Daniel Decker was convicted of fifth-degree criminal sexual conduct and indecent exposure for sending a picture of his genitals to a minor via Facebook Messenger.  In relevant part, fifth-degree criminal sexual conduct requires:

  1. The defendant engaged in lewd exhibition of the genitals.
  2. The defendant’s act took place in the presence of a Minor.
  3. The defendant knew or had reason to know a Minor was present at the time of the act.

Similarly, indecent exposure also entails willfully and lewdly exposing one’s private parts in a place where others are “present.”  Daniel Decker appealed his convictions arguing that he did not meet the “presence” requirement of either crime because he and the victim were in different physical locations.

Supreme Court: Simultaneous Online Communications via Facebook Messenger Meets the “Presence” Requirement

On August 8, 2018, the Minnesota Supreme Court issued their decision in State v. Decker.  The Court held that “Presence of a minor” for purposes of fifth-degree criminal sexual conduct and indecent exposure, includes simultaneous online communications with a minor.  In reaching its decision, the court examined the goals of the law and were concerned that interpreting “presence” to mean physical presence would create an exception that allows adults to expose themselves to minors via the internet without consequence.  In light of these, the court reasoned that “presence” as used in these statutes extends to simultaneous online communications.

Are there really no other laws to protect minors from this type of conduct?

In fact there are a number of criminal laws in Minnesota that prohibit sexually explicit electronic communications with minors.

Minn. Stat. 609.352 Communication of sexually explicit materials to children Minn. Stat. 617.241 617.241. Obscene materials and performances; distribution and exhibition prohibited
It is unlawful for a person 18 years of age or older who uses the Internet, a computer, computer program… to distribute any material that relates to or describes sexual conduct to a child.

Felony: up to 3 years in prison and/or $5,000 fine.

It is unlawful for a person, knowing or with reason to know its content and character, to:exhibit, sell, print, offer to sell, give away, circulate, publish, distribute or attempt to distribute any obscene material (i.e. lewd exhibitions of genitals).

Gross Misdemeanor: up to one year in jail and/or $3,000 fine

The fact is that there are laws that already criminalized Decker’s conduct and there was simply no need to expand the definition of “presence” for criminal sexual conduct and indecent exposure offenses.  It is also interesting and worth pointing out that Decker’s convictions are gross misdemeanor level offenses which carry a maximum penalty of up to 1 year in jail.  Had he been charged with the more applicable statute listed above (609.352) he would have been guilty of a felony (up to 3 years in prison) for the exact same conduct. The court justified its expansion of “presence” in the name of protecting minors when in reality there was already adequate and more harsh protection in place.

Simultaneous Online Communications?

It is interesting that the court seemed to have limited its decision to only simultaneous electronic communications.  The court deliberately drew on the fact that Decker knew that the minor was online and using the Facebook Messenger app at the time that he sent the picture of his genitals.  If you are familiar with the app you know that a green dot appears by your name when you have the app open.  What would have happened if the minor’s status showed that she was not currently using the app?  What if the two weren’t texting at the exact time that Decker sent the picture? There is certainly room for argument that in those instances the conversation was not simultaneous and therefore not in the presence of a minor. The court decision to limit the definition of “presence” to simultaneous communications seems to have created a gray area that is open to argument.

If You are Facing Criminal Sexual Conduct Charges, You Need Experienced Representation.

If you have been charged with a sex crime, you need an attorney with experience in this area.  These cases are extremely sensitive and have serious, life-long collateral consequences. We have been to trial for many sex-related crimes, and understand the careful, aggressive approach needed to succeed. Our results speak for themselves: Patrick Cotter Results;  Tom Sieben Results.

Call Sieben & Cotter at 651-455-1555 to arrange your free and comprehensive consultation, or send a request for more information.

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