SHIRLEY S. ABRAHAMSON, C.J.
¶ 1. This is an appeal from an order of the Circuit Court for She-boygan County, L. Edward Stengel, Judge. Todd M. Jadowski, the defendant, faces prosecution on one count of sexual intercourse with a person who has not yet attained the age of 16 years contrary to Wis. Stat. § 948.02 (1999-2000).
The circuit court granted the defendant's motion to introduce evidence of the victim's intentional misrepresentation of her age.
¶ 2. This case comes before the court on certification by the court of appeals pursuant to Wis. Stat. § (Rule) 809.61. The court of appeals certified the following questions:
(1) Is a minor sexual assault victim's intentional misrepresentation of his or her age a defense to a charge brought under Wis. Stat. § 948.02(2)?
(2) If not, do Wis. Stat. §§ 939.23, 939.43(2), and 948.02(2) deny an accused his constitutional rights under the Fourteenth Amendment to the United States Constitution?
¶ 3. We answer the questions as follows:
(1) Wisconsin Stat. § 948.02(2) read in conjunction with Wis. Stat. §§ 939.23 and 939.43(2) precludes a defense predicated on a child's intentional misrepresentation of her age. On the basis of the text of the statutes, the history and purpose of the statutes, and the practical requirements of law enforcement, and despite the severe penalties imposed, we conclude that no affirmative defense of the victim's intentional
misrepresentation of his or her age exists in a prosecution under Wis. Stat. § 948.02(2). We decline the defendant's invitation to engraft such an affirmative defense onto § 948.02(2). Accordingly, we further conclude that the circuit court erred in ruling to admit the evidence the defendant proffered. If an accused's reasonable belief about the victim's age, based on the victim's intentional misrepresentation of age, is not a defense, then neither evidence regarding the defendant's belief about the victim's age nor evidence regarding the cause for or reasonableness of that belief is relevant.
Therefore, evidence of the defendant's reasonable belief about the victim's age or the victim's intentional misrepresentation of her age is inadmissible in the guilt-determination phase of a criminal proceeding to support the defendant's asserted affirmative fraud defense to the crime.
(2) The statutes do not violate an accused's rights under the Fourteenth Amendment to the United States Constitution.
¶ 4. We therefore reverse the order of the circuit court and remand the cause to the circuit court for further proceedings consistent with this decision.
I — I
¶ 5. For purposes of this appeal, the facts are not in dispute. On April 15, 2002, the State filed a complaint against the 35-year-old defendant, alleging that on April 3, 2002, he had sexual intercourse with a
person below the age of 16 in violation of Wis. Stat. § 948.02(2). The victim was born on September 13, 1986, making her about five and a half months shy of her 16th birthday on the date of the alleged assault.
¶ 6. Prior to trial the defendant moved to admit evidence that the victim fraudulently induced him to believe she was an adult. The circuit court held an evidentiary hearing on the motion. The defendant made an offer of proof that the victim was a chronic runaway; that the victim used what appeared to be a state-issued identification card showing her to be 19 years old; that the victim told the defendant and others that she was 19 years old; that the victim appeared to be 19 years old; and that the victim maintained in the defendant's presence that she was old enough to work as an exotic dancer.
¶ 7. The circuit court ruled that evidence of the victim's fraud was admissible under Wis. Stat. § 904.04 as relevant to the "issue of intent on behalf of the alleged victim as well as the absence of mistake or accident."
¶ 8. The State timely filed a motion for reconsideration, which the circuit court denied. The State sought leave to appeal the order admitting this evidence. The court of appeals granted leave to appeal and then certified the cause to this court as an issue of first impression.
¶ 9. The first issue requires us to decide whether a minor sexual assault victim's intentional misrepresentation of his or her age is a defense to a charge brought under Wis. Stat. § 948.02(2). This court decides questions of statutory interpretation independently of the circuit court and court of appeals, but benefiting from their analyses.
