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Sexual Assault, § 948.02(2) — Defense of Deceitfully Misleading Defendant as to Minor’s Age

State v. Todd M. Jadowski, 2004 WI 68, on certification
For Jadowski: Richard Hahn

Issue: Whether a minor sexual assault complainant’s intentional misrepresentation of his or her age supports an affirmative defense to § 948.02(2) sexual assault.

Holding:

¶19. The defendant acknowledges that Wis. Stat. §§ 948.02(2), 939.23, and 939.43(2) prohibit an actor from raising mistake about the age of the minor as a defense to the charge of sexual assault.13 The defendant reasons that although these statutes prohibit the defense of mistake, they do not prohibit an actor from raising the affirmative defense of a victim’s intentional misrepresentation about her age. The defendant distinguishes the defense of mistake from the defense of fraud. He asserts that he, as a victim of fraud, is not in the same position as an accused who is mistaken about the victim’s age or who commits an honest error. The defendant urges that he was not mistaken about the victim’s age; he was defrauded by the victim.…

¶21. The crux of the defendant’s position is that this court should engraft an affirmative defense of fraud onto Wis. Stat. § 948.02(2) even though the text of the statutes renders an actor mistaken as to a child’s age liable for the crime.14 We are not persuaded that any reason exists for this court to perform such a task. We agree with the State that § 948.02(2) is a strict liability crime with regard to knowledge of the child’s age.15 Numerous indicia point to the conclusion that no affirmative fraud defense is part of or should be read into § 948.02(2) and that the defendant’s proposed affirmative defense is contrary to the policy adopted by the legislature.

¶31. Accordingly, we further conclude that the circuit court erred in ruling to admit the evidence the defendant proffered. If an accused’s reasonable belief about the victim’s age, based on the victim’s intentional misrepresentation, is not a defense, then neither evidence regarding the defendant’s belief about the victim’s age nor evidence regarding the cause of or reasonableness of that belief is relevant.32 Therefore, evidence of the defendant’s belief about the victim’s age or the victim’s intentional misrepresentation of her age is inadmissible in the guilt-determination phase of a criminal proceeding to support the defendant’s asserted affirmative fraud defense to the crime.

Much of the court’s analysis seems informed by evident legislative intent “to protect children.… The statutes are designed to impose the risk of criminal penalty on the adult, when the adult engages in sexual behavior with a minor.” ¶24. The proposed defense could let too many offenders off the hook. ¶25. But compare this policy concern with the unfortunate Jadowski’s actual circumstance: he says he can show that “the victim was a chronic runaway; that the victim used what appeared to be a state-issued identification card showing her to be 19 years old; that the victim told the defendant and others that she was 19 years old; that the victim appeared to be 19 years old; and that the victim maintained in the defendant’s presence that she was old enough to work as an exotic dancer.” ¶6. The “victim,” by the way, was but a few months away from the age of consent, closer in age to 16 than 15. Not that it matters, apparently, but you have to wonder which of the two was more gullible and in need of protection.

UPDATE: For foreign authority, taking a more flexible approach, see In re Jennings, 95 P. 3d 906 (Cal 2004) (despite fact that crime of providing minor with alcohol imposed strict liability, court would recognize affirmative defense of mistake of fact: that defendant honestly and reasonably believed minor was an adult).

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