Gary C. Gilmour v. Rusty Rogerson, Warden, Iowa Medical Classification Center Thomas Miller, Attorney General of the State of Iowa
117 F.3d 368
8th Cir.
1997
Check Treatment

*2 independently He further claimed to have Before LOKEN and MORRIS by viewing ARNOLD, her Judges, and verified Cassandra’s SHEPPARD Circuit GUNN,** Judge. District driver’s license.

** WOLLE, GUNN, JR., R. F. 1. The HONORABLE CHARLES The HONORABLE GEORGE Judge District Court Judge of the United States United States District for the Eastern Dis- Chief Missouri, sitting by designation. of Iowa. Southern District trict of testified she later told ment

Cassandra because the statute is com- intended to that she wanted to obtain the Gilmour bat pornography child aimed at con- explicit photos taken of her nega- and the expression. duct rather than suggested tives. that she Gilmour could N.W.2d 597-98. The district court denied photographs agree she would have the petition appeals. Gilmour’s habeas and he *3 deliveryman. pizza Arrange- a seduce to have ments were made Cassandra order II. deliveryman pizza, at the meet door pose “Few areas of criminal law more diffi- nude, him and entice to have sex. culty than definition of the mens proper plan carried out. how- This rea required any particular crime.” ever, to return photographs refused Bailey, United States 394, 403, 444 U.S. also had sex him. unless Cassandra 624, 631, (1980). 100 occurred, S.Ct. 62 L.Ed.2d 575 That also and Gilmour still re- general in country, this photographs. at least some of the infamous crimes are tained of mens rea— requiring proof construed as jury pandering, The convicted Gilmour of the “concurrence of an evil-meaning mind appeal, not at issue on this conviction and evil-doing with an hand” —even when the violating also convicted him of Iowa Code defining statutes those crimes are silent on 728.12(1). § That statute defines sexual ex- States, Morissette v. United question. ploitation any person of a minor to include 246, 251, 240, 243-44, 342 72 S.Ct. who (1952). L.Ed. 288 In construing criminal uses, induces, employs, persuades, entices, protect statutes that children from sexual coerces, knowingly permits, or otherwise however, predators, age long- child’s engage prohibited causes a minor to in a exception general established to the rule that act or in the prohib- sexual simulation of a of mens rea proof required; “the victim’s knows, person act if the ited sexual age actual despite [is] determinative defen- know, reason to or intends that the act or dant’s girl reasonable belief that had photographed, simulated act of consent.” Id. at 251 n. age 8, reached the filmed, preserved or otherwise in a nega- Thus, at 244 n. 8. absent First tive, slide, book, magazine, print or other considerations, Amendment it seems clear or visual medium. may constitutionally that Iowa define crimi- trial, Prior again appeal, to his and on direct exploitation nal sexual of a child so as to Gilmour argued that this statute must be preclude inquiry into whether defendant be- knowledge read to include of the age minor’s lieved the child anwas adult.2 as an of the element offense order to save it from infirmity. First Amendment Other- Turning to those First Amendment consid- wise, reasoned, Gilmour the statute would erations, long-standing we Supreme find impermissibly expressive activity pro- chill with the mens rea Court concern required Amendment, namely, tected the First cases, obscenity where conduct is criminal if production pornography. of adult Rejecting it involves obscene materials but is constitu- contention, the trial court excluded all tionally protected if it early does not. In an mistakenly evidence that Gilmour believed ease, obscenity the Court struck down a state Cassandra to be an adult. statute that made strictly booksellers liable affirmed, Supreme possessing writings. Iowa obscene con- “[I]f (i) cluding knowledge criminally bookseller is is not an hable without knowl- edge element of the crime of exploitation book],” [of contents an obscene (ii) minor, explained, mistake is not a the Court “he will tend to restrict defense, (iii) construed, so inspected; the books he sells to those he has 728.12(1) § violate the First imposed Amend- and thus the State will have a ra- course, statute, legisla dimension, Of were this a federal tions are not of constitutional we tive silence on this mens rea issue would raise are bound Court’s con- interpretive questions such as those debated in struction of the state statute. See N.A.A.C.P.v. Liparota v. States, 419, Button, 415, 432, 328, 337-38, United 471 U.S. 105 S.Ct. 371 U.S. (1985). (1963). ques- 85 L.Ed.2d 434 But those Ferber, logical harm to the child victims. See of constitution- upon the distribution strietion 757-59, 102 S.Ct. at 3354-56. literature.” 458 U.S. as obscene ally protected well 147, 153, photographing 80 But the of nude adults en- California, 361 U.S. Smith (1959). gaged sexually explicit As conduct retains 4 L.Ed.2d cases, protection constitutional unless in fact in later First Amendment defined Indeed, most, if the is satisfied de- however offensive to mens rea obscene. of the obscene knows the contents of such materials is fendant the sale and distribution nature”; Therefore, their “character and large, thriving industry. Gilm- materials defense, they legally are obscene. know argues, he need not absent a our States, 123- Hamling v. United pro- chill the Iowa statute will 2910-11, L.Ed.2d pornography photograph- tected adult from (1974). theory, young prevail To on this ing adults. *4 over- must show that the statute’s Gilmour Ferber, comprehensively ad- the Court Ferber, 458 U.S. at breadth is “substantial.” subject pornography. of child A the dressed 3361; 769, 102 see Broadrick v. S.Ct. depict- films shopkeeper sold two Manhattan