Texas on-line solicitation of a minor statute vs. The 1st Amendment of the U.S Constitution

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 on-line communication 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.

The law has been changed in recent years, broadened, so that it not only encompasses communication with actual minors (as required by the old law), but now, also with law enforcement posing as minors. As you will see below, this was achieved by simply redefining the term minor  for purposes of the statute.

This change was to eliminate what had been a viable defense under the old law, that being that if no actual minor was involved, no crime had been committed. But the state legislature took it a step further in writing the new law by trying to envision any scenario that would be a defense and specifically listing it as a non defense, and I think they may have gone too far, and by doing so, written and unconstitutional law.  See if you can figure out why.

Hint: the problem I see is in BOLD

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.

So, what if two adults have a fantasy where one pretends to be a minor for purposes of their banter?  That, under this statute would still be a crime. 

You can call this type of fantasy play between adults anything you want: sick, twisted, kinky, unusual, perverted, hot, it doesn't matter. It would still be protected by the free speech provisions of the 1st Amendment of the U.S. Constitution, or at least it did when I went to law school.  This one could be coming back to bite them someday, or maybe not.

Comments are very welcome. 

If you or a loved one is facing charges of Online Solicitation of a Minor For Sexual Purposes in Texas, contact Matthew Arnold, Dallas defense attorney.