AGO 05-5.

• Case Date: May 10, 2005
• Court: Maine

Maine Attorney General Opinions 2005. AGO 05-5. STATE OF MAINEOFFICE OF THE ATTORNEY GENERAL 6 STATE HOUSE STATION AUGUSTA, MAINE 04333-0006 May 10, 200505-5Honorable Janet T. MillsHouse 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 i'vfaterial and Possession or Sexually Explicit Material The bill would create a new affirmative defense for both the current crimes of dissemination of sexually explicit material, I7-A M.R.S.A. 283(1) (Supp. 2004), and possession of sexually explicit material, 17-A M.R.S.A. 284(1) (Sum). 2004). See Subsection 3 of the bill. Proposed new section 286 creating the affirmative defenses provides as follows:

§236. 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 desinnated must he 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 Ibstantive crimes as defined by the Maine Legislature includes as a factual "element"...