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Seventh Circuit rejects challenge to § 948.075

Micah D. Stern v. Michael Meisner, 7th Circuit Court of Appeals No. 15-2558, 2/9/16

Stern’s conviction for using a computer to facilitate a sex crime against a child under § 948.075 is constitutional because the Wisconsin appellate court’s conclusion that the statute allows conviction based on the defendant’s “reason to believe” the victim is a minor was neither unreasonable nor unforeseeable.

To be found guilty of violating § 948.075(1r), a person has to use a computer to communicate with an individual the actor “believes or has reason to believe” is under 16   with intent to have sexual contact or sexual intercourse in violation of § 948.02(1) or (2), which are strict liability crimes. Stern argued on direct appeal in state court, and then in his federal habeas petition, that given the need for specific intent to commit child sexual assault, the only constitutional way a defendant can be convicted under § 948.075 is if he actually believes, as opposed to merely having “reason to believe,” the victim is a minor, and for the Wisconsin appellate court to hold otherwise improperly altered the correct intent element and deprived Stern of notice and due process.

The Seventh Circuit holds that the Wisconsin appellate court’s decision is not objectively unreasonable or unforeseeable because, “[a]s is reasonable and required in interpreting the construction of [sic] a statute, the Wisconsin appellate court began by looking to the Statute’s plain language. …. The court found the Statute plain and unambiguous, stating: ‘[The Statute] is violated when the actor either believes or has reason to believe the individual is underage. Stern’s proffered construction is not reasonable because it would require reading ‘has reason to believe’ out of the [S]tatute.’” (Slip op. at 6-7).

However, Stern argues, allowing conviction of a person based on “reason to believe” rather than actual belief violate a person’s right to consensual sex with adults because it allows conviction of an adult communicating with an adult whom he actually believes is an adult; indeed, he argues, that is what happened here, because his defense at trial was that he actually believed the undercover officer was an adult and the undercover officer was in fact an adult.

But Stern misses one crucial detail that distinguishes his case from the theoretical adult communicating with an adult case. In Stern’s case, the undercover officer posing as Peter unequivocally held himself out as being 14 years old by repeatedly telling Stern during their online communications that he was 14 years old. The two had conversations in which they discussed Peter’s age. For instance, Peter told Stern that he was in the ninth grade, lived with his mom, and that he was “jailbait.” Stern asked Peter, “You are 18, right?” followed by a “smiley face” emoticon. Peter replied: “If you want me to lie about being 18 I’m down with that. I just don’t want you to freak out when you see me, okay? I can’t even get into R movies. I look my age.” The jury determined, based on the evidence presented and despite Stern’s defense, Stern had an objective reason to believe Peter was 14.

Stern argues that the statutory framework requires a jury to still find an adult who believed he was communicating with an adult guilty. But, as the district court noted, this result would never happen. If the jury is convinced of the defendant’s credibility and believes the adult defendant was communicating with a consenting adult, then the jury would be precluded from finding the defendant guilty. But, such a scenario is not Stern’s. The undercover officer posed as a 14‐year‐old boy. Stern had reason to believe Peter was 14 years old based upon all of the information provided to Stern by Peter. Based on the evidence, the jury found Stern had the intent to have sexual contact with someone he objectively had reason to believe was 14 years old.

(Slip op. at 10-11).

It doesn’t appear that Stern made a facial challenge to the adequacy of the “reason to believe” language in light of United States v. X-Citement Video, Inc., 513 U.S. 64 (1994), and State v. Zarnke, 224 Wis. 2d 116, 589 N.W.2d 370 (1999), perhaps because such a challenge to an analogous type of scienter (“reason to know”) in the child pornography statute, § 948.12, was rejected in State v. Schaefer, 2003 WI App 164, ¶¶30-41, 266 Wis.2d 719, 688 N.W.2d 760.

{ 2 comments… add one }
  • Evan Weitz February 15, 2016, 10:10 am

    A quick follow-up: I had success in Winnebago County challenging the statute as unconstitutional on vagueness grounds because no clear definition of computerized communication device exists. Those looking to challenge this statute might consider using that argument when text messages or a device other than a computer itself is used.

  • Robert R. Henak February 15, 2016, 10:54 am

    The Seventh Circuit decision does not accurately state the argument we made and reaches an absurd result. The statute actually contains two independent mens rea requirements. The first requires that the defendant believed or had reason to believe that he or she was communicating with a child under 16. The second, which we focused on, required that the communication be “with the intent to have [sex] with the person in violation of [Wis. Stat. s.948.02]. The state courts wrote the second mens rea requirment out of the statute by holding that an objective “reason to believe” the person is under 16 is enough for conviction even when the defendant actually AND CORRECTLY believes that the person is an adult, such that having sex with that person could not remotely satisfy the second mens rea requirement. (Of course, if the person in fact was a child, then reason to believe is sufficient because any intent to have sex with that person would be inviolation of 948.02). Both the state courts and the federal courts simply ignored the fact that they were amending the statute’s clear language to reach their desired result.

    As for the second issue, the federal court ignored the fact that, because the jury was instructed that “reason to believe” was all that was required for conviction, it never would get to the issue of whether the defendant’s testimony was credible that he believed the person he was communicating with was an adult. The court’s conclusion that we never could have a situation in which a defendant is convicted despite actually and correctly believing that the person he or she was communicating with was an adult.

    In other words, the language you use in online fantasy communications with other adults can get you convicted of a felony even if you know for a fact that the person is an adult.

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