Defending the Online Solicitation of a Minor Case

 Posted on May 23, 2023 in Uncategorized

What is Online Solicitation of a Minor?

Online Solicitation of a Minor is one of two offenses created by sections 33.021(b) and 33.021(c) of the Texas Penal Code:

Sec. 33.021. ONLINE SOLICITATION OF A MINOR. (a) In this section:(1) "Minor" means:(A) an individual who is younger than 17 years of age; or(B) an individual whom the actor believes to be younger than 17 years of age.(2) "Sexual contact," "sexual intercourse," and "deviate sexual intercourse" have the meanings assigned by Section 21.01.(3) "Sexually explicit" means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.(b) A person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:(1) communicates in a sexually explicit manner with a minor; or(2) distributes sexually explicit material to a minor.(c) A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person....

In short, online communications with a person who is under 17, or who you believe is under 17, are illegal in Texas if you intend for that communication to lead to a minor engaging in sexual conduct, constitute Online Solicitation of a Minor. That sexual conduct can be with you, with someone else, or even with herself.

What is the punishment for Online Solicitation of a Minor in Texas?

Depending on the facts, Online Solicitation of a Minor under the Texas Penal Code can be a third-degree felony with a punishment range of two to ten years in prison, a second-degree felony with a punishment range of two to twenty years, or a first-degree felony with a punishment range of five years to life in prison:

...(f) An offense under Subsection (b) is a felony of the third degree, except that the offense is a felony of the second degree if the minor is younger than 14 years of age or is an individual whom the actor believes to be younger than 14 years of age at the time of the commission of the offense. An offense under Subsection (c) is a felony of the second degree.(f-1) The punishment for an offense under this section is increased to the punishment prescribed for the next higher category of offense if it is shown on the trial of the offense that:(1) the actor committed the offense during regular public or private primary or secondary school hours; and(2) the actor knew or reasonably should have known that the minor was enrolled in a public or private primary or secondary school at the time of the offense....

That is, communications that are sexually explicit and that are intended to cause a child to engage in sexual conduct, but that do not solicit a meeting for sex, under 33.021(b), are a third-degree felony. So for example if you asked someone who was, or who you believed to be, fifteen years old to send you nude selfies (the offense of Sexual Performance by a Child), the range of punishment would be two to ten years in prison.

If you believed her to be under 14, you would be facing two to twenty years in prison.

Likewise, if you asked her to meet you for sex (and you intended for it to happen, a violation of section 33.021(c)) you would be facing two to twenty years in prison.

But if you communicated with the minor when you should have known that the minor was enrolled in school, the punishment range is increased one step-from a third-degree felony to a second-degree felony, or from a second-degree to a first-degree felony (five years to life in prison).

Can you get probation for Online Solicitation of a Minor in Texas?

If you have no prior felony convictions and you are convicted of Online Solicitation of a Minor, you are eligible for probation from either a judge or the jury. Beware, however, that judges and juries in Texas, especially in more conservative counties, are likely to send you to prison for soliciting sex with someone you believe is a minor.

What are the usual defenses to Online Solicitation of a Minor?

The usual defenses to Online Solicitation of a Minor charges in Texas are inferential rebuttal defenses. Inferential-rebuttal defenses are arguments that the State has not proved its case against you beyond a reasonable doubt:

• You didn't communicate with the minor,

• You didn't believe he was a minor,

• You didn't intend to meet with him,

• You didn't intend for him to engage in sexual conduct.

Isn't it entrapment?

Most Online Solicitation of a Minor cases involve police officers pretending to be children online. Isn't this entrapment?

It could be, but there are two things you need to know about that.

First, giving someone an opportunity to commit a crime is not entrapment. Entrapment requires that the police "use persuasion or other means likely to cause" ordinary law-abiding people to commit the offense. This is more persuasion than we typically see in an Online Solicitation of a Minor case. The police in such cases are finding already-lonely people to arrest, but those lonely people seem to be open to the idea of talking dirty with children.

Second, entrapment is a confession-and-avoidance defense. Entrapment only applies if you "engaged in the conduct charged." That means that before you can argue that you were entrapped, you cannot argue that you did not commit the criminal conduct. You cannot both argue that you didn't intend for the minor (the cop) to engage in sexual conduct and argue that you were entrapped. So before you try an entrapment defense, you have to be sure that that is a better defense than any of the inferential rebuttals.

Note that if the police officer told you, "let's pretend I'm fourteen," and then you engaged in age-play, that create a defense of entrapment, but would support the inferential-rebuttal defense, "I didn't believe he was a minor."

Are there other defenses?

I'm glad you asked! With the single case of Ex parte Lo in 2013, I found a defense that set dozens of people free from Online Solicitation of a Minor convictions, probations, and charges. Aside from me, nobody had thought of this defense.

And while the Texas Legislature changed the statute after Ex parte Lo, so that defense is not helpful in new 33.021(b) cases, I have a few other novel defenses-defenses that it looks like other defense lawyers haven't thought of-to try in Online Solicitation of a Minor cases.