18 Feb 2014
A Williamson County jury returned a guilty verdict earlier this month in the case of a man accused of soliciting a minor for sex. The defendant was sentenced the following day to 26 years in prison. The case provides us with an opportunity to discuss some of the criminal laws involving the use of the internet.
The primary statute in this area is § 33.021 of the Texas Penal Code. This section prohibits, through the use of the internet, email, text messaging and similar mechanisms, (a) sexually explicit communications with a minor, (b) distributing sexually explicit material to a minor, or (c) soliciting a minor for sex. Soliciting under the final section is a second degree felony, while the others are third degree felonies.
It seems rather straightforward, until you examine some of the specifics of the statute. Most importantly, the definition of a “minor” is rather different than in other contexts, and the term is not defined as you might expect it to be. The definition in the statute is an individual “who represents himself or herself” to be under 17 years old, or someone the actor (that is, the suspect) believes to be younger than 17. This is just the reverse of, say, sexual assault on a child (under the age of 17), where it is the actual age of the minor that is important, and a mistake, even a good faith mistake, regarding the minor’s age is no defense.
So in an online solicitation case, if you believe the other person is under 17 years of age, that is the crucial fact. The actual age of the other person is essentially irrelevant to the case, and the person on the other end of the email or chat room could, in fact, be a 43-year old police officer. Of course, this does raise the issue of entrapment, but the point is that what’s being punished here is not necessarily harm to an actual child, but rather what is in the mind of the defendant.
We should mention one last item. The conviction in the Williamson County case, as a second degree felony, would ordinarily be punishable by imprisonment for between two and 20 years. Because the defendant in the case had a prior conviction on a sex charge, he received an enhanced sentence.
Law Office of David D. White, PLLC
1201 Rio Grande Street #200
Austin, TX 78701
(512) 369-3737