Oklahoma, masturbating to an under- young boys ing (1973). Analysis ques- of this L.Ed.2d 830 was convicted of police officer. He cover background, re- requires, tion as additional child, by a performance promoting post-Fer&er of two relevant decisions. view performance ... “any to include defined by a child less sexual conduct which includes entirely appeal, relies almost On Gilmour Ferber, 458 U.S. years age.” of than sixteen v. United States Dist. on United States grant- The at 3351. Court (9th Cir.1988). Court, In that 858 F.2d 534 constitutionality the ed certiorari to consider case, government sought a writ of man- the exploitation Noting that of statute. prohibiting the district court from damus pornography production of children sixteen-year-old admitting evidence that a pervasive, de- harmful and the Court is both appear pornographic in a movie girl hired ex- prevention that of sexual “[t]he clared a massive fraud on the perpetrated had ploitation abuse of children constitutes and industry” by passing “adult entertainment objective surpassing impor- government was a off as an adult. At issue herself at 3355. The Id. at tance.” 2251(a), statute, § which federal 18 U.S.C. unpro- pornography is held that child Court production depict- materials prohibits the general- the First Amendment tected sexually explicit in ac- ing engaged a minor pornography extending ly child as defined knows that the visual tivity if the defendant beyond to include “works obscene materials transported in commerce. depiction will be depict [suitably and de- visually limited that, panel held al- A Ninth Circuit divided by children below a sexual conduct scribed] 2251(a) provide for a mis- though § does not at 3358. specified age.” Id. at defense, Amendment take-of-age the First that the New York statute The Court held Other- writing one into the statute. requires may be substantially overbroad and was not wise, producers pornography of adult knowingly distribute applied to those who pro- certainly from will almost be deterred pornography. child youthful- depicting ducing such materials pornography to include By defining child actors; may have looking such actors adult photographs that sexually explicit films and difficulty finding producers in considerable obscene, the stage set the are not Ferber them; wish- audiences willing [and] to cast that in in this case. Gilmour concedes issue featuring such actors ing view films produced un- he photographing Cassandra opportunity. the would be denied not pornography. He does protected child dissenting judge con- at 540. The banning the 858 F.2d purposes behind challenge the important the statute serves cluded that pornography reduce production child —to interest, legitimate speech little government encourage sexual ex- financial incentives pornography of adult production is chilled and to deter ploitation of children young-looking accurately ascertain psycho- must depictions that exacerbate of visual 2251(a) sexually exploited § is sonable the therefore consti- belief that vic- actor’s tim inwas fact an adult is a defense to the written. tutional as charge. requires question weighing This the Court, Following District prohibiting unprotected State’s interest Video. At issue Court decided X-Citement conduct, Gilmour’s; precision such as pornography child was another federal stat- unprotected with which the State isolated 2252(a), ute, prohibits, § which 18 U.S.C. activity; resulting from protected and the shipping pornogra- child example, knowingly protected extent to which First Amendment question, as phy in commerce. (chilled) activity pro- will be deterred it, give was whether to explained reasons, hibition. For compa- three we grammatical “most natural read- statute its ny panel majority District Court ing,” “knowingly” the word which case statute, ap- conclude that only the the of- modifies plied constitutionally not is in- shipped be fending pornography in in- child firm. Noting that terstate commerce. this con- produce results struction “would that were First, only is State’s interest odd, absurd,” positively merely but banning exploitation the sexual of children “knowingly” Court concluded instead very strong, but the defense crime, including modifies all elements directly contrary to that interest. As depicted in porno- of the minor typically proved will defense *5 69, graphic at 115 film. 513 U.S. at S.Ct. willing, evidence that the minor was a issue, discussing 467. In this the Court ex- perhaps participant producing deceitful 2251(a), § pressly noted that the statute at photos. pornographic films The State Court, lacks this issue District scienter may legitimately protect children from self- citing the footnote in requirement, to which reflecting youthful destructive decisions majority panel the Ninth Circuit held poor them, judgment eyes that makes prove government need scienter as law, “beneath consent.” One 5, U.S. at 76 n. of its case. 513 115 argue sexually can sophisticated seven- ignoring signifi- S.Ct. at 471 n. 5. In the more teen-year-olds like Cassandra do not or need holding cant in District Court —that mistake- protection, even do not such deserve but that constitutionally of-age is mandated de- legislative question. See United States to apparent fense —it seems us that the Su- Freeman, (8th 1290, Cir.), 808 F.2d 1292 preme intentionally avoided that issue. denied, 922, 1384, cert. 480 U.S. Thus, First whether the Amendment man- (1987). only L.Ed.2d 697 We deal here mistake-of-age dates use of the defense in a the constitutional limits on the power State’s pornography prosecution child under federal protect. discourag The interest in State’s open question or state law remains out- ing posing minors from as adults eliminat side the Ninth Circuit. ing mistake-of-age defense is entitled

