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Constitutional Defenses – Due Process and Strict Liability: Fraud-Induced Mistake-of-Age Defense to Sexual Assault of Minor

State v. Todd M. Jadowski, 2004 WI 68, on certification
For Jadowski: Richard Hahn
Issue: Whether due process supports an affirmative defense to sexual assault of a minor, § 948.02(2), based on the minor’s intentional misrepresentation of his or her age.

¶36. Upon reading Wis. Stat. § 948.02(2), we conclude that the statute is clear and precise. The prohibited conduct is engaging in sexual intercourse with a child under the age of 16 years. The text is not rendered vague by the difficulties that might attach to an actor’s attempt to ascertain whether the person is at least 16 years old. We are not persuaded that Wis. Stat. § 948.02(2) is unconstitutionally vague.…

¶38. The defendant contends that the statute is overbroad and violates substantive due process because its language is so sweeping that its sanctions may be applied to conduct that the state is not permitted to regulate.35

¶39. The defendant concedes that the government has a significant interest in protecting children and regulating sexual contact between minors and adults and agrees with the court of appeals decision in State v. Fisher that the state’s significant interests in protecting children trumped Fisher’s right to a privacy interest in having sexual intercourse with another person.36

¶40. The defendant argues, however, that because Wis. Stat. § 948.02(2) does not allow a defense based on the victim’s intentional misrepresentation about her age, the statutes impermissibly chill his exercise of his legitimate prerogative to have sex with young women who are of the age of consent. The defendant argues that the circumstances in this case, that is, the victim’s intentional misrepresentation, provide a very narrow and necessary exception to the criminalization of sexual contact between minors and adults.

¶50. Because the legislature’s forbidding a reasonable mistake of age defense in statutory rape cases (whether the mistake is induced by intentional misrepresentation or otherwise) has a significant historical derivation and is widespread, and because of judicial deference to the legislature’s discretion in the exercise of its police powers, we conclude it is not violative of due process for the state legislature to forbid a defense of fraud or reasonable mistake about the age of the victim.52

The court’s dismissal of the constitutional argument is pretty casual; a bit too casual: it doesn’t go much farther analytically than saying that this is the way it’s always been done. That may be fine in relation to a notice argument, but this is a substantive due process claim, and so the court’s wave of the hand doesn’t quite reach what seems to be the heart of the problem: strict liability impermissibly trenches, at least in this sort of instance, on the protected right to intimate interaction with individuals who have attained majority age. Remarkably, the court doesn’t even cite Lawrence v. Texas. Moreover, the court flatly dismisses analogy to first amendment jurisprudence, ¶21 n. 14. The court is at least arguably wrong on both counts; the errors are related. Lawrence is meaningful because it says there is a constitutional right to consensual sex with an adult. And 1st amendment principles are meaningful because they inhibit strict liability for distributing obscene material to minors, see generally, State v. Lane R. Weidner, 2000 WI 52 (“¶11 Because age represents the critical element separating illegal conduct from that which remains protected, to avert significant constitutional dilemmas some form of scienter must be implied in a statute imposing criminal liability based on age.”). These principles should intersect in an age-of-consent context. That is, if the potential inhibition on protected activity is too great to impose strict liability in the one context, it ought to be so in the other as well. Is distribution of pornography a more valued right than consensual sex with an adult? Not, at least arguably, after Lawrence. Jadowski seems to have raised such an argument (indeed, this is, or at least ought to be, his preeminent argument), see ¶40: “defendant argues … the statutes impermissibly chill his exercise of his legitimate prerogative to have sex with young women who are of the age of consent.” To be sure, the argument is stronger put as, chill the legitimate right to have sex with someone who has attained the age of 18, rather than age of consent which is 16 – but this is a mere detail in that it certainly seems as if Jadowski believed the minor was in fact 18. Regardless, that detail doesn’t seem to matter in the way the court treated the argument, which is to say cavalierly dismissed the notion that first amendment principles have any application. Habeas relief seems doubtful (simply because there is no clearly established controlling SCt authority), making cert the only potential avenue of relief.

For foreign authority, taking a more flexible approach, see In re Jennings, Cal SCt No. S115009, 8/23/04 (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 reaosnably believed minor was an adult).

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