MILWAUKEE (CN) – A Wisconsin law against exposing one’s genitals to a child cannot cover “sexting” since the sender does not necessarily know the recipient’s age, an appellate court ruled.
Zachary Stuckey was charged in Kenosha County with violating 948.10(1)(a), a class I felony involving the exposure of one’s genitals to a child “for purposes of sexual arousal or sexual gratification.”
Stuckey was 19 when he allegedly “sexted” a picture of his penis to the 14-year-old girl whom he had first met via Facebook and later in person at a movie theater.
During the movie, Stuckey allegedly kissed the girl and touched her breast on the outside of her shirt.
Stuckey was charged with three crimes: using a computer to facilitate a child sex crime contrary to 948.075(1r); exposing genitals or pubic area to a child contrary to 948.10(1)(a); and second-degree sexual assault of a child contrary to 948.02(2).
Since his alleged exposure was not in person, however, Stuckey argued that the second charge could not stand.
A Kenosha County judge agreed, finding that the facts better supported a charge under 948.11, which prohibits “exposing a child to harmful material.”
The Court of Appeals’ second district affirmed Wednesday, concluding that the two statutes are not interchangeable.
“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,” Judge Paul Reilly wrote for a three-member panel.
“We conclude that Wis. Stat. § 948.10, like other statutes within Wis. Sat. 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.”
In a concurring opinion, Judge Mark Gundrum disagreed that “948.10 is limited to only situations involving ‘in-person’ exposures.”
“I believe it also can be constitutionally utilized in situations involving live face-to-face interaction which is not necessarily ‘in person,'” Gundrum added.
Wisconsin had argued “the Legislature intended for the statute to be read expansively so as to encompass both in-person exposures and remote exposures such as Stuckey’s ‘sexting’ of his penis to Doe,” according to the lead opinion.
The problem with such an expansive reading is that Wis. Stat. § 948.10 does not expressly require that the actor know or reasonably know the age of the child-victim or have face-to-face contact prior to the exposure such as is present in other crimes involving crimes against children,” Reilly wrote.
Stuckey’s case is “strikingly similar” to that of the 2000 decision State v. Weidner, according to the ruling.
As it reads today, 948.10 applies only to exposure where there is face-to-face contact, the court found.
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,” Reilly wrote. “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.”
- Peter Fonda