Child porn defendant will get new sentence

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A defendant convicted of distributing child pornography must be resentenced, possibly without application of the 15-year mandatory minimum.

In an opinion by Judge Frank H. Easterbrook, the Seventh Circuit held that, because it was not clear that his prior conviction for statutory rape was “abusive” as the term is defined by federal law, the five-year minimum may apply instead.

Easterbrook wrote, “Given the lack of a definition in sec. 2252, we think it best to say that, as a matter of federal law, sexual behavior is ‘abusive’ only if it is similar to one of the crimes denominated as a form of ‘abuse’ elsewhere in Title 18.”

After Sean Osborne pleaded guilty in federal court in Indiana, the district court imposed the 15-year mandatory minimum, based on a prior conviction under an Indiana statute that made it a crime for a person age 18 or older to have sexual contact with a child aged 14 or 15.

In doing so, the district court applied 18 U.S.C. 2252(b)(1), which sets the minimum sentence at 15 years if the defendant has a prior conviction “under the laws of any state relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”

However, the statute does not define “abusive,” and no prior court of appeals’ opinion addresses the word’s meaning.

The government argued that all sexual contact with minors should be considered abusive.

However, the court concluded that, if this interpretation were correct, the word “abusive” in the statute would be superfluous; Congress would have written the statute to apply whenever the defendant has any conviction for any sexual conduct with a minor.

Seeking a definition of “abusive,” the court turned for guidance to the federal sexual assault statutes — 18 U.S.C. secs. 2241-2243.

Section 2241 covers “aggravated sexual abuse”; sec. 2242 deals with “sexual abuse”; and sec. 2243 addresses “sexual abuse of a minor or ward”.

Because sec. 2243 was most similar to Osborne’s Indiana statutory rape case, the court held that, only if his conduct would violate that statute could it trigger the 15-year mandatory minimum.

Section 2243(a) makes it a crime to “engage[] in a sexual act” with a person between the ages of 12 and 15 who is at least 4 years younger than the defendant. A “sexual act” includes intercourse, fellatio, cunnilingus, and touching genitalia “not through the clothing”.

The court concluded, “It is easy to see why any sexual contact by a child’s adult relatives might be deemed abusive even though no federal statute covers the subject. But a state statute that makes it a crime for one teenager to engage in sexual contact with another, without committing a sexual act or without a four-year difference in age, is hard to classify as “abusive” given the treatment that term receives in … the Criminal Code.”

Finding that the Indiana statute Osborne violated included some behavior that would fit into the federal statute, and some that would not, the court vacated Osborne’s sentence, and remanded the case to district court to determine whether Osborne was convicted of conduct comparable to that covered by sec. 2243.

Analysis

Although the court’s opinion only addresses Indiana’s statutory rape statutes, it will also dictate whether prior violations of Wis. Stat. sec. 948.02 constitute prior convictions for abusive sexual conduct involving a minor.

Some violations of the statute will clearly count as prior convictions for “abusive” sexual conduct, such as subsec. (1)(am), which applies when the victim is under age 13, and contains as an element that the defendant caused great bodily harm.

Similarly, subsec. (1)(c) has as elements that the defendant used or threatened force or violence, and the victim was under age 16.

However, some convictions under subsec. (1)(d) would appear not to trigger the higher minimum. That subsection does not require sexual intercourse, but only “sexual contact” with a person under age 16. Some “sexual contact” under Wisconsin law does not qualify as a “sexual act” under federal law.

Some convictions under subsec. (1)(e) would not qualify either. That statute makes it a crime to have sexual contact with a person under age 13. As with subsec. (1)(d), the statute includes acts that are not “sexual acts” under federal law.

18 U.S.C. 2243(a) criminalizes sexual acts with persons between 12 and 15, who are more than 4 years younger than the defendant.

Because only sexual contact is required, rather than sexual intercourse, if the victim in a conviction under subsec. (1)(e) is 12 years old, the conviction won’t count as abusive sexual conduct, unless it is clear from the charging papers and plea colloquy that the activity at issue qualified as a “sexual act.”

If the victim is under 12, prior convictions will count as abusive, because any sexual contact with children under 12 is “abusive sexual contact” under sec. 2244.

Finally, some convictions under subsec. (2) will not trigger the higher mandatory minimum. That subsection makes it a crime to have sexual contact or sexual intercourse with a person who has not attained the age of 16.

Only if it is clear from the charging papers and the plea colloquy that the case involved a “sexual act,” rather than sexual contact, and the defendant was more than four years older than the victim, will a conviction under this subsection trigger the higher minimum.