great weight. III. Second, the Iowa statute as is construed illustrates, As X-Citement Video the mens aimed at pornography, child question especially complex rea it rather than because those who distribute the result- may ing pornographic affect each element crime. For materials. See example, the Iowa statute at issue dealing here has N.W.2d at When 598. with child explicit two guilty pornography, mens rea elements. To be liability strict criminal violation, entice, of a actively markedly chilling one must produc- different effect on coerce, permit knowingly opposed or a minor to en- ers as of that pornog- distributors act, gage distributors, prohibited raphy. and one Unlike most the sexual- know, know, ly must exploitive producer directly have reason to or intend deals with the may victim, activity photographed. statutory rapist illicit be child like the who has Gilmour is for an arguing traditionally additional a mistake-of-age mens been denied rea prevent factor to In prudent statute from defense. this information chilling protected speech photographer producer readily substantial may or movie —rea- independently legitimately protects confirm the of virtual a state statute that chil- ly every young-looking against sexually exploitive model. dren See Outmez conduct State, 20, 870, guine substantially 335 Md. 641 A.2d 878 must be struck down as over- (1994). doctrine, broad. The overbreadth “a limited outset, one at the attenuates as the other- Prior Court decisions and com- unprotected wise behavior that it forbids the ments on these First Amendment mens rea ‘pure speech’ State sanction moves from always chilling issues have focused on the scope toward conduct falls within [that] broadly exposing pornography effects of or of otherwise valid criminal laws that reflect obscenity liability. distributors to criminal legitimate state interests in maintaining example, prosecution For Smith involved the comprehensive harmful, controls over consti- carrying of a bookseller for obscene litera- Broadrick, tutionally unprotected conduct.” general ture his store. Ferber’s reference 413 U.S. at “some element of scienter” was context of statute that criminalized the weigh we must the statute’s production pornog- chilling and distribution of child against “plainly effect its legitimate raphy. prosecution Ohio, sweep.” X-Citement Video was a See Osborne v. producers, movie but the federal statute at well; thus, (1990); Broadrick,

