Coincidentally, at about the time I was posting last week on what Corey Rayburn Yung calls the War on Sex Offenders, the Seventh Circuit was providing further evidence of the War. In United States v. Fletcher (No. 08-3195), the court rejected both a scienter requirement and a mistake-of-age defense in connection with child-pornography prosecutions under 18 U.S.C. § 2251(a).
Convicted of producing child pornography, Fletcher argued on appeal that he should have been permitted to present a defense based on a mistaken belief that his “performers” were of age. On its face, however, the statute contains neither a requirement that the government prove knowledge of age nor an affirmative mistake-of-age defense. In this sense, § 2251(a) creates a strict-liability offense, and thereby contravenes our normal expectation that criminal liability must be premised on a knowing choice to do wrong — recalling to mind Yung’s obervation that “wars” on crime are typically marked by the recognition of exceptions to the normal rules of criminal justice.
But, Fletcher argued, even if the statute did not expressly contemplate a mistake-of-age defense, the Constitution required that such a defense be recognized.
More specifically, Fletcher argued that “without the defense the statute chills conduct protected by the First Amendment — namely, the creation of non-obscene pornography featuring adult actors who may appear young” (11).
Although the Ninth Circuit had accepted such an argument in United States v. U.S. Dist. Court, 858 F.2d 534 (9th Cir. 1988), the Seventh Circuit chose in Fletcher to go along with the other circuits that have considered and rejected a mistake-of-age defense to charges under § 2251.
The court framed the legal question this way:
Thus, the relevant question us is whether § 2251 as written risks chilling such a substantial amount of protected conduct that the absence of a mistake-of-age defense outweighs the government’s indisputably compelling interest in protecting children from the documented ills of child pornography. (13)
(A couple of quick asides here on the rhetoric. First, the court speaks of the “government’s” interests, but is really referring to the federal government. As the federal health-care reforms continue to galvanize opposition to expansive views of the federal role — and to generate judicial opinions rejecting the expansive view, at least at the district court level — perhaps we should not take for granted the legitimacy of federal interests in child welfare, which has traditionally been a matter of state responsibility. Indeed, Fletcher himself was convicted in state court under state law for the very same conduct that gave rise to the federal prosecution. Does the federal government really have an “indisputably compelling interest” in prosecuting conduct that can be, and routinely is, prosecuted in state court? Second, the opinion speaks of the government’s interest in protecting “children,” but the statute actually covers performers who vary widely in age, maturity, and experience. There seems a particular urgency — a “compelling interest,” so to speak — in deterring the sexual exploitation of prepubescent kids that may not be quite so keen when we are talking about, say, a physically mature, sexually experienced seventeen-year old — indeed, the term “child” may not even strike as quite the right word in the latter case. This is not to say that seventeen-year-old porn stars are okay – I think they are not – but it is to suggest that difficult legal policy questions like whether to have a mistake-of-age defense seem effectively predetermined when the question is framed as one of protecting “children” from sexual exploitation — how can one ever refuse to make the protections as strong as possible?)
Back to the Seventh Circuit’s analysis — I guess my asides were not so quick after all.
Given that it is “self-evident” that “protecting children from sexual exploitation and abuse is a governmental objective of critical importance” (15), the court was “hard-pressed to conclude that the plainly legitimate sweep of the statute is outweighed by the possibility that the production of some protected pornography may be chilled” (16). The court found no evidence that legitimate porn producers would be deterred by the strict-liability statute, and felt that the burdens of age-verification would be small. The court was also apparently confident that prosecutors would generally limit prosecution to defendants who “are either well-aware of the victim’s minority or failed to undertake any serious effort to ascertain the victim’s age” (17). (Query, then, how a mistake-of-age defense would impair the government’s compelling interest in protecting children.)