Online Solicitation of a Minor became a Texas crime in response to sexual predators contacting and targeting underage people via the internet on social networking sites and other online forums. So, it is a relatively new crime. Many states across the country passed similar laws during the last decade to decade and a half. These laws became reality during those years in which the internet was becoming increasing more sophisticated and pervasive. Online solicitation first became law in Texas in 2005.
Online Solicitation of a Minor is a criminal statute that is rife with problems. Excellent Texas attorneys have successfully attacked various portions of the law on First Amendment grounds, arguing successfully to Texas Courts of Appeal and, ultimately, the Texas Court of Criminal Appeals that what this statute criminalizes is, in fact, protected free speech. The result is that various portions of this law have been struck down. But the law itself remains. Time will tell what becomes of the law. The statute is lodged in Chapter 33 of the Texas Penal Code. The chapter is entitled “Computer Crimes.” Online Solicitation of a Minor is grouped together with computer crimes such as Online Impersonation, a statute with First Amendment problems of its own. This page addresses different aspects of the criminal charge, examines the law, discusses both the penalties that accompany the charge, as well as the First Amendment issues and defenses.
How Do These Charges Usually Arise?
Frequently, these arrests are the result of undercover police stings and set-ups that are often elaborate. A criminal allegation for soliciting a minor on the internet can emerge under variously different scenarios, of course. A child can tell a parent about a troubling encounter or solicitation online, and the parent can then tell law enforcement about the event, and this can lead to arrest. However, police stings became very popular law enforcement tactic to snare alleged offenders. A police officer will pose as a person under 17 years of age on the internet and try and attract adults, who the undercover officer will then try to lure into a meeting, and at the meeting there will be an arrest. Do you remember the very popular show called “To Catch a Predator?” One reason these tactics are effective is the evidence that they generate against a person. This evidence often includes many statements from the person charged, and prosecutors will utilize those statements to argue intent. Statements of the defendant can badly damage case. Regardless, if you are facing this charge, it is crucial to hire a skilled criminal defense attorney.
What is the Law on Online Solicitation of a Minor?
As noted above, this crime is grouped under the chapter on Computer Crimes, Chapter 33 of the Texas Penal Code. Here is the language from the statute:
Section 33.021. Online Solicitation of a Minor.
In this section:
(a) “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 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.
(d) It is not a defense to prosecution under Subsection (c) that the meeting did not occur.
(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (c) was committed:
(1) the actor was married to the minor; or
(2) The actor was not more than three years older than the minor and the minor consented to the conduct.
(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.
(g) 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.
So What Exactly is a Crime?
Under subsection (b), what is criminalized is communicating electronically in a sexually explicit way—via email, text, Facebook, Twitter, or any other social media—with a minor under 17 years of age, and with the intent to commit an offense listed in Chapter 62 of the Code of Criminal Procedure. The offenses listed in Chapter 62 include sexual conduct, indecency, promotion of child pornography. Intent is a crucial part of this crime, and without it, there is no crime. The state of Texas must prove that you intended to commit one of these offenses. This is the reason why police stings and organized law enforcement traps are set up—to gather sufficient evidence to prove up intent. An offense under this subsection is a third-degree felony. However, if the child is under 14 years of age, it is a second-degree felony.
Under subsection (c), what is criminalized is soliciting a minor child for a meeting in person, either the defendant or another person. This solicitation must be done with the intent that the minor engage in sexual contact or sexual intercourse. Subsection (d) states that it is not a defense if the meeting did not actually occur. A crime under this section is a second-degree felony.