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§ 948.05, Sexual exploitation of child – constitutionality

State v. Joel R. Zarnke, 224 Wis.2d 116, 589 N.W.2d 370 (1999), reversing and remanding, 215 Wis.2d 71, 572 N.W.2d 491 (Ct. App. 1997)
For Zarnke: Michael R. Cohen, Wachowski, Johnson & Cohen


¶ The issue before the court is whether Wis. Stat. § 948.05 prohibiting the sexual exploitation of a child violates the First and Fourteenth Amendments to the United States Constitution and Article I, § 3 of the Wisconsin Constitution for failing to require that the State prove that a distributor of sexually explicit materials had knowledge of the minority of the person(s) depicted in the materials. We hold that the statute does violate the federal and state constitutions as it applies to distributors of such materials, and decline to save the statute insofar as it applies to those accused of the proscribed activities of § 948.05(1)(c) which do not entail a personal meeting between the minor depicted and the accused.

The court distinguishes production from distribution of explicit materials involving children – the key is whether the prohibited conduct “entail(s) a personal interaction between the accused and the child-victim.” Contrary to most challenges to constitutionality of a statute, in this instance the state has the burden of proving beyond reasonable doubt that the statute is constitutional, because first amendment rights are at issue. The statute is (as the AG concedes) unconstitutional, because it places on the defendant the burden of proving lack of knowledge, rather than on the state to prove knowledge. Pretermitting elemental proof of scienter surpasses constitutional limits on the legislature authority to define criminal conduct. The court stresses both the free-speech, first amendment aspect of the case on this point, and the idea that the statute is functionally if not nominally strict liability (given the virtual impossibility of a distributor from meeting his/her burden of proving lack of knowledge of age). In sum: “We hold that an essential element of the crime specified in Wis. Stat. § 948.05 must be an accused’s knowledge of the minority of the child-victim, that the State must bear the burden of proving some level of scienter as to that essential element where an accused’s conduct does not entail a personal meeting with the minor, and that as currently drafted, the legislature has not constitutionally allocated that necessary burden.” Though the court on occasion has “saved” otherwise .unconstitutional statutes by imposing certain requirements it won’t do so in this case, largely because it would have to rewrite the statute in a manner contrary to the legislature’s express intent. (“severing the offending portions of the statute, and then reading into those same portions a burden that the legislature explicitly rejected, would be an act of legislation.”) “With the removal of the offending language, § 948.05(1)(c) now reads: ‘Produces or performs in any undeveloped film, photographic negative, photograph, motion picture, videotape, sound recording or other reproduction of a child engaging in sexually explicit conduct.’ We explicitly reserve the question of whether this remaining portion of § 948.05(1)(c) is constitutional.”

For authority to effect that distribution of child-sex material must be intentional, see People v. Tombs, 697 N.W.2d 494 (MI 2005) (“The most applicable dictionary definition of ‘distribute’ implies putting items in the hands of others as a knowing and intentional act”; thus, mere possession of child pornography downloaded onto workplace computer insufficient to support conviction).

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