Exposing Genitals to a Minor; Sufficiency of the evidence

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Exposing Genitals to a Minor; Sufficiency of the evidence

The practice of “sexting” does not constitute the crime of exposing one’s genitals to a minor in violation of sec. 948.10, but is instead a violation of sec. 948.11, exposing harmful materials to a child.

“Even though WIS. STAT. § 948.10 is a variable obscenity statute, neither the language of the statute nor the related jury instructions require the State to prove scienter (i.e., knowledge) of the age of the person receiving the transmission. Although the exposure must be done “for purposes of sexual arousal or sexual gratification,” the exposure does not need to be knowingly and affirmatively directed toward a specific minor or minors. Cf. Thiel, 183 Wis. 2d at 535. The jury instructions for § 948.10 expressly instruct that knowledge of the child’s age is not required and mistake is not a defense. See WIS JI—CRIMINAL 2140; see also WIS. STAT. § 939.43(2). Section 948.10 essentially sets forth a strict liability offense that deprives an individual of the opportunity to prove lack of knowledge or mistake. See State v. Robins, 2002 WI 65, ¶30, 253 Wis. 2d 298, 646 N.W.2d 287. As it relates to Stuckey’s conduct over the internet as alleged by the State, § 948.10 thus lacks a scienter element as to the age of the person receiving the digital image of genitals or even a requirement that a child was the intended recipient. Under the reasoning set forth in Weidner, § 948.10 cannot be applied in the context of the internet or similar situations that do not involve face-to-face contact. Presented with almost the same fact situation as in Weidner, in which the supreme court found that the State could not constitutionally rely on a variable obscenity statute that lacked a scienter element, the State cannot now rely on another variable obscenity statute lacking a scienter element to criminalize Stuckey’s ‘sexting’ behavior.”

“We conclude that WIS. STAT. § 948.10, like other statutes within WIS. STAT. ch. 948 that create strict liability for crimes against children, can only be employed in situations involving face-to-face contact at the time of the crime, i.e., in-person exposures. See State v. Trochinski, 2002 WI 56, ¶39, 253 Wis. 2d 38, 644 N.W.2d 891 (‘[P]ersonal contact between the perpetrator and the child-victim is what allows the State to impose on the defendant the risk that the victim is a minor.’).”

Affirmed.

Recommended for publication in the official reports.

2012AP1776-CR State v. Stuckey

Dist. II, Kenosha County, Rossell, J., Reilly, J.

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