884 N.W.2d 890
Minn. Ct. App.2016Background
- In Sept. 2014 Mark Moser (42) exchanged sexually explicit messages on Facebook with a person who identified herself as 16 but was actually 14; they never met in person.
- Moser repeatedly solicited sexual images and proposed in-person sexual contact.
- He was charged under Minn. Stat. § 609.352, subd. 2 (child solicitation); the statute expressly bars mistake-of-age as a defense.
- Moser moved to allow a mistake-of-age affirmative defense (or require the state to prove knowledge of age); the district court denied the motion.
- Moser stipulated to the state’s evidence to obtain appellate review of the pretrial ruling; the district court found him guilty, stayed sentencing, and placed him on probation.
- The Court of Appeals reversed, holding that as applied to Internet-only solicitation where the person represented being 16 and there was no face-to-face contact, forbidding a mistake-of-age defense violates substantive due process.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Moser) | Held |
|---|---|---|---|
| Whether due process requires allowing a mistake-of-age defense for Internet-only solicitation when the solicitant represented being ≥16 | The statute is constitutional and narrowly tailored; placing burden on adult to verify age protects children and need not allow mistake defense | Due process bars strict felony liability here; eliminating mistake-of-age denies right to fair trial and to present a full defense when solicitation was only online and the person claimed to be 16 | Reversed: as applied to Internet-only solicitation with no face-to-face contact and an assertion that the person was 16, the statute’s bar on mistake-of-age violates substantive due process; defendant must be allowed to raise the affirmative defense |
| Whether due process requires the state to prove knowledge of the victim’s age (i.e., mens rea) rather than merely permitting an affirmative defense | State argued mens rea for age is not required because statute contains an intent element (intent to engage in sexual conduct) and expressly eliminates mistake defense | Moser argued the statute imposes strict liability for a felony and thus violates due process; he asked that the state be required to prove knowledge of age | Court declined to require the state to prove knowledge of age as an element; instead it held that, in the limited factual scenario identified, due process requires permitting an affirmative mistake-of-age defense (burden of production required) |
Key Cases Cited
- Morissette v. United States, 342 U.S. 246 (1952) (traditional presumption that criminal liability requires a guilty mind)
- Staples v. United States, 511 U.S. 600 (1994) (presumption that statutes require proof of the facts that make conduct illegal; strict liability disfavored)
- United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) (age of performer is the crucial element separating lawful from wrongful conduct in child-pornography context)
- United States v. United States Gypsum Co., 438 U.S. 422 (1978) (states may enact strict-liability public-welfare offenses within constitutional limits)
- State v. Guminga, 395 N.W.2d 344 (Minn. 1986) (invalidating strict-liability criminal vicarious-liability statute on substantive due-process grounds)
- State v. Ndikum, 815 N.W.2d 816 (Minn. 2012) (discussing mens rea presumption and interpreting statutes in favor of requiring culpable mental state)
- In re Welfare of C.R.M., 611 N.W.2d 802 (Minn. 2000) (reading a mens rea element into a felony statute where legislative intent to eliminate it was not clear)
- State v. Koenig, 666 N.W.2d 366 (Minn. 2003) (legislative purpose to protect vulnerable children and eliminate mistake-of-age defense)