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.
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