State v. Zarnke

Citation224 Wis.2d 116,589 N.W.2d 370
Decision Date26 February 1999
Docket NumberNo. 97-1664-CR,97-1664-CR
PartiesSTATE of Wisconsin, Plaintiff-Appellant, v. Joel R. ZARNKE, Defendant-Respondent-Petitioner.
CourtUnited States State Supreme Court of Wisconsin

For the defendant-respondent-petitioner there were briefs by Michael R. Cohen and Wachowski, Johnson Cohen, S.C. Eau Claire and oral argument by Michael R. Cohen.

For the plaintiff-appellant the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶1 DONALD W. STEINMETZ, J

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.

I

¶2 The defendant was charged with, among other felonies, two counts of sexual exploitation of a child contrary to Wis. Stat. § 948.05(1)(c) (1995-96) 1 for his reproduction and/or distribution of photographs, electronically stored images, and other pictorial reproductions of a child engaging in sexually explicit conduct. Section 948.05 states in relevant part as follows:

(1) Whoever does any of the following with knowledge of the character and content of the sexually explicit conduct involving the child is guilty of a class C felony.

...

(c) Produces, performs in, profits from, promotes, imports into the state, reproduces, advertises, sells, distributes or possesses with intent to sell or distribute, any undeveloped film, photographic negative, photograph, motion picture, videotape, sound recording or other reproduction of a child engaging in sexually explicit conduct.

...

(3) It is an affirmative defense to prosecution for a violation of this section if the defendant had reasonable cause to believe that the child had attained the age of 18 years, and the child exhibited to the defendant, or the defendant's agent or client, a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that the child had attained the age of 18 years. A defendant who raises this affirmative defense has the burden of proving this defense by a preponderance of the evidence.

(emphasis added.)

¶3 The defendant moved to dismiss the sexual exploitation charges on several grounds, including, as is relevant here, that Wis. Stat. § 948.05 is unconstitutional because it does not require that the State prove that the defendant had knowledge of the minority of the person(s) depicted in the sexually explicit materials, but instead impermissibly allocates to the defendant the burden to prove lack of such knowledge by a preponderance of the evidence as an affirmative defense. The circuit court agreed with the defendant, and basing its decision on United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994), ruled that § 948.05 was unconstitutional in its entirety and dismissed the two charges.

¶4 The State appealed and the court of appeals reversed. State v. Zarnke, 215 Wis.2d 71, 572 N.W.2d 491 (Ct.App.1997). On appeal, the defendant conceded that the decision of the circuit court for Eau Claire County, Honorable Benjamin D. Proctor, holding the entirety of Wis. Stat. § 948.05 unconstitutional, was in error as to those portions of the statute which regulate the production of sexually explicit materials involving minors and which, presumably, involve personal interaction between the child-victim and the accused. However, the defendant maintained that the portion of § 948.05(1)(c) addressing the distribution of sexually explicit materials involving minors, and which did not involve the personal interaction between the child-victim and the accused, was unconstitutional.

¶5 The State agreed with the defendant that the statute was constitutional as applied to the production, but unconstitutional as applied to the distribution, of sexually explicit materials involving children. The State presented the issue for review as one centered upon the extent to which the statute could be saved to avoid dismissal of the charges against the defendant.

¶6 The court of appeals agreed with both parties that when an accused did not have the opportunity to personally meet the child-victim, the State must carry the burden to prove, as an element of the offense under Wis. Stat. § 948.05, that a defendant distributor had knowledge of the minority of the child-victim depicted in the sexually explicit material in issue. It based this conclusion on X-Citement Video. However, the court wrote that § 948.05 did in fact place that necessary burden upon the State, and, therefore, was not unconstitutional. The court provided further that in the alternative, the statute could be saved by first severing the offending portions and then reading into those same offending portions the requirement that the State prove all the elements of the offense, which would include proof of the defendant's knowledge of the minority of the child-victim.

¶7 The defendant appealed and we granted his petition for review. We now reverse the court of appeals' decision. We hold that Wis. Stat. § 948.05 on its face does not set forth the requirement that the State carry the burden to prove that the defendant had knowledge of the minority of the child-victim depicted in the sexually explicit materials for which the prosecution is being brought. Therefore, the statute as written is unconstitutional as it applies to the distribution of sexually explicit material depicting minors, as well as to the other prohibited conduct which does not entail a personal interaction between the accused and the child-victim.

II

¶8 The constitutionality of a statute is a question of law that we review de novo. State v. Post, 197 Wis.2d 279, 301, 541 N.W.2d 115 (1995). Ordinarily, there is a presumption of constitutionality for a legislative enactment. Id. In most circumstances, those challenging the constitutionality of a statute have the burden to prove that the statute is unconstitutional beyond a reasonable doubt. Norquist v. Zeuske, 211 Wis.2d 241, 250, 564 N.W.2d 748 (1997). However, because Wis. Stat. § 948.05 implicates First Amendment rights, 2 the State has the burden of proving beyond a reasonable doubt that the statute is constitutional. State v. Thiel, 183 Wis.2d 505, 523, 515 N.W.2d 847 (1994); City of Madison v. Baumann, 162 Wis.2d 660, 668-69, 470 N.W.2d 296 (1991).

¶9 The State does not argue that the statute is constitutional as it applies to distributors of sexually explicit materials involving children, but rather concedes that it is unconstitutional and argues for saving it. Regardless, we believe that the statute's constitutional infirmities merit our discussion.

A

¶10 Both parties to this appeal agree that the statute places the burden as to the question of the defendant's knowledge of the minority of one or more of the persons depicted in the sexually explicit materials upon the defendant as an affirmative defense. However, the court of appeals independently concluded that for distributors of sexually explicit materials, the burden to prove this knowledge was placed on the State.

¶11 The court of appeals held that the legislature did not intend the affirmative defense set forth in Wis. Stat. § 948.05(3) to apply to the violations of Wis. Stat. § 948.05(1)(c) that do not involve a face-to-face involvement with the child-victim. In so holding, the court began with the premise that the legislature has always intended to prevent conviction under § 948.05, and its predecessor in Wis. Stat. § 940.203 (1987-88) (repealed effective July 1, 1989), of one who was reasonably ignorant of the minority of persons depicted in sexually explicit material.

¶12 The court believed that when, in 1987, Wis. Stat. § 940.203 was renumbered as Wis. Stat. § 948.05 and amended by the legislature to shift the burden of proof of knowledge from the State to the defendant, the legislature did not change its underlying policy that those free of guilty knowledge could not be punished for sexual exploitation of a child. Zarnke, 215 Wis.2d at 78, 572 N.W.2d 491. Because the legislature knew that guilty knowledge had been, and continued to be, an element of the offense, the court of appeals believed that the legislature could not have intended the affirmative defense to apply to the instant case because to do so would be unreasonable and absurd--where the defendant did not have a face-to-face involvement with the victim, it would be impossible for the defendant to satisfy the defense. The court agreed with the defendant that one who is not involved in face-to-face exploitation could never satisfy the requirement under the affirmative defense that the child produced suitable documentary evidence of his or her majority. Construing the statute to avoid an unreasonable or absurd result, Schwartz v. DILHR, 72 Wis.2d 217, 222, 240 N.W.2d 173 (1976), the court concluded that the affirmative defense could apply only to those categories of criminal activity in which it is reasonable to conclude that the defendant could have had the opportunity to meet the child-victim face-to-face.

¶13 While we agree with the court of appeals that the affirmative defense set out in Wis. Stat. § 948.05(3) is a practical impossibility for distributors of sexually explicit materials, we decline to follow its reasoning and agree instead with both parties that as currently...

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