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Court strikes down law against sex offenders photographing children

By: Erika Strebel, [email protected]//September 22, 2015//

Court strikes down law against sex offenders photographing children

By: Erika Strebel, [email protected]//September 22, 2015//

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A three-judge panel has ruled a state law prohibiting sex offenders from taking photographs of children under 17 is unconstitutional.

Wis. Stat. 948.14 prohibits sex offenders from photographing children without the consent of a parent or legal guardian. It does not apply to sex offenders who take photos of their children. Violation of 948.14 is a Class I felony. Violators face fines up to $10,000, imprisonment for up to 3-½ years, or both.

Wis. Stat. 948.14 was enacted in 2005 and took effect in 2006

Tuesday’s ruling stems from an appeal by Christopher Oatman, who was convicted in 2014 in Brown County Circuit Court of eight counts of intentional photographing of children by a registered sex offender based on Wis. Stat. 948.14.

According to the criminal complaint filed in 2013, Oatman photographed or video recorded children playing outside of his home, focusing on their crotches and buttocks.

He was sentenced to 28 years in prison on the eight counts, with 1-½ years of confinement and two years extended supervision per count.

Oatman appealed to the District 3 Court of Appeals, arguing that 948.14 was unconstitutionally overbroad both on its face and applied to the facts of his case.

The court’s three-judge panel agreed Tuesday that the statute was generally overbroad, holding that 948.14 does not withstand the strict scrutiny test, which the court is required to apply when a statute restricts the content of protected speech.

To pass the test, the law must have been passed to further a “compelling government interest” and be narrowly tailored to achieve that interest.

But the appeals court found Tuesday that the statute does neither.

And while the state does have a compelling interest to protect children, the court said, the statute appears to create the potential for harm by encouraging sex offenders to approach children.

“The statute requires all registered sex offenders to seek and obtain parental permission prior to photographing a child,” according to the court’s decision. “But how does one subject to the statute know the identity of a child’s parents or whether those parents are available to give consent? The sex offender’s only option to obtain consent from an apparently unsupervised child is to approach the child and then inquire, ‘Are your parents nearby?’”

The court also noted that the statute was overly broad in that it extends to all images of children, regardless of their content.

The application of the statute, the judges noted, “is so vast as to defy full description” and would “impermissibly prevent” constitutionally protected expression, such as newspaper photographers from taking photos of children and parents from photographing their children with classmates on the first day of kindergarten for sharing with grandparents.

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