Could Maine constitutionally make 'the depicted minor was not real or not a minor' an affirmative defense the defendant has to prove in child-pornography cases?

Plain-English summary

LD 548 was a 2005 Maine bill aimed at making child-pornography prosecutions easier in two ways. Representative Janet Mills (later a Maine governor) asked the Attorney General whether either proposal raised constitutional problems. The AG found that one of them did, and the other had a separate evidentiary issue.

Proposal 1: Add an affirmative defense. Maine's two main child-pornography statutes, 17-A M.R.S.A. §§ 283 (dissemination) and 284 (possession), each define their crimes by reference to "an actual person" who is "a minor." LD 548 would have created a new § 286 making it an affirmative defense (one the defendant has to prove by a preponderance) that "the alleged minor depicted in the sexually explicit material is not an actual person or is not a minor."

The AG concluded this was unconstitutional. Federal due process under In re Winship, 397 U.S. 358 (1970), requires the State to prove every element of a crime beyond a reasonable doubt. Maine's Criminal Code says the same in 17-A M.R.S.A. § 32. The two facts the affirmative defense would put on the defendant ("actual person" and "minor") are already statutory elements of the underlying crimes. The Legislature cannot have it both ways: a fact cannot simultaneously be an element of a crime (which the State must prove) and the basis for an affirmative defense (which the defendant must disprove). Trying to do both produces a contradictory jury instruction and shifts a burden the Constitution puts on the State. The AG also noted that, while a state can sometimes redefine a crime so a former element becomes an affirmative defense (compare Patterson v. New York, 432 U.S. 197 (1977), with Mullaney v. Wilbur, 421 U.S. 684 (1975)), that re-engineering does not appear feasible here given how Maine's statute is structured.

The AG also noted Maine's current statute had been unaffected by Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), because Maine, unlike the federal statute, criminalizes only depictions of actual children, not virtual ones.

Proposal 2: Raise the Class D age ceiling from "under 14" to "under 16." Maine's possession statute, 17-A M.R.S.A. § 284(1)(A), graded the offense by the depicted minor's age: Class C for very young victims, Class D for older minors. LD 548 would have raised the Class D age ceiling so it covered 14 and 15 year olds as well. (The Class C age ceiling, "under 12," was unchanged.)

The AG identified a constitutional concern not with the age change itself but with how it interacted with subsection 3, which permits a fact-finder to infer the depicted person's age from the depiction itself, supported optionally by competent medical or expert testimony. Federal due process under Leary v. United States, 395 U.S. 6 (1969), requires a rational connection between the basic fact (the depiction) and the inferred fact (age). The Maine Rule of Evidence 303(b) requires a trial court, before submitting a permissible-inference question to the jury, to find that "a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find ... the inferred fact ... beyond a reasonable doubt." Visually inferring that a depicted person is under 12 is generally tractable. Visually inferring that the same person is under 16 (versus 16, 17, or 18) is much harder. The AG flagged that this was a legitimate Rule 303(b) and due-process problem if the bill passed: in cases involving older adolescents, the inference might not satisfy the rational-connection test, and the State could be left without a viable means of proving age.

Conversely, if the actual point of raising the age ceiling was to make it easier to prove that the victim was under 14 (because the State would only need to distinguish a victim from someone aged 16 or older, an arguably easier task), the inference might be enhanced rather than weakened. The AG flagged both possibilities.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The constitutional issue at the heart of the affirmative-defense analysis dates to In re Winship, where the U.S. Supreme Court held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Mullaney and Patterson then explored how far a state can go in moving the line between elements (state's burden) and affirmative defenses (defendant's burden). The summary version: a state can sometimes redefine a crime so a former element becomes an affirmative defense, but it cannot leave the element in place and also impose an affirmative-defense burden on the same fact. That is what LD 548 would have done.

Maine's Criminal Code expressly codifies the Winship rule. Section 32 of Title 17-A requires the State to prove every element beyond a reasonable doubt. Section 101(2) sets the burden for affirmative defenses (preponderance of the evidence by the defendant). LD 548 would have triggered these provisions in conflict with each other, which is why the AG saw a structural rather than just academic problem.

