¶ 99. (concurring). Wisconsin Stat. § 948.11 is entitled, in part, "Exposing a child to harmful material." It reads in part:
(2) Criminal Penalties, (a) Whoever, with knowledge of the character and content of the material, sells, rents, exhibits, plays, distributes, or loans to a child any harmful material, with or without monetary consideration, is guilty of a Class I felony if any of the following applies:
1. The person knows or reasonably should know that the child has not attained the age of 18 years.
2. The person has face-to-face contact with the child before or during the sale, rental, exhibit, playing, distribution, or loan.
Wis. Stat. § 948.11(2)(a).
*309¶ 100. A person looking at this statute might wonder why the statute does not read as follows: "Whoever, with knowledge of the character and content of the material, sells, rents, exhibits, plays, distributes, or loans to a child any harmful material, with or without monetary consideration, is guilty of a Class I felony."
¶ 101. When ch. 948 of the statutes was created in 1988,1 Wis. Stat. § 948.11(2)(a) did read more simply: "Whoever, with knowledge of the nature of the material, sells, exhibits, transfers or loans to a child any material which is harmful to children, with or without monetary consideration, is guilty of a Class E felony."
¶ 102. The legislature revised the statute and approved the present language in § 948.11(2)(a) and (c) in 2001 in an effort to deal with continuing issues surrounding a defendant's knowledge about a child's age.2 This knowledge factor has always been troubling. *310Defendants have had some form of an affirmative defense involving reasonable mistake of age — a provision now embodied in § 948.11(2)(c) — for at least four decades. See Wis. Stat. § 944.25(ll)(a) (1971).
¶ 103. Several years ago, the court observed that "[s]ection 948.11 has been somewhat of a 'work in progress' since 1957." State v. Thiel, 183 Wis. 2d 505, 534 n.22, 515 N.W.2d 847 (1994). Historically, the major points of contention have been (1) the character of the "harmful material" covered by the statute, and (2) the defendant's knowledge about the child's age. To some extent, both of these issues implicate the defendant's knowledge or state of mind.
*311¶ 104. The present case presents a new issue of mens rea because of a somewhat unusual application of the statute.
¶ 105. The defendant played a pornographic video at night in his apartment at a time when his three-year-old daughter was supposed to be in bed. Apparently, the daughter left her bedroom and entered the room where the video was being shown. Apparently, she saw the video.
¶ 106. The State contends that the defendant admitted to police officers that he was aware that his daughter had entered the living room but he was so preoccupied that he failed to turn off the video. The defendant contests this version of events.
¶ 107. There is no dispute that Wis. Stat. § 948.11(2) requires more than that the defendant purposely played a pornographic video. That is not unlawful. The new issue is what state of mind the defendant had to have with respect to his daughter's seeing the video — the harmful material — to be guilty of the offense.
¶ 108. The defendant argues that the instructions given to the jury were misleading because they could have led the jury to believe that if the child observed the defendant's video being played and the defendant either saw the child before the child watched the video, or if the defendant saw the child during the time the child was watching the video, he would be guilty even though the child's viewing of the video was inadvertent or accidental. The defendant contends that permitting a jury to convict him because of an accidental viewing by the child would unconstitutionally relieve the State of the burden of proving an affirmative act on his part vis-a-vis the child.
¶ 109. If we ask what state of mind the statute requires for conviction, the question has nothing to do *312with the age of the child. The question has everything to do with volition or knowledge. Did the defendant have to make a conscious choice to "play" or "exhibit" the video to his daughter? Could the defendant be convicted if he knew that his daughter had begun to watch the video but he did not act immediately to stop the viewing? Is an accidental viewing subject to prosecution?
¶ 110. Chief Justice Abrahamson appears to address these questions by requiring the insertion of the word "knowingly" before all six verbs in the statute, namely, "sells, rents, exhibits, plays, distributes or loans," in future jury instructions. The word "knowingly" is derived from Thiel, 183 Wis. 2d at 535, where the court said, in a particular fact situation, that "an individual violates the statute if he or she, aware of the nature of the material, knowingly offers or presents for inspection to a specific minor or minors material defined as harmful to children." (Emphasis added.)
¶ 111. There is resistance to this remedy. The word "knowingly" is not contained in the statute. The word has not been picked up and highlighted in the headnotes to the Thiel case. It has not been put into the jury instructions over the past 16 years. And the statute has been substantially amended since 1994.
¶ 112. Justice Ziegler contends that a state of mind is implicit in the six verbs — that each verb "represents a knowing and affirmative act." Thiel, 183 Wis. 2d at 535. She believes that adding the word "knowingly" to the jury instructions would create mischief. She wants to leave well enough alone.
¶ 113. On the other hand, the record in this case is clear that the jury was confused and wanted guidance. The circuit court did not provide guidance, and the jury was left with an erroneous instruction. The *313circuit court would have benefited from discussion and advice from the Wisconsin Criminal Jury Instructions Committee in the jury instructions.
¶ 114. Rather than try to resolve here the issue of mens rea embedded in the first element of the statute involving the words "play" and "exhibit," I would ground a new trial solely on the misleading fourth element employed by the circuit court.
¶ 115. I am authorized to state that Justice MICHAEL J. GABLEMAN joins this concurrence.
See 1987 Wis. Act 332, § 55.
See 2001 Executive Budget Act, 2001 Wis. Act 16, §§ 3976-3977. The budget provision was derived from 2001 Senate Bill 26, introduced by a bipartisan group of legislators at the request of Attorney General James Doyle. The bill analysis for Senate Bill 26 reads, in part, as follows:
Current law does not require that the state prove that the defendant knew or should have known that the recipient of the material was a child. The law does, however, establish an affirmative defense under which the defendant may avoid criminal liability by proving that he or she reasonably believed that the recipient was 18 years of age or older. In order to prove that he or she reasonably believed the recipient was 18 years of age or older, the defendant must show that the recipient provided the defendant an official document purporting to establish that the recipient was at least 18 years of age.
The Wisconsin supreme court recently ruled that the statute that prohibits exposure of a child to harmful materials is unconstitutional as applied to a defendant who sent harmful material over the Internet to a 17-year-old, and to other instances in which *310the defendant does not have face-to-face contact with the recipient. State v. Weidner, 235 Wis. 2d 306 (2000). The supreme court found the statute unconstitutional because the statute does not make knowledge of the recipient's age an element of the crime, which the state must prove to obtain a conviction. The supreme court distinguished Weidner (in which the defendant transmitted harmful material over the Internet) from instances in which the defendant meets the recipient face-to-face. The supreme court did not disturb a lower court ruling that found the statute constitutional as applied to instances in which the defendant meets the recipient face-to-face, because the face-to-face meeting provides the defendant opportunity to assess the recipient's age.
This bill makes knowledge of the recipient's status as a child an element of the crime only if the defendant does not have face-to-face contact with the child. Under the bill, if the defendant does not have face-to-face contact with the recipient, the state need not prove that the defendant knew or should have known that the recipient was a child. A defendant who has face-to-face contact with the recipient may avoid criminal liability by proving the affirmative defense as modified by the bill. The modified affirmative defense requires that the defendant prove that he or she had reasonable cause to believe that the recipient was at least 18 years of age, hut does not require the defendant to prove that the recipient displayed an official document purporting to establish that the recipient was 18 years of age or older.