¶ 10. The second issue requires us to determine the constitutionality of statutes. The question of constitutionality is a question of law that we decide independently of the circuit court or court of appeals, but benefiting from their analyses.
Statutes are presumed to be constitutional.
A party challenging a statute's constitutionality must ordinarily demonstrate that the statute is unconstitutional beyond a reasonable doubt.
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¶ 11. The first issue we address is whether a minor sexual assault victim's intentional misrepresentation of his or her age is a defense to a charge under Wis. Stat. § 948.02(2). The defendant asserts that his reasonable belief about the victim's age based on the victim's fraud regarding her age should be a defense to a charge under § 948.02(2). We read Wis. Stat. § 948.02(2) with § 939.23 and § 939.43(2) to preclude a defense predicated on a child's intentional misrepresentation of her age.
¶ 12. Section 948.02(2) governs second-degree sexual assault of a child and provides that "[w]hoever has sexual contact or sexual intercourse with a person who has not attained the age of 16 years is guilty of a Class BC felony." The defendant and the State agree that the State must prove only two elements for a conviction: that the accused had sexual contact or intercourse with the victim, and that the victim was under the age of sixteen.
The defendant asserts, however, that a victim's intentional misrepresentation of her age is an affirmative defense to the crime.
¶ 13. The issue, then, is whether the statutes allow an affirmative defense predicated on the victim's intentional misrepresentation of his or her age.
¶ 14. Wisconsin Stat. § 939.23, governing criminal intent as an element for crimes, provides guidance in determining whether an accused's reasonable belief
about a victim's age based on the victim's intentional misrepresentation is a defense.
¶ 15. Section 939.23 addresses criminal intent as an element of all crimes in chapters 939 to 951. When criminal intent is an element of a crime, the statute uses one of several words or phrases, such as "intentionally," "know," or "believe."
The sexual assault offense in the case at bar (§ 948.02(2)) does not contain any of the words or phrases denoting criminal intent.
¶ 16. Even if Wis. Stat. § 948.02(2) included a word of criminal intent like "intentionally" or "know," the State would not have to prove an accused's knowledge of the age of the minor. Section 939.23(6) expressly provides that criminal intent "does not require proof of knowledge of the age of a minor even though age is a material element in the crime in question."
¶ 17. Thus the sexual assault statute in the case at bar read in conjunction with Wis. Stat. § 939.23(6) does not require an actor to know the victim's age and does not set forth an actor's reasonable (but erroneous) belief about the victim's age as a defense.
¶ 18. An actor's ability to raise mistake regarding his belief about the age of a minor as a defense is explicitly negated in Wis. Stat. § 939.43(2). The general rule about mistake, set forth in § 939.43(1), is that "[a]n honest error, whether of fact or of law other than criminal law, is a defense if it negatives the existence of a state of mind essential to the crime."
The exception to this general rule applies here: "A mistake as to the age of a minor ... is not a defense."
¶ 19. The defendant acknowledges that Wis. Stat. §§ 948.02(2), 939.23, and 939.43(2) prohibit an actor from raising mistake about the age of the minor as a defense to the charge of sexual assault.
The defendant reasons that although these statutes prohibit the defense of mistake, they do not prohibit an actor from raising the affirmative defense of a victim's intentional misrepresentation about her age. The defendant distinguishes the defense of mistake from the defense of fraud. He asserts that he, as a victim of fraud, is not in the same position as an accused who is mistaken about the victim's age or who commits an honest error. The
defendant urges that he was not mistaken about the victim's age; he was defrauded by the victim.
¶ 20. The defendant's affirmative defense of fraud is premised in part upon Wis. Stat. § 939.45, governing privilege as a defense to prosecution for a crime. The defendant relies on § 939.45(6), the "catch-all" provision of the privilege statute. The catch-all provision states that the defense of privilege can be claimed "[w]hen for any other reason the actor's conduct is privileged by the statutory or common law of this state." The defendant does not explain, however, upon what statute or common law rule he is relying under the catch-all privilege statute.
