COURT OF APPEALS DECISION IN MARQUETTE COUNTY INTERNET CRIMES AGAINST CHILDREN CASE ENABLES CRIMINAL PROSECUTION TO MOVE FORWARD
Thursday, October 25, 2007
Court Rules That Written Descriptions Sent In An Internet Chatroom May Fall Within Statute Making It A Felony To Expose A Child To Harmful Sexual Material
MADISON - A state court of appeals held today that Wisconsin law prohibits exposing a child to written descriptions or narrative accounts of certain sexually explicit or violent activity. The decision in State of Wisconsin v. Shawn B. Ebersold reversed a Marquette County circuit court order holding that the law applied only to oral communications. The decision will allow the State to continue its prosecution of Ebersold.
Attorney General J.B. Van Hollen, whose office represented the state before the appellate court, applauded today's decision. "This decision reinforces the legislature's plain intent when it made it a felony to expose children to harmful sexual material," said Van Hollen. "Sex predators use modern technology to commit their crimes, and today's decision makes it clear that Wisconsin prosecutors have a powerful weapon in the statutes to fight against on-line child sexual predators who use chat rooms to prey on Wisconsin's children. I'm extremely grateful that the Wisconsin Court of Appeals adopted our interpretation of state law."
Ebersold, a high school teacher, was charged in Marquette County circuit court with one count of exposing a child to harmful descriptions or narrative accounts in violation of Wis. Stat. 948.11(2)(am). That statute prohibits the verbal communication, by any means, of certain sexually explicit or violent activity.
The State alleged that Ebersold sent harmful messages of a sexually explicit nature to one of his students in an Internet chatroom. He asked the circuit court to dismiss the charge, claiming he did not "verbally" communicate with the student when he sent her written messages over the Internet. In Ebersold's view, the state legislature, by using the term "verbally," intended to limit the scope of the statute to only oral communications. He argued that the written Internet chatroom messages involved here were outside the scope of that statute. The circuit court agreed and dismissed the charge.
The State, through the Wisconsin Department of Justice, appealed. In a 3-0 decision, the Wisconsin Court of Appeals adopted the State's interpretation of the statute and concluded that the statute applies to written communications as well as oral communications. The court found that, as used in the statute, the term "'verbally' is most reasonably read here as proscribing communication to children of harmful matter in word, whether oral or written." The court also held that the statute gave fair notice that it prohibits written communication to children of sexually explicit or violent activity.
The allegations in the complaint and described above have not yet been proven at a trial. Ebersold is presumed innocent, and the State bears the burden of proving him guilty beyond a reasonable doubt.
The case is being prosecuted at the trial level by Marquette County District Attorney Richard Dufour. The State was represented in the Wisconsin Court of Appeals by Assistant Attorney General Daniel J. O'Brien.
A copy of the Wisconsin Court of Appeals' decision and opinion is available at:
http://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=30703
