The Campaign For DA

10.30.2013

Legal Stuff: Texas Online Solicitation Of A Minor Statute Struck Down


Happened this morning. Before you go crazy about "liberal judges" (especially when the ruling was unanimous from the notorious conservative and 100% Republican Texas Court of Criminal Appeals), calm down. This is the specific part of the statute which was struck down:

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, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally: (1)  communicates in a sexually explicit manner with a minor;  or (2)  distributes sexually explicit material to a minor.

What's wrong with that you say? Sounds reasonable. Shouldn't be doing any dirty talking with a minor or sending seedy photos.

What if I told you that "minor" was defined in the statute as "(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."  Notice the "or"?  That's a big deal. That statute makes it a felony, when read literally, for two adults to communicate in a sexually explicit manner with one another so long as one adult says he's/she's younger than 17 even if the other person doesn't believe it or knows for a fact it's not true.  Think about that.

Truly, if I were to say "I'm 16" then from now on Wordkyle would be committing a felony every time he sends me one of those scantily clad pics of women via email.* I've represented myself to be under 17 and that's all that is required under that statute.

All that being said, the Court didn't specifically rule on that argument in knocking down the statute (even though it was argued by the Defendant.) Instead it ruled that the definition used of "sexually explicit material" was so ridiculously broad that it violated the First Amendment right of Free Speech.

(Shout out to lawyer Mark Bennett of Houston who won the case.)

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*Note: This factual scenario is a joke. Wordkyle has never done such a thing. Oh, and I'm not 16. Although I know a dog pile was coming on that aspect of said joke.