MN’s Solicitation of a Minor Statute — Unconstitutional
The two portions of Minnesota Statute § 609.352 SOLICITATION OF CHILDREN TO ENGAGE IN SEXUAL CONDUCT that have come under recent attack in that courts are subdivision 2a (electronic communications) and subdivision 3 (defenses). The subdivisions state:
Subd. 2a. Electronic solicitation of children.
A person 18 years of age or older who uses the Internet, a computer,… or other electronic device capable of electronic data storage or transmission to commit any of the following acts, with the intent to arouse the sexual desire of any person…
(2) Engaging in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct;
Subd. 3. Defenses.
(a) Mistake as to age is not a defense to a prosecution under this section.
On June 20, 2016 the Court of Appeals held that Minn. Stat. § 609.352, subd. 2a was unconstitutionally vague in violation of the First Amendment.
State v. Muccio, 881 N.W.2d 149 (Minn. Ct. App. 2016), involved an adult, Krista Muccio, who engaged in sexually explicit conversations with 15-year-old boy via Instagram. The Defendant argued that the statute is overbroad because it suppresses protected speech. The Court agreed stating that the statute: “suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.”
Specifically, the Court pointed to several aspects of the statute that cause its substantial overbreadth. First, the statute’s intent requirement is satisfied if the adult has “the intent to arouse the sexual desire of any person.” In other words, the intent to arouse could be directed, not at a child, but at another adult. Second, the communication need only be “relating to or describing sexual conduct.” . Third, “engage” is not defined, so it is unclear whether a one-way communication would be sufficient. Meaning, the communication need not be direct, exclusively between the adult and the child, or concerning sexual conduct between the adult and the child.
The Court was concerned that under the statute many innocent people would be guilty of a crime including a music artist who produces sexually explicit lyrics for its listeners or views; a film producer who films a movie with a sex scene with the intent to arose the sexual desires of its viewers; or book writer who writes about a sex explicit scene for its readers, any of whom could be a child.
The Court held that Minn. Stat. § 609.352, subd. 2a(2), proscribes protected speech and is facially overbroad in violation of the First Amendment. Finally, the statute is not narrowly drawn to serve the state’s compelling interest in protecting children from sexual abuse and exploitation on the Internet and therefore is an unconstitutional content-based regulation of speech.
On August 8, 2016 the Court of Appeals held that Minn. Stat. § 609.352, subd. 3(a) violated the Defendant’s due process rights by imposing strict liability for the felony offense.
In State v. Moser, No. A15-2017, 2016 WL 4162818 (Minn. Ct. App. Aug. 8, 2016), the Defendant, Mark Moser, used Facebook Messenger to engage in a sexually explicit conversation with a 14-year-old girl. The two had never met in person and the girl told Moser that she was 16 years-old (legal age to consent). He was charged with, and convicted of, solicitation of a minor under the statute. He argued his conviction should be overturned because he was denied his due process rights when the court denied his motion to present a mistake-of-age defense.
The Court ultimately reversed Moser’s conviction, holding that the child-solicitation statute violates substantive due process as applied to solicitation that occurs solely over the Internet, without any face-to-face contact, and where the person solicited represents to the defendant that he or she is 16 or older.
The Court reasoned that there are weights and balances in the scales of justice. Sexual solicitation of children is a grave concern. But the concept that wrongdoing must be conscious in order to be criminal… When the person solicited represents that he or she is 16 or older, the solicitation occurs over the Internet, and there is no in-person contact between the defendant and the person solicited, the prohibition in Minnesota Statutes section 609.352, subdivision 3(a), on a person charged under the child-solicitation statute raising the affirmative defense of mistake of age violates substantive due process.
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