¶ 21. The crux of the defendant's position is that this court should engraft an affirmative defense of fraud onto Wis. Stat. § 948.02(2) even though the text of the statutes renders an actor mistaken as to a child's age liable for the crime.
We are not persuaded that any reason exists for this court to perform such a task. We agree with the State that § 948.02(2) is a strict liability crime with regard to knowledge of the child's
age.
Numerous indicia point to the conclusion that no affirmative fraud defense is part of or should be read into § 948.02(2) and that the defendant's proposed affirmative defense is contrary to the policy adopted by the legislature.
¶ 22. First, an examination of Wis. Stat. § 948.02(2) in the broader context of chapter 948, Crimes Against Children, demonstrates that the legislature has, in certain statutes, created an affirmative defense of reasonable cause to believe that the child had attained the age of 18 years. See, for example, Wis. Stat. § 948.11(2) (c), pertaining to exhibition of harmful materials to a child, and § 948.05, pertaining to sexual exploitation of a child. Inclusion of this "reasonable cause to believe" affirmative defense in some child exploitation provisions in chapter 948 but not in others supports the conclusion that the legislature did not intend to include this affirmative defense in § 948.02(2).
Because the
legislature did not expressly create the "reasonable cause to believe" defense in § 948.02(2), this court should not read it into the statute.
¶ 23. Second, Legislative Council drafting documents of the 1950-1953 criminal code, since which time Wis. Stat. §§ 939.23 and 939.43(2) have remained essentially the same, are replete with evidence that the drafters intended to impose strict liability on an actor regardless of the actor's knowledge or belief about a child's age in child sexual assault cases.
¶ 24. Third, the purpose of Wis. Stat. § 948.02(2) is furthered by not engrafting onto the statute the affirmative defense proposed by the defendant. The statute is based on a policy determination by the legislature that persons under the age of sixteen are not competent to consent to sexual contact or sexual intercourse. The statute is intended to protect children. The state has a strong interest in the ethical and moral development of its children, and this state has a long tradition of honoring its obligation to protect its children from predators and from themselves.
The statutes are designed to impose the risk of criminal penalty on the adult, when the adult engages in sexual behavior with a minor.
¶ 25. Fourth, engrafting the defendant's proposed defense onto the statute undermines the policy of protecting minors from sexual abuse and would raise practical law enforcement problems. Age is difficult to ascertain, and actors could often reasonably claim that
they believed their victims were adults.
The requirements of practical law enforcement support a conclusion that Wis. Stat. § 948.02(2) is a strict liability statute with regard to the age of the victim.
¶ 26. Fifth, the traditional approach, originally accepted in virtually every state and still accepted in many jurisdictions, is to impose strict liability regarding the age of the victim no matter how reasonable the defendant's belief that the victim was old enough to consent, and no matter that the belief is based on the victim's own representations.
The need for or desirability of providing a mistake or fraud defense regarding the age of the victim has been subject to debate.
Professor LaFave, to whom this court often turns for assistance, concludes that in more recent times the
issue of such a defense has been recognized as "a policy matter that ought to be specifically addressed in the statutory definition of the crime."
¶ 27. Historically, the penalty imposed under a statute has been a significant consideration in determining whether a statute should be construed as dispensing with mens rea.
Criminal liability without criminal intent almost always has involved statutes that impose only fines or short jail sentences.
Indeed, some courts have justified the imposition of criminal liability without requiring proof of scienter in part because the offenses did not bear the same punishments as "infamous crimes"
and questioned whether imprisonment was compatible with the reduced culpability required for such regulatory offenses.
¶ 28. The severe penalties for violation of Wis. Stat. § 948.02(2) stand in sharp contrast to the less severe penalties at issue in other strict liability offenses. The maximum penalty for a conviction under Wis. Stat. § 948.02(2) is a $10,000 fine or 30 years imprisonment or both.