The age-inference analysis depends on M.R.Evid. 303(b)'s threshold test. A permissible inference can be submitted to the jury only if a reasonable juror could find the inferred fact beyond a reasonable doubt from the basic fact. Photographs and videos do tend to allow age inference for very young or post-pubescent extremes, but the closer the depicted person is to the age threshold (especially when the threshold is 16 or 18), the weaker the inference. The AG's concern was not that the new age ceiling was per se unconstitutional, but that it set up cases the existing inference rule might not be able to support.

Common questions

Q: Why can't a legislature just say "this is now an affirmative defense" and shift the burden?
A: Sometimes it can, by genuinely redefining the crime so the disputed fact is no longer an element. Patterson v. New York allowed New York to make extreme emotional disturbance an affirmative defense to murder, because the elements of murder did not include its absence. Mullaney v. Wilbur struck down Maine's earlier attempt to make the absence of heat-of-passion an affirmative defense, because malice (and thus the absence of heat-of-passion) was treated as an element. The line is whether the legislature has restructured the offense or just shifted a burden on a still-existing element. LD 548 fell on the unconstitutional side because it left "actual person" and "minor" as elements while also requiring the defendant to disprove them.

Q: Why isn't Maine's child-pornography statute affected by Ashcroft v. Free Speech Coalition?
A: Free Speech Coalition struck down a federal statute (18 U.S.C. § 2256(8)(B)) that criminalized "virtual" child pornography depicting fictitious minors. Maine's statute is narrower: it criminalizes only depictions of an actual child. Because the depicted person being real is part of the Maine offense, the First Amendment overbreadth ruling in Free Speech Coalition does not reach Maine's statute.

Q: Did the AG say the age-ceiling change was unconstitutional?
A: Not categorically. The AG flagged that Rule 303(b) could create proof problems in cases where the depicted person was an older adolescent, because visually inferring whether someone is 15 versus 16 is much harder than inferring whether someone is 8 versus 18. Whether the inference would survive review depends on the specific case.

Q: What does Maine's Rule 303(b) actually do?
A: It is a gatekeeping rule. Before a trial court can let a jury rely on a statutory permissible inference, the court has to find that a reasonable juror could find the inferred fact beyond a reasonable doubt from the basic facts presented. If the State's evidence cannot support that finding, the jury cannot use the inference, and the prosecution has to prove the underlying fact directly.

Q: What happened to LD 548?
A: This opinion advised the Legislature; the disposition of the bill is not part of the opinion. Researchers should check Maine legislative history.

Citations and references

Statutes:
- 17-A M.R.S.A. § 32 (state's burden of proof)
- 17-A M.R.S.A. § 101(2) (affirmative defense designation)
- 17-A M.R.S.A. § 283 (dissemination of sexually explicit material)
- 17-A M.R.S.A. § 284 (possession of sexually explicit material)
- 17-A M.R.S.A. § 2(20) (definition of person)

Rule:
- M.R.Evid. 303(b) (permissible inference threshold)

Cases:
- In re Winship, 397 U.S. 358 (1970), state must prove every element beyond a reasonable doubt
- Patterson v. New York, 432 U.S. 197 (1977), permissible burden-shifting through redefinition
- Mullaney v. Wilbur, 421 U.S. 684 (1975), impermissible burden-shifting on element
- Leary v. United States, 395 U.S. 6 (1969), rational-connection test for inferences
- Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), virtual child pornography
- State v. Jervis, 384 A.2d 45 (Me. 1978)
- State v. Kim, 2001 ME 99, 773 A.2d 1051, instructions on elements
- State v. McNally, 443 A.2d 56 (Me. 1982), Maine application of Leary

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/2005/ag_20050510.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

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05-5

May 10, 2005

Honorable Janet T. Mills
House of Representatives
Two State House Station
Augusta, ME 04333-0002

RE: L.D. 548 (122nd Legis. 2005)

Dear Representative Mills:

Attorney General Rowe has asked that I respond to your letter of April 19, 2005 in which you raise questions about constitutional and other issues regarding L.D. 548, "An Act to Enhance the Prosecution of Child Pornography Cases." L.D. 548 (hereinafter "the bill") contains two separate proposals. I will address each in turn.