issue extended to distributors as required the Court was to construe Although the stat- at 2917-18. issues of this kind are rarely doubt, ute’s mens rea element in this con- broader free from we conclude that text, 728.12(1) doing expressly § and in so it noted Iowa Code constitutionally applied though to Gilmour even he was not pornography pro-

in the criminalization of afforded a defense. Accord- perpetrator duction ... confronts the ingly, judgment of the district court is underage personally victim rea- affirmed. sonably required to ascertain that vic- age. opportunity

tim’s for reasonable *6 ARNOLD, MORRIS SHEPPARD Circuit significantly mistake as to increases Judge, dissenting. once the victim is to a reduced visual de- piction, questioning by unavailable for view, my In the court has failed to afford distributor or receiver. certain erotic materials the First Amend- protection they refer, ment (a deserve. I 2, 513 U.S. at 72 n. 115 n. 2 469 course, sexually explicit photo- of 5). point the Court reiterated in note Given graphs of men and women who are under that, background, this we believe if faced sexually explicit but photographs of ease, with the issue in this the Court would men and women who not. Though are denying mistake-of-age conclude that de- appropriately court adverts to the pornography producers fense to child Court’s caution that a statute like the one substantially protected expression. chill under consideration here “would raise seri- Third, chilling effect on which Gilmour doubts,” ous constitutional it nevertheless re- young-looking relies —the reluctance to use solves those doubts in favor of the of State sexually explicit in pornogra- models adult so, doing mainly Iowa. In the court relies on phy qualitatively also weak. The First —is which, believe, propositions, three none of I protection Amendment accorded to adult properly dispose can serve to of the case in pornography “is not as extensive as that suggests. the manner that the court speech.” accorded other X-Citement Vid- eo, (dissent- 84, point 513 at 474 U.S. 115 S.Ct. The court makes the that a mistake- Scalia, ing opinion citing plu- of-age contrary of Justice defense is to the state’s inter- opinion rality Young protecting in v. in American Mini est minors from the conse- Theatres, Inc., 50, 61, 2440, quences 427 U.S. 96 S.Ct. of their own ill-conceived decisions. 2448, (1976), rationale, support L.Ed.2d 310 and other of this the court makes cases). worthy Although protection, typi- of its the asseveration that “the defense will periphery cally [my emphasis] proved by status on the relative of the First be evidence weighing willing, perhaps Amendment is relevant in whether that the minor was a deceit- all, importantly, the court makes ex- First of a minor’s will- Most participant.” ful traordinary right assertion that the completely irrelevant to a be ingness would unclear, says by will be chilled I defendant am more- mistake-of-age defense. “qualitatively is weak.” The court statute over, find the data to the court could where legal in purports principle to find this assumption that minors in- support the dissenting of Mr. Sealia in opinion Justice typically kinds of cases are in these volved Video, Inc., United States X-Citement properly crafted A deceitful. U.S. 130 L.Ed.2d 372 case, impose defense, would doubtless any in (1994). dissenting opinion place A is an odd inquiry on duties defen- some affirmative applicable legal propo at best to for an look it, rely on and it seems seeking to dants case, any posits sition. In the court an inter always appro- almost likely that it would pretation Young v. American Mini The jury that a defendant priate to instruct atres, Inc., 50, 61, rely igno- his or her deliberate on cannot (1976), the ease claiming the benefit of such a rance when Young say will not in fact bear. does not a mistake-of-age How such defense defense. that the First Amendment is less solicitous of measurably encourage is deeeitfulness would nonobscene, sexually explicit materials than event, and, any in the state’s mystery, protected speech. it is of other kinds them- protecting in minors from interest that, says it in What is the circumstances of weighty less as their deceit- selves becomes nothing justify there was “the typical. less fulness becomes adjudi- exceptional approach to constitutional the court draws be- The distinction recognized cation in cases like Dombrowski materials and its tween of erotic Pfister, legal significance. is without distributors pas- L.Ed.2d 22 in [1965].” producer that a some measure The fact sage point speaking was to the of whether (because rapist they statutory both “like” a injunction extraordinary remedy of an directly young girl woman or deal against of a state stat- further enforcement imperfect analogy, for an question) makes appropriate ute was it because was substan- right is no constitutional because there overbroad, tially type not whether sexual intercourse with engage consensual speech that was chilled was somehow less presumably, spouse), anyone (except, one’s worthy protection. of First Amendment pictures: right to take erotic but there proposition, being This last far from en- forbidding fornication are not un- Statutes Young, our dorsed the Court court constitutional, prohibiting but statutes the maintains, specifically rejected fact *7 nonobscene, sexually explicit production of Language ap- it. to that effect does indeed providing Not a mistake-of- material are. 70-71, pear Young, in at U.S. person engages who age defense to 2452-53, opinion but in a of the Court’s minor, therefore, sexual acts with a does explicitly in which Mr. Justice Powell refused produce negative neighborhood substantial join and which therefore did command right, effects on a constitutional enumerated majority n. of the Court. See id. at 73 otherwise; pro- or and the First Amendment S.Ct. at 2453 n. where Mr. Justice Powell probably explicit, expansive, the most vides reach, opines that he “not think does we need protections against an intru- pervasive with, am I agree holding nor inclined to Rights Bill government that our of con- sive (and discussion) supporting in Part III that true, moreover, the court tains. If it is as nonobscene, erotic materials be treated opines, pru- information “this differently princi- under First Amendment may readily ... ... con- photographer dent ples protected expres- from other forms of virtually age every young-looking firm the of id., goes say, sion.” He on to that he model,” claiming that then a defendant he or I “not consider the conclusions Part of the reasonably she mistook a model’s will opinion depend on between distinctions hardly prevail, ever and the dire conse- protected speech.” simply Our court mis- quences predicts that the court would follow Young provides authority reads no other evaporate right such a were allowed at stake here defense its conclusion completely argument. “qualitatively in the face of its own weak.” seriously the Su Because I would take admonition X-Citement