In addition to these penalties, an individual convicted of violating § 948.02(2) is sub
ject to registration as a sex offender, including annual registration requirements.
The offender is subject to the provisions of Wis. Stat. ch. 980 governing commitments of sexually violent persons. As a felon, the individual would also lose his or her right to possess a firearm,
to hold an office of public trust,
and to vote.
¶ 29. The severe penalties for violation of Wis. Stat. § 948.02(2) support an inference that the legislature did not intend to impose strict liability regarding knowledge of the age of the victim. Yet this inference drawn from the severe penalties is outweighed by the other factors we have set forth.
¶ 30. On the basis of the text of Wis. Stat. § 948.02(2) read in conjunction with §§ 939.23 and 939.43(2), the history and purpose of the statutes, and the practical requirements of law enforcement, and despite the severe penalties imposed, we conclude that no intentional misrepresentation defense exists in a prosecution under Wis. Stat. § 948.02(2). We decline the defendant's invitation to engraft an affirmative defense for fraud onto § 948.02(2).
¶ 31. Accordingly, we further conclude that the circuit court erred in ruling to admit the evidence the defendant proffered. If an accused's reasonable belief about the victim's age, based on the victim's intentional misrepresentation, is not a defense, then neither evi
dence regarding the defendant's belief about the victim's age nor evidence regarding the cause of or reasonableness of that belief is relevant.
Therefore, evidence of the defendant's belief about the victim's age or the victim's intentional misrepresentation of her age is inadmissible in the guilt-determination phase of a criminal proceeding to support the defendant's asserted affirmative fraud defense to the crime.
IV
¶ 32. We turn to the second issue: If an accused is not allowed an affirmative defense that his reasonable belief about the victim's age was caused by her intentional misrepresentation of her age, do Wis. Stat. §§ 948.02(2), 939.23, and 939.43(2) deny an accused his constitutional rights under the Fourteenth Amendment to the United States Constitution?
We conclude that the statutes do not violate the defendant's constitutional rights.
¶ 33. The defendant argues that these statutes are unconstitutional on the following due process grounds: The statutes are vague, they are overbroad, and they violate the defendant's right to substantive due process.
¶ 34. The defendant's argument on vagueness is that without the fraud defense no actor knows with certainty when he commits the crime of sexual assault of a child. The defendant does not argue that he was unaware of the illegality of engaging in sexual intercourse with a 15-year-old. Rather, he argues that an actor of normal intelligence does not know that his conduct with a particular individual is forbidden because of the difficulty of ascertaining the age of the individual. The defendant asserts that unless he can introduce evidence of a reasonable mistake as to the age of the victim, caused by the victim's intentional misrepresentation of age, the statute is unconstitutionally vague.
¶ 35. In examining a legislative act for vagueness, we must determine whether the statute is sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise judges and juries of standards for the determination of guilt.
¶ 36. Upon reading Wis. Stat. § 948.02(2), we conclude that the statute is clear and precise. The prohib
ited conduct is engaging in sexual intercourse with a child under the age of 16 years. The text is not rendered vague by the difficulties that might attach to an actor's attempt to ascertain whether the person is at least 16 years old. We are not persuaded that Wis. Stat. § 948.02(2) is unconstitutionally vague.
¶ 37. The defendant's next argument is that his right to intimate association is protected by the due process clause of the Fourteenth Amendment and that Wis. Stat. § 948.02(2) is unconstitutionally overbroad and violates substantive due process. The overbreadth and substantive due process challenges overlap, and we shall treat them together.
¶ 38. The defendant contends that the statute is overbroad and violates substantive due process because its language is so sweeping that its sanctions may be applied to conduct that the state is not permitted to regulate.
¶ 39. The defendant concedes that the government has a significant interest in protecting children and regulating sexual contact between minors and adults and agrees with the court of appeals decision in
State v. Fisher
that the state's significant interests in protecting children trumped Fisher's right to a privacy interest in having sexual intercourse with another person.
