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Online Solicitation of a Minor-
How can I be charged with Online Solicitation of a Minor?
Online Solicitation of a Minor is defined in Section 33.021(b) and (c) of the Texas Penal Code. Subsection (b) describes the offense as follows:
(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.
Alternatively, under subsection (c):
(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.
Under this law, there are two separate and specific ways of being charged with Online Solicitation of a Minor:
(1) sending sexual explicit messages to a minor is an offense under Section (b), or
(2) soliciting a minor to engage in sexual behavior is an offense under Section (c).
* Subsection (b) was recently amended, effective September 1, 2015, in Senate Bill 344, after the Court of Criminal Appeals determined that the law was unconstitutional. NOW, the State has to prove that the Defendant had INTENT to commit either of the following:
- Continuous Sexual Abuse of Young Child or Children (Section 21.02 of the TX Penal Code)
- Indecency with a Child (Section 21.11 of TPC)
- Sexual Assault (Section 22.011 of TPC)
- Aggravated Sexual Assault (Section 22.021 of TPC)
- Prohibited Sexual Conduct (Section 25.02 of TPC)
- Compelling Prostitution (Section 43.05 of TPC)
- Sexual Performance by a child (Section 43.25 of TPC)
- Possession or promotion of child pornography (Section 43.26 of TPC)
- Trafficking of Persons (section 20A.02(a)(3)(4)(7)(8) of TPC)
What am I facing if convicted of Online Solicitation of a Minor?
If charged under section (b) of the statute, the offense is a Third Degree Felony with a range of punishment of 2-10 years in the Texas Department of Corrections and/or a fine of up to $10,000.
Under the same section (b), if the minor is under the age of 14 or the accused believes he/she is talking to a person under the age of 14, it is enhanced to a Second Degree Felony with a range of punishment of 2-20 years in the Texas Department of Corrections and/or a fine of up to $10,000.
If charged under section (c), it is a Second Degree Felony with a range of punishment of 2-20 years in the Texas Department of Corrections and/or a fine of up to $10,000.
Will I have to register as a Sex Offender?
Yes. Taking a plea deal that requires jail time, probation, or deferred probation will result in you having to register as a sex offender.
Even if I did not actually intend to meet up with the “child”, can I still be charged?
Yes, section (d) of the statute specifically states that it is not a defense to prosecution that the meeting did not occur.
So, are there any defenses available?
Under section (e) of the statute, there are 2 possible defenses. One being, the accused was married to the minor OR the other being that the accused was not more than 3 years older than the minor and the minor consented to the conduct.
Of course other defenses can be alleged during your defense but these are the only two legally recognized by the Legislature.
Earlier you mentioned that part of the statute of unconstitutional, what does that mean?
In 2013 the Court of Criminal Appeals found that Section 33.021(b) was facially unconstitutional and overbroad (Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App.2013)). What this means is that is infringed on your First Amendment right of freedom of speech. You are allowed to express yourself sexually as long as it is not obscene.
Since 2013, other attacks have been made on section (c) but as of today, the 9th Court of Appeals still finds that section to be constitutional.
What’s the difference between Criminal Solicitation of a Minor and Online Solicitation of a Minor?
The difference is pretty obvious that one uses a computer and the other does not. Criminal Solicitation of a Minor is found in the Inchoate Offense of the Penal Code while Online Solicitation of a Minor is found in Computer Crimes of the Penal Code. For example, you cannot go up to a minor on the street and ask for a sexual favor.
Can I be charged with both criminal solicitation of a minor and online solicitation of a minor?
Yes, they are two different crimes. Section 32.021(g) specifically states that if conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both. Double jeopardy does not apply because they are not lesser-included crimes of one another.
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