On-line Solicitation of a Minor For Sexual Purposes: The Legality Behind The Charge

On-line solicitation of a minor for a sexual purpose, that is, with intent to commit a sexual activity with that minor, is one of the most investigated and targeted activities by both federal and state law enforcement in this day and age. The on-line solicitation as it is known as, is usually in the form of contact by electronic mail (e-mail), instant messaging, or other use of the Internet.

The contact with a minor (underage person), often a male contacting an underage female, becomes a violation of state and federal law when the conversation turns to content of a sexual nature to the extent that it appears that the contacting person is communicating in a sexually explicit manner with the contacted person.

Often, persons are prosecuted pursuant to these laws when a person arranges to meet the minor to engage in sexual activity. However, the person making the on-line communication may be prosecuted even if he does not follow through with contact with the minor, but rather merely communicates in a sexually explicit manner. Also, persons can be prosecuted here if they forward sexually explicit material to the minor.

Both the United States Code (federal criminal laws) and the Texas Penal Code (state criminal laws) contain laws against on-line solicitation of minors for a sexual purpose. Below is the law in state courts in Texas against solicitation of a minor using the Internet (on-line solicitation), as set out in Texas Penal Code Section 33.021:

ONLINE SOLICITATION OF A MINOR (Texas Penal Code 33.021)
(a) In this section:
(1)"Minor" means:
(A) an individual who represents himself or herself to be 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 arouse or gratify the sexual desire of any person, the person, over the Internet or by electronic mail or 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 or by electronic mail or 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.

DEFENSES TO AN ON-LINE SOLICITATION CHARGE
The following are defenses to the On-Line Solicitation of a Minor per Section 33.021 of the Texas Penal Code, and are contained in paragraph (e) of this statute:

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (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.

The following are not defenses to this state statute of on-line solicitation, as per the statute itself, Section 33.021. This portion of the statute actually prevents a person from claiming that he was not serious about the content of the communication with the minor:
(d) It is not a defense to prosecution under Subsection (c) that:
(1) the meeting did not occur;
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of the offense.

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