State v. Robins
646 N.W.2d 287, 253 Wis. 2d 298, 2002 WI 65 (2002)
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Rule of Law:
A defendant can be convicted of attempted child enticement even when the intended victim is not an actual child but an adult law enforcement agent posing as a child, as legal impossibility is not a defense to an attempt charge. Furthermore, prosecuting a defendant for child enticement based on communications used to arrange the criminal act does not violate the First Amendment because the statute regulates criminal conduct, not protected speech.
Facts:
- Brian Robins, a 46-year-old man using the screen name 'WI4Kink,' engaged in online conversations in a chat room called 'Wisconsin M4M.'
- Robins began communicating with 'Benjml3,' who was actually Thomas Fassbender, a 42-year-old Department of Justice agent posing as a 13-year-old boy named Benjamin.
- Early in their conversations, 'Benjamin' explicitly told Robins that he was 13 years old.
- Their online chats and emails became sexually explicit, and Robins suggested they meet in person for sexual purposes.
- Robins proposed getting a motel room and acknowledged in the chats that what he was proposing was illegal.
- They arranged to meet on Saturday, February 5, 2000, at a Burger King in Little Chute, Wisconsin.
- On the morning of the planned meeting, Robins called a phone number provided by 'Benjamin' to finalize the arrangements.
- Robins then drove from his home in Wauwatosa to the Burger King in Little Chute, where he was arrested in the parking lot.
Procedural Posture:
- Brian Robins was charged with attempted child enticement in the Outagamie County Circuit Court, the trial court of first instance.
- Robins filed a motion to dismiss the complaint for lack of probable cause, which was not immediately decided.
- After a preliminary hearing, the trial court granted the State's motion for bindover.
- Following his arraignment, Robins filed a new motion to dismiss, alleging insufficient evidence for the bindover and challenging the statute's constitutionality.
- The circuit court denied the defendant's motions.
- The court of appeals, an intermediate appellate court, granted Robins' petition for leave to appeal the trial court's non-final orders.
- Before the court of appeals ruled, Robins petitioned the Wisconsin Supreme Court, the state's highest court, to bypass the court of appeals, and the petition was granted.
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Issue:
First, can a defendant be prosecuted for attempted child enticement under Wis. Stat. § 948.07 when the alleged victim is an adult law enforcement agent posing as a child online? Second, does the First Amendment prohibit a prosecution for attempted child enticement when the evidence of intent and furtherance of the crime consists of internet communications?
Opinions:
Majority - Sykes, J.
Yes as to the first question; No as to the second question. A defendant can be successfully prosecuted for attempted child enticement when the victim is an undercover agent, and such a prosecution does not violate the First Amendment. The fact that the victim was not a real child constitutes an 'extraneous factor' under the attempt statute, preventing the completion of the crime but not negating the attempt. Citing State v. Koenck, the court reasoned that the fictitiousness of the victim is the intervening factor that makes the crime an attempt. The court rejected the argument that this was an impermissible 'attempt to commit a strict liability crime' because child enticement requires a specific intent to commit one of the enumerated underlying sexual offenses, even if knowledge of the victim's age is not an element. Furthermore, the defense of legal impossibility is not available for an attempt charge, as established in State v. Kordas. The defendant's intent and unequivocal acts toward the commission of the crime are what matter, not the fortuitous circumstance that made completion impossible. Regarding the second issue, the court held that the First Amendment is not implicated because the child enticement statute regulates conduct, not speech. Citing Giboney v. Empire Storage, the court affirmed that speech used as an integral part of criminal conduct is not constitutionally protected. The defendant's internet communications were not the crime itself but were circumstantial evidence of his criminal intent and acts in furtherance of that intent.
Analysis:
This decision solidifies the legal validity of internet sting operations where law enforcement officers pose as minors to catch child predators. By affirming that the non-existence of a child victim is the 'extraneous factor' that makes the crime an attempt, the court eliminates the 'legal impossibility' defense in this context. This provides a clear legal pathway for prosecuting individuals who take substantial steps to meet with perceived minors for illegal purposes. The ruling also clarifies the boundary between protected speech and criminal conduct, establishing that using communication technology to plan and execute a crime is not shielded by the First Amendment, a precedent crucial for addressing crimes facilitated by the internet.
