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Constitutional challenge to penalty enhancer for using a computer to facilitate a child sex crime fails

State v. James D. Heidke, 2016 WI App 55; case activity (including briefs)

The state charged Heidke with one count of use of a computer to facilitate a child sex crime. Heidke moved to dismiss the penalty enhancer in §939.617(1) because it violates the Equal Protection Clause of the Fourteenth and Eighth Amendments in that it has no rational basis to that crime and it is unconstitutional as applied to him.

Heidke’s “no rational basis” claim relied principally on State v. Asfoor, 75 Wis. 2d 411, 249 N.W.2d 529 (1977), where two crimes had the same elements but the results of the crimes differed. Where the criminal conduct caused bodily harm it resulted in a felony. Where the same conduct caused death it resulted in a misdemeanor. Asfoor deemed this an irrational classification and a violation of equal protection under the law.

Heidke highlighted §948.075 which criminalizes use of a computerized system to find children for sex. A person convicted under this statute faces a mandatory minimum sentence of 5 years, per §939.617(1). Heidke then pointed to §948.02, the general statute prohibiting sexual contact or intercourse with children. A person convicted for a completed act of child sexual assault does not face any mandatory minimum sentence.

The court of appeals found a rational basis for this discrepancy in the penalty enhancer’s legislative history. The legislature originally imposed a presumptive minimum sentence of five years for commission of this crime, but courts were not enforcing it. The legislature responded by changing the presumptive minimum to a mandatory minimum. These facts supported the increased severity of the penalty. Slip op. ¶12. By contrast, the court explained, there is no perception that judges tend to impose lenient sentences for child sexual assault. ¶14.  The court also cited legislative history supporting the view that using a computer to facilitate child sex is a dangerous and evil activity when completed. ¶16.

Heidke’s argument that the penalty enhancer was unconstitutional as applied to him also failed. He never attempted to commit child sexual assault, and he did not communicate with a child; he communicated with a cop pretending to be a child. But the court of appeals said: “While this crime was never completed, Heidke’s intentions were to engage in a child sex crime.” ¶19.

Asfoor type challenges remain viable. The Heidke tried just didn’t pan out–at least not according to the court of appeals. Attorneys researching this penalty enhancer may find the discussion of legislative history in the court of appeals opinion and the parties’ briefs helpful.

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