preme Court’s America, Appellee, of UNITED STATES Video, 472, that a S.Ct. at “completely bereft of a scien- statute that is perform ter as to PATRICK, Appellant. David Lee constitutional raise serious ers would doubts,” apparent that the and because it is No. 96-4222. substantially discourage will Iowa statute speech protected by the First Amend that is Appeals, of United States Court ment, I it void. I believe that the would hold Eighth Circuit. speech rights is statute’s burden on free substantial, employing minors for because Apr. 1997. Submitted days subject purposes is these July anxiety, anxiety Decided great public deal merely accused of stigmatizes those who are very way. A conviction for a

it in a severe moreover, here, charged

crime like the one certainly significant

will almost cause hard

ship by depriving those convicted of their

liberty period for a considerable of time and

by creating lasting for them be difficulties require register them to

cause of laws following release.

with local authorities disabilities will

These kinds of burdensome

surely many producers protected cause their First Amend

erotic matter to forfeit precisely rights,

ment and this is the kind of ought

forfeiture that courts to be assiduous give citizens the means avoid.

I is unconstitu- would hold that the statute allow, it at a mini-

tional because does not

mum, prove a defendant to that he or she

reasonably person he or she believed

engaged participate depiction activity

nonobscene sexual was not a minor. question

It seems to me that there is a real if the

whether the Constitution is satisfied prove

defendant must such a defense evidence, convincing suggested

clear States v. Dist. Court Cent. United *8 (9th Cir.1988). Cal.,

Dist. 858 F.2d But since the court is not inclined to hold any

that mistake of constitutional

relevance at all in this I do not feel it point,

necessary along to discuss this fully adequate

some others that a consider- require. in fact

ation of the case would respectfully

I dissent reasons

adumbrated.