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Due Process – Scienter, § 948.12

State v. John Lee Schaefer, 2003 WI App 164, PFR filed 8/21/03
For Schaefer: Jefren E. Olsen, SPD, Madison Appellate


¶32. Schaefer claims that by allowing conviction for possession of child pornography when a defendant “reasonably should know” that the child depicted is under eighteen years of age, Wis. Stat. § 948.12 omits a scienter requirement for the offense. He contends that in expressing the intent element regarding the minority of the depicted child in the pornographic materials as “knows or reasonably should know,” the legislature created a statute that allows conviction for mere negligence. In Schaefer’s view, “reasonably should know” invokes the objective “reasonable man” standard applied in civil tort actions, the result being that Wis. Stat. § 948.12 creates criminal liability for those individuals who lacked actual knowledge but, through ignorance, mistake or accident, failed to exercise reasonable care and possessed pornographic material depicting children. However, we conclude that the statute is not constitutionally deficient with regard to scienter.

The legislative fix, stemming from the overturn of the prior § 948.12 in State v. Joel R. Zarnke, 224 Wis.2d 116, 589 N.W.2d 370 (1999), is ratified. An objective form of scienter – reasonably should know – satisfies a constitutionally minimal scienter requirement:

¶41. Delineating the precise level of scienter in a criminal statute is a policy decision reserved for the legislature. We conclude that, in a criminal statute for possession of child pornography, “reasonably should know” is less than actual knowledge but still requires more than the standard used in civil negligence actions. “Criminal negligence” after all, is defined as “something less than wilful and wanton conduct which, by the law of this state, is the virtual equivalent of intentional wrong.” State ex rel. Zent v. Yanny, 244 Wis. 342, 347, 12 N.W.2d 45 (1943).6 The State must show that the defendant had an awareness of certain facts and information that would have caused a reasonable person to conclude that the persons depicted in the materials were minors. The burden is not on the defendant to show that he attempted to ascertain the age of the photographed individuals. Considered in that light, Wis. Stat. § 948.12 is not constitutionally infirm because, as amended, it requires the “some level of scienter” that was lacking in the version of the statute examined in Zarnke.

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