Proposed Affirmative Defenses to the Crimes of Dissemination of Sexually Explicit Material and Possession of Sexually Explicit Material

The bill would create a new affirmative defense for both the current crimes of dissemination of sexually explicit material, 17-A M.R.S.A. § 283(1) (Supp. 2004), and possession of sexually explicit material, 17-A M.R.S.A. § 284(1) (Supp. 2004). See Subsection 3 of the bill. Proposed new section 286 creating the affirmative defenses provides as follows:

§ 286. Affirmative defense

It is an affirmative defense to section 283 or section 284 that the alleged minor depicted in the sexually explicit material is not an actual person or is not a minor.

When in the Maine Criminal Code, as here,

... the statute explicitly designates a matter as an affirmative defense, the matter so designated must be proved by the defendant by a preponderance of the evidence.

17-A M.R.S.A. § 101(2) (1983). Consequently, proposed section 286 would require that at the trial of a defendant charged with some form of the crimes of dissemination of sexually explicit material or possession of sexually explicit material, it would be incumbent upon a defendant who chooses to use the affirmative defense to demonstrate to the jury by a preponderance of the evidence that the person depicted in the sexually explicit material is either not in fact an actual person, i.e., not a real human being (17-A M.R.S.A. § 2(20) (1983)), or is not in fact a minor.

Turning to the two crimes to which this affirmative defense is to have application, namely, sections 283 and 284 of the Criminal Code, each form of these two substantive crimes as defined by the Maine Legislature includes as a factual "element" that the victim depicted in the sexually explicit material be an actual person and that person be under a specified age. The Due Process Clause of the Fifth Amendment to the United States Constitution requires that the State of Maine prove each element of every crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970); State v. Jervis, 384 A.2d 45, 47 (Me. 1978). The Maine Criminal Code expressly requires nothing less. 17-A M.R.S.A. § 32 (1983); see also State v. Kim, 2001 ME 99, ¶ 9, 773 A.2d 1051, 1055 ("... the State bears the burden of proving each element of the charge beyond a reasonable doubt, and the court must instruct the jury on the elements of the crime and the State's burden of proof"). Where, as here, the Legislature has chosen to make the facts of "actual person" and "age" elements of both crimes and thus facts relative to which the State of Maine must bear the full burden of persuasion, the proposed affirmative defense seeking to place upon the defendant a burden to disprove these same facts is an apparent violation of federal due process and wholly inconsistent with the Maine Criminal Code.

[Footnote 1: Additionally, any jury instructions provided by a trial court under these circumstances would be contradictory and confusing, since a trial court would presumably be instructing the jury that, on the one hand, the State of Maine has the burden to prove the two facts of "actual person" and "age" beyond a reasonable doubt while, on the other hand, the defendant has the burden of disproving the existence of one or both of these same two facts by a preponderance of the evidence.]

[Footnote 2: Due process requirements are the same under the Maine and United States Constitutions. State v. Anderson, 1999 ME 18, ¶ 9, 724 A.2d 1231, 1234; see also State v. Smith, 366 A.2d 865, 868 (Me. 1976) (due process requirements relative to a statutory inference are the same under both constitutions).]

[Footnote 3: Although it is possible that a state might, within constitutional limitations, modify its statutory definition of a crime so as to convert what was previously a fact element into an affirmative defense, given the two facts at issue that does not appear feasible here. Compare, e.g., Patterson v. New York, 432 U.S. 197 (1977) with Mullaney v. Wilbur, 421 U.S. 684 (1975) (in the context of the crime of murder and the affirmative defense to murder of extreme emotional distress).]

