## Facts

- Todd M. Jadowski, age 35, had sexual intercourse with a 15-year-old girl.
- The girl told Jadowski and others that she was 19 years old, appeared to be at least 19, and showed an apparently official identification card indicating she was 19.
- The State charged Jadowski with sexual intercourse with a person under 16 under Wis. Stat. § 948.02(2) (1999–2000).
- The circuit court granted a defense motion to admit evidence of the complainant’s intentional misrepresentation of her age as an affirmative “fraud” defense.
- The court of appeals certified questions to the Wisconsin Supreme Court about whether misrepresentation is a defense and whether barring mistake-of-age defenses violates due process.

## Issues

1. Whether a minor victim’s intentional misrepresentation of age is a defense to a charge under Wis. Stat. § 948.02(2).
2. If not, whether Wis. Stat. §§ 939.23, 939.43(2), and 948.02(2) violate the Fourteenth Amendment by precluding a mistake-of-age defense and related evidence.

## Decision

- The Wisconsin Supreme Court reversed the circuit court’s order and remanded.
- The court held that § 948.02(2), read with §§ 939.23 and 939.43(2), precludes any affirmative defense based on the child’s misrepresentation of age.
- The court held the statutory scheme does not violate due process under the Fourteenth Amendment.
- The court ruled that evidence of the defendant’s belief about the victim’s age, and evidence of the victim’s misrepresentation of age offered to support a fraud-based defense, is inadmissible at the guilt-determination phase.

## Legal Principles

- For sexual intercourse with a person under 16 under Wis. Stat. § 948.02(2), the victim’s age is treated as a strict-liability element: the State must prove the victim’s age, but the defendant’s knowledge or reasonable belief about age is not a defense unless the legislature provides otherwise.
- Wis. Stat. § 939.43(2) reflects legislative intent to bar mistake-as-to-age defenses for specified sexual offenses; courts will not create a new “fraud-by-the-victim” defense inconsistent with that scheme.
- Excluding mistake-of-age defenses for sexual activity with minors is constitutionally permissible where the law rationally advances the State’s interest in protecting children and deterring adult sexual conduct with minors.
- Evidence is inadmissible at the guilt phase when offered solely to support a legally unavailable defense (here, the defendant’s belief about age and the complainant’s age misrepresentation).

## Conclusion

The Wisconsin Supreme Court held that a complainant’s intentional, plausible misrepresentation of being over the age of consent does not create a defense to § 948.02(2), and the legislature’s exclusion of mistake-of-age defenses in this context does not violate due process; accordingly, related belief-and-misrepresentation evidence cannot be used in the guilt-determination phase.


State v. Jadowski, 680 N.W.2d 810 (Wis. 2004)