Solicitation of a Minor Charges: Punishments, Penalties, Defenses
UPDATED: December 16, 2011
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Solicitation of a minor involves a defendant asking or engaging in a conversation with a minor and during the course of that conversation, the defendant asks (or solicits) the minor to meet them for the purpose of engaging in a sexual act. Online solicitation of a minor is a common form of solicitation of a minor, and involves communication through the internet during which the solicitation occurs. When charged with online solicitation of a minor, a defendant should understand the charge and its defenses, the initial penalty, and the long-term consequences.
Online solicitation of a minor is a very frustrating charge for many defendants because it does not require a completed “act” with a minor. A typical defendant will argue by saying, “I never touched her, so why am I being charged?” A defendant is essentially charged for the simple act of communicating in a certain way with a minor.
For internet solicitation or online solicitation of a minor, the method of contact must involve some type of online or electronic means. When this charge first evolved, most states restricted the application to conversations through the Internet, like those in chat rooms. However, as technology expanded, so did online solicitation laws. Some laws now include conversations through any electronic messaging services, emails, or text messages. As long as the method is electronic and the conversation includes a request for the child to meet in order to engage in sexual activity, then a defendant can be charged with solicitation of a minor.
Solicitation of a Minor Defenses
Solicitation of a minor laws have frequently been challenged by defendants on the basis that they violate a defendant's right to free speech, but have survived such claims. Viable defenses remaining will depend on a particular state’s laws. Some earlier laws required a defendant to actually communicate with a child and defendants could raise the defense of impossibility where prosecution involved communication with an officer who was merely posing as a child but who was in actuality an adult. In response to the success of the impossibility defense, many state statutes changed their laws to permit a conviction based on a defendant’s belief that they were talking to a minor. Other states have also built in “Romeo and Juliet” defenses for a defendant who is involved in a dating relationship with a child who was not more than three years younger than the defendant.
Although not an outright “defense,” another defensive angle is to prove that the defendant did not know that the person on the other end was a minor. Most states have strict liability laws—which means the state is not required to prove that a defendant knew how old the child was, only that the child was underage. However, some juries have engaged in "jury nullification," by finding a defendant not guilty if they believed that the defendant did not have a reason to believe the child was underage. Showing that the conversation was just an online fantasy or proving that they never intended to actually meet the minor are generally not good defenses. Before a defendant decides to pursue a defensive theory, they should discuss the practicality of the defense with a criminal attorney in their area.
Solicitation of a Minor: Misdemeanor or Felony?
Online solicitation of a minor is usually classified as a felony level offense. As with most felonies, the range of punishment can include a deferred or suspended sentence, up to several years in prison. A defendant in Texas can receive anywhere from two to twenty years in prison. Although a deferred sentence can allow a defendant to remain free, the restrictions of probation tend to be more intense for online solicitation charges because they are considered sexually related offenses. The court can order a defendant to submit to maintenance polygraphs, complete individual or group sex offender counseling, to submit to a sex offender evaluation, and to refrain from being around any children while on probation. The court can also require a defendant to pay for these programs which can run up to $500.00 or more per month.
The long-term consequences can be even more severe. Because online solicitation of a minor is considered a sexually related offense, a defendant can be required to register as a sex offender. If a defendant fails to register, they can be charged with a new felony offense of failure to register as a sex offender. Once a defendant has a sexually related offense on their record, some states will significantly increase the punishment for a second offense if a defendant is ever charged with another sexually related offense. Beyond the court system, online solicitation will also affect employment opportunities. With more open access to the court systems, more employers are performing background checks and will not hire certain candidates. Applicants with sexually related offenses are generally the first to get cut.