Both of the factual elements at issue here are "elements of the crime" because they are an express mandate of section 32 of the Criminal Code. Or stated in a slightly different manner, the Maine Legislature cannot, consistent with federal due process, and section 32, treat a fact simultaneously as both an element of a crime and as the basis for an affirmative defense to that crime.

[Footnote 4: Unlike the federal counterpart that criminalized sexually explicit material depicting virtual children (18 U.S.C. § 2256(8)(B)) as well as actual children (18 U.S.C. § 2256(8)(A)), Maine's crimes require that the depiction be of an actual child. Hence, when the United States Supreme Court struck down the Federal virtual children provision as substantially overbroad and in violation of the First Amendment, Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), Maine's crimes were unaffected by that decision.]

[Footnote 5: Although both section 283 and 284 require that the sexually explicit material depict "a minor," the elementally required actual age is not uniform. For purposes of paragraphs A and B of subsection 1 of section 283, the "minor" must be "a person who has not attained 18 years of age." 17-A M.R.S.A. § 281(2). For purposes of paragraphs C and D of subsection 1 of section 283, the "minor" must be "less than 12 years of age." For purposes of paragraphs A and B of subsection 1 of section 284, the "minor" must not have "in fact attained 14 years of age." For purposes of paragraphs C and D of subsection 1 of section 284, the "minor" must not have "in fact attained 12 years of age."]

Proposed Victim Age Change in the Class D Form of the Crime of Possession of Sexually Explicit Material

The bill would also raise the age of a victim depicted in the sexually explicit material from "under 14 years of age" to "under 16 years of age" as to the Class D form of the crime of possession of sexually explicit material, 17-A M.R.S.A. § 284(1)(A) (Supp. 2004). See Sections 1 and 2 of the bill. Although not immediately apparent from the bill itself, elevation of the statutory age ceiling by two years to include 14 and 15 year-old victims potentially impacts upon the current statutory permissive inference contained in subsection 3 of section 284. Subsection 3 provides as follows:

The age of the person depicted may be reasonably inferred from the depiction. Competent medical evidence or other expert testimony may be used to establish the age of the person depicted. (Emphasis supplied)

Pursuant to subsection 3, the basic fact to be inferred is the age of the victim depicted in the sexually explicit material. The permissible inference is that such age can be inferred from the depiction itself.

Two preliminary points need to be identified. First, as a matter of federal due process, in any criminal case a rational connection must exist between the basic fact and the presumed or inferred fact. Leary v. United States, 395 U.S. 6, 38 (1969); see also State v. McNally, 443 A.2d 56, 59 (Me. 1982). Second, as a matter of evidentiary rule, submission of the question of the existence of a presumed or inferred fact to a jury is made contingent upon a trial court finding that "a reasonable juror on the evidence as a whole, including the evidence of the basic facts, could find ... the presumed fact [or inferred fact] ... beyond a reasonable doubt." M.R.Evid. 303(b); see also McNally, 443 A.2d at 59, n. 3 and 4; Field & Murray, Maine Evidence §§ 303.2 and 303.4 at 80 and 82.

Applying both the federal due process requirement and Rule 303(b) to the statutory permissible inference in subsection 3, the validity and evidentiary weight of the inference is arguably strongest when the depiction is that of a prepubescent child or a child approaching puberty and arguably weakest when the depiction is that of an adolescent approaching adulthood. If the core impetus for the proposed inclusion of both 14 and 15 year-old minors is to criminalize and prosecute depictions relative to these two added age groups, the application of subsection 3 to such cases is questionable, particularly in light of Rule 303(b) given the difficulty of inferring the age of an adolescent approaching adulthood. On the other hand, if the core impetus for the age ceiling change is instead to facilitate successful prosecutions relative to children under 14, as currently, the application of subsection 3 appears enhanced, since it eliminates the current requirement that the State prove beyond a reasonable doubt that the depicted minor be in fact under 14, i.e., not yet 14, 15 or approaching 16. Instead, in proving the minor to be under 14, the State need only distinguish the under 14 victim from a 16 or older minor, arguably an easier task under subsection 3.

W.R. Stokes