¶ 40. The defendant argues, however, that because Wis. Stat. § 948.02(2) does not allow a defense based on the victim's intentional misrepresentation about her age, the statutes impermissibly chill his exercise of his legitimate prerogative to have sex with
young women who are of the age of consent. The defendant argues that the circumstances in this case, that is, the victim's intentional misrepresentation, provide a very narrow and necessary exception to the criminalization of sexual contact between minors and adults.
¶ 41. The crux of the defendant's constitutional argument is that he is being held criminally liable for a felony with severe penalties when, if given the opportunity, he could prove himself morally blameless. He is morally blameless, he asserts, because he was fraudulently induced by the minor to have a reasonable belief that she was of age.
¶ 42. Substantive due process protects citizens against arbitrary or wrongful state actions, regardless
of the fairness of the procedures used to implement them.
¶ 43. It is a fundamental principle of law that an actor should not be convicted of a crime if he had no reason to believe that the act he committed was a crime or that it was wrongful. An intent requirement was the general rule at common law.
The absence of a mens rea requirement in a criminal statute is a significant departure from longstanding principles of criminal law.
¶ 44. Nevertheless, strict liability crimes, that is, crimes defined without any culpable state of mind, are known at law. In general, when strict liability is imposed, the actor is deemed to have had sufficient notice concerning the risk of penal sanction inherent in the proscribed activity that it is not unjust to impose criminal liability without the necessity of proving moral culpability.
"[T]he existence and content of the criminal prohibition in these cases are not hidden; the defendant is warned to steer well clear of the core of the
offense (as in the statutory rape case)."
Adults are well aware of the strict liability aspect of statutory rape laws.
¶ 45. The legislature has broad powers to promote the public welfare and to create criminal offenses and impose punishment.
A state legislature is free to define a criminal offense and a state may bar consideration of a particular defense so long as the result does not offend "some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."
¶ 46. The strict liability crime of statutory rape, in which the victim's apparent maturity is not a defense, is a recognized exception to the general rule requiring mens rea in criminal statutes.
Traditionally, according to the weight of authority, "mistake as to age" has not been a defense against the charge of statutory rape.
This rule is still followed in many jurisdictions.
¶ 47. Furthermore, strict liability regarding the age of the minor furthers the legitimate government interest in protecting children from sexual abuse by placing the risk of mistake on the adult actor.
¶ 48. The long history of statutory rape as a recognized exception to the requirement of criminal intent and the well accepted legislative purpose for omitting scienter undermine the defendant's argument that Wis. Stat. § 948.02(2) offends principles of justice deeply rooted in our traditions and conscience.
¶ 49. We acknowledge that there has been movement away from strict liability for statutory rape in recent years.
Under the Model Penal Code, for example, the defense of mistaken belief should be available when the critical age is more than 10 years of age.
The theory is that the policies underpinning strict liability seem less compelling as the age of the minor
increases; an accused who mistakenly but reasonably believes such a partner is above the critical age should have a defense because he "evidences no abnormality, no willingness to take advantage of immaturity, no propensity to corruption of minors."
¶ 50. Because the legislature's forbidding a reasonable mistake of age defense in statutory rape cases (whether the mistake is induced by intentional misrepresentation or otherwise) has a significant historical derivation and is widespread, and because of judicial deference to the legislature's discretion in the exercise of its police powers, we conclude it is not violative of due process for the state legislature to forbid a defense of fraud or reasonable mistake about the age of the victim.
¶ 51. In sum, we conclude that the plain language of Wis. Stat. § 948.02(2), read in conjunction with Wis. Stat- §§ 939.23 and 939.43, precludes a defense predicated on a child's intentional misrepresentation of her age. We also conclude that the statutes do not violate the defendant's rights under the Fourteenth Amendment to the United States Constitution. Accordingly, we reverse the order of the circuit court and remand the cause for further proceedings consistent with this decision.
By the Court.
— The order of the circuit court is reversed and the cause is remanded to the circuit court.