Online Solicitation of a Minor
Online Solicitation of a Minor is a very serious offense defined in Texas Penal Code 33.021. It is essentially using the internet to set up a meeting with a minor with the intent of engaging in sexual conduct. The offense occurs when an adult communicates online with a person who is under 17 (a minor) or the adult should believe is under 17 and:
1) has a sexually explicit conversation, or
2) sends a sexually explicit photo or video, or
3) asks to meet the minor to engage in sexual contact.
Perhaps the most surprising fact about this offense is that people are often arrested and charged with online solicitation of a minor even if they never had contact with an actual child. Most online solicitation charges arise from an undercover officer posing as a minor in a sting operation using a website or app to lure in suspects.
It is extremely important if you are arrested for online solicitation of a minor to contact a skilled criminal defense attorney who has experience handling these types of cases.
Police Sting Operations in Online Solicitation Cases
Police are allowed to, and do, lie during these investigations. For instance, if you ask the person on the other end of a chat if they are law enforcement, chances are they are not going to say yes. Additionally, the law does not require that the alleged victim be a minor; it can be an police officer posing as a minor. Arrests often take place when the person goes out to meet the alleged victim at a park or parking lot, but even in instances where the person never leaves home, officers can obtain internet service provider records to determine the identity or the location of the person engaged in the conversation and follow up with a subpoena that often leads to incriminating evidence and confessions.
Online Solicitation of a Minor is a Felony in Texas
Online solicitation is a felony offense in Texas that carries significant consequences including prison time, hefty fines and registration as a sex offender. Online solicitation of a minor is generally a third-degree felony with a punishment range of 2 to 10 years in prison. However online solicitation of a minor under the age of 14 is a second-degree felony and the punishment range is 2 to 20 years in prison.
There are two ways a person can be charged with online solicitation of a minor:
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One way to prosecute is under Penal Code Section 33.021(b). Under this section, a person commits an offense by using the internet to communicate in a sexually explicit manner with a minor or distribute sexually explicit material to a minor. Sexually explicit means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct. This conversation is a third-degree felony if the minor is 14 or over. It’s a second-degree felony is the minor is under 14.
The second way to prosecute is under Section 33.021(c). Under this a person commits an offense they use the internet to knowingly solicits a minor to meet with the intent that the minor would engage in sexual contact, sexual intercourse or deviate sexual intercourse. This is a second-degree felony regardless of the whether the minor was under 14 or not. It does not matter whether or not the meeting occurred or even if the accused intended for the meeting to occur.
Who is a Minor for Purposes of Online Solicitation of a Minor in Texas?
The Penal Code defines a minor as:
- Any person that represents themselves as being under the age of 17 when the crime was committed.
- Any person that the defendant believed was under the age of 17 when the crime was committed.
In other words, anyone actually under the age of 17 or anyone who the accused believed was under the age of 17 is considered a minor. As mentioned, in many online solicitation of minor cases, the person on the other end of the conversation is a law enforcement agent who in no way resembles the minor they are purporting to be. As a result, a police officer pretending to be a minor can become the basis to file this case.
Online Solicitation of a Minor Stings in Tarrant County
Both the state (DPS) and the Tarrant County Sheriff’s Office run sting operations through its Human Trafficking Unit to find individuals engaging in online solicitation of a minor. Additionally arrests for online solicitation of a minor occur at the city-level throughout Tarrant County. Sting operations are commonplace and arrests are frequent. For example, the Tarrant County Sheriff’s Office ran a three-day sting operation in September 2018 that resulted in the arrests of 13 men and warrants issued for seven more.
Online Solicitation of a Minor: An Example
The message included with this article is fictional, but it is a conversation that we’ve seen hundreds of times. A police officer or other law enforcement agent gets on an app like Whisper, YikYak, and Kik or websites like Craigslist (back when personal ads were still allowed) and posts a message that baits responses:
During these conversations, law enforcement will say they are some age under 17. (Note: If they say they are under 14, the punishment range doubles). Many of these conversations result in the suspect sending a photo of themselves to the law enforcement agent, which will later be used against the suspect. The conversations also often lead to a meet up – which is not necessary for the agents to prove their case – but they love intercepting individuals who agree to meet up. For those who don’t meet up, police will issue administrative subpoenas to get the IP addresses related to the accounts, usernames, or devices.
When the arrest occurs – be it at the intercept or based on an arrest warrant obtained months later – law enforcement is adept at pressuring individuals to the point their lives seem to be flashing before their eyes. These interrogations often lead to individuals confessing to crimes. A common police tactic is to suggest the individual sitting in front of them is a suspected pedophile who they believe has touched young children. That suggestion makes the person in the hot seat much more likely to say, “No! I never did that. The most I’ve ever done is chat.” Little does the suspect know that’s all law enforcement suspected. Confessions do not make prosecutors’ cases slam dunks in every situation, but they sure can make their jobs easier in many cases.
Another way the prosecution can prove online solicitation is by proving explicit materials – such as a photo or video – was sent to the minor.
The Online Solicitation statute is so broad that is has been challenged successfully in the past. The most recent revision came in 2015 after the Court of Criminal Appeals determined the statutory language was too broad.
The statute explicitly removes a defense that the meeting with a minor or purported minor did not occur. Instead, the certain portions of the statute criminalize mere conversations.
Online Solicitation of a Minor in Texas Defenses
It is not a defense that:
1. the meeting did not occur;
2. the accused did not mean for a meeting to occur;
3. the actor was only fantasizing about the meeting occurring.
It is a legal defense if the accused was married to the minor, or if the accused was not more than three years older than the minor and the minor consented to the conduct.
Sex Offender Registration for Online Solicitation of a Minor
If you enter a plea of guilty or are found guilty of Online Solicitation of a Minor, you will be required to register as a sex offender for a period of 10 years. Even if you are placed on deferred adjudication or straight probation, you will be required to register as a sex offender.
If you or a loved one is facing charges of online solicitation of a minor in Texas, it’s imperative that you contact a seasoned defense attorney who is experienced in these types of case. The stakes are too high to leave anything to chance.
Contact Varghese Summersett PLLC
Have you or a loved one been accused of online solicitation of a minor? Call us today at (817) 203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers have extensive experience handling these types of allegations and are here to help. During this call we will:
- Discuss the facts of your case;
- Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
- Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.
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Penal Code Section 33.021: Online Solicitation of 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.
(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.