeanor), it hasn’t drawn those lines in Wis. Stat. §§ 948.07(1) and 948.10(1), which criminalize child enticement and exposing intimate parts to a child. In each case, “child” means somebody under 18. Perhaps the legislature imagined the decency and good sense of prosecutors would prevent abuse of this discrepancy. Perhaps—no, certainly—the legislature was being optimistic. Because here, though the completed sex act the 28-year-old Matthews is charged with carries a maximum nine-month jail sentence, the six(!) associated felonies carry 65 years in prison. The circuit court called the charging decision “absurd” and “abusive” but, as the state successfully argued in the court of appeals, prosecutors have essentially total discretion: i.e., the power to act abusively, so long as they can make out the elements of an offense. And though the court of appeals telegraphs some mild discomfort with the prosecutor’s oh-so-creative exercise of this discretion, it says the the result is not absurd in a legal sense. So, it reverses the circuit court’s dismissal of the felonies. The result is that Matthews will face a potential life sentence for sex with a 17-year-old–a crime of which a truly scandalous number of us are guilty.

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