State Child protection legislation; solicitation and importuning

Cumulative Supplement

Cases:

Trial court's findings regarding danger to juveniles posed by crime of lewd computer solicitation of child was not legally relevant factor to justify denial of motion to reduce bond totaling $300,000, which amount was tantamount to no bond at all as applied to defendant. West's F.S.A. § 903.046. Narducci v. State, 952 So. 2d 622 (Fla. Dist. Ct. App. 4th Dist. 2007); West's Key Number Digest, Bail 53.

Evidence was sufficient to support conviction for utilizing a computer service to seduce, solicit, lure, or entice a minor or a person believed to be a minor to commit an illegal act, even though defendant's online statements to police officer posing as 15-year-old boy in "Young Men" chat room avoided explicit references to sexual conduct; tenor of defendant's suggestive comments, including "we can be more, and do whatever makes you happy," could be interpreted to demonstrate both the adroit artfulness, or enticement, and the enjoyment of active attraction, or allurement, of a predator laying a trap for his prey. West's F.S.A. § 847.0135(3). Grohs v. State, 944 So. 2d 450 (Fla. Dist. Ct. App. 4th Dist. 2006); West's Key Number Digest, Telecommunications 1351.

Statute prohibiting transmission of material harmful to minors to a minor by electronic device or equipment was narrowly tailored and not unconstitutionally vague, despite defendant's claim that the statute applied to minors without attempting to classify materials differently for older age groups; Legislature had the responsibility and authority to protect all children, even older ones, and statute was limited to harmful material sent to minors by electronic mail. West's F.S.A. § 847.0138. Simmons v. State, 886 So. 2d 399 (Fla. Dist. Ct. App. 1st Dist. 2004), review granted, 898 So. 2d 81 (Fla. 2005); West's Key Number Digest, Constitutional Law 82(6.1).

Statute prohibiting transmission of material harmful to minors to a minor by electronic device or equipment was narrowly tailored and not unconstitutionally vague, despite defendant's claim that the statute applied to minors without attempting to classify materials differently for older age groups; Legislature had the responsibility and authority to protect all children, even older ones, and statute was limited to harmful material sent to minors by electronic mail. West's F.S.A. § 847.0138. Simmons v. State, 886 So. 2d 399 (Fla. Dist. Ct. App. 1st Dist. 2004), review granted, 898 So. 2d 81 (Fla. 2005); West's Key Number Digest, Telecommunications 461.15.

Even if computer pornography statute, making it unlawful for any person to knowingly utilize computer on-line service to seduce child to commit any illegal act relating to sexual battery, was considered a content-based restriction on constitutionally protected speech, it passed the strict scrutiny test because it promoted a compelling state interest in protecting children from persons who solicit or lure them to commit illegal acts, and was narrowly tailored to promote that interest, specifically limiting its prohibitions to communication intended to solicit or lure a child to commit illegal acts. West's F.S.A. § 847.0135(3). Cashatt v. State, 873 So. 2d 430 (Fla. Dist. Ct. App. 1st Dist. 2004); West's Key Number Digest, Libel and Slander 90.4(3).

Defendant's numerous internet conversations with undercover officer posing as mother of nine-year-old child describing explicit sexual acts, his specific arrangements to meet mother and child, his arrival from Wyoming with plans to rent vehicle to take child back with him, and his stated intent to perform sex acts, constituted overt acts tending toward raping child, as required to support charge for attempted aggravated rape. LSA-R.S. 14:27, 14:42, subd. A(4). State v. Thurston, 900 So. 2d 846 (La. Ct. App. 5th Cir. 2005); West's Key Number Digest, Rape 53(1).

Free speech defense: Statute criminalizing the use of technology to lure children away from their parents or guardians was not overbroad and did not violate the First Amendment; inducement of minors to engage in illegal sexual activity enjoyed no First Amendment protection. U.S.C.A. Const.Amend. 1; West's NRSA 201.560. State v. Colosimo, 142 P.3d 352 (Nev. 2006); West's Key Number Digest, Infants 12(8).

Statute criminalizing the use of technology to lure children away from their parents or guardians did not violate the Commerce Clause; even though electronic messages involved could have briefly been transmitted to places outside of state, criminalizing transmissions was not burden on interstate commerce, especially in light of fact that statute criminalized not digitized message itself but intent of message. U.S.C.A. Const.Amend. 1; West's NRSA 201.560. State v. Colosimo, 142 P.3d 352 (Nev. 2006); West's Key Number Digest, Telecommunications 1314.

Detective's testimony concerning contents of Internet chat between defendant, who allegedly solicited sexual act in exchange for money, and detective, who was posing as 14-year-old girl, was admissible under state wiretapping statute in prosecution for certain prohibited uses of computer services, although detective's recording of chat was illegal under statute and could not be admitted into evidence; detective would not be disclosing information obtained through interception because his knowledge about contents of chat came from personal observations as participant. RSA 570-A:2, subds. 1(c), 2(d), 570-A:6, 649-B:4. State v. MacMillan, 152 N.H. 67, 872 A.2d 1031 (2005); West's Key Number Digest, Criminal Law 394.3.

Statute that defined offense of importuning, that prohibited adults from using telecommunications device to solicit minors for sexual activity, and which applied to speech between adult and law enforcement officer posing as minor, and required that offender believe person he is soliciting is person who is 13 years of age or older, but less than 16 years of age, did not violate defendant's due process rights by permitting law enforcement to entrap defendant; police officer merely provided opportunity for defendant to commit offense of importuning by creating screen name and profile for fictitious minor female and signing on to instant messaging service, defendant initiated conversations with person he believed to be minor and brought up topic of sexual activity, and officer merely agreed to defendant's proposal to meet in person. U.S.C.A. Const.Amend. 14; R.C. § 2907.07(E)(2). State v. Snyder, 155 Ohio App. 3d 453, 2003, 2003-Ohio-6399, 801 N.E.2d 876 (3d Dist. Allen County 2003), appeal not allowed, 102 Ohio St. 3d 1422, 2004-Ohio-2003, 807 N.E.2d 367 (2004); West's Key Number Digest, Libel and Slander 37(6.1).

Evidence was sufficient to support conviction for criminal attempt at unlawful contact with a minor based upon defendant's sexually-explicit communications to law enforcement officer posing as 12-year-old girl in internet chat room sting operation; mens rea element of offense was established by defendant's admission that he believed he was communicating with 12-year-old girl, content of his e-mails over 10-day period, and defendant's substantial steps in attempting to meet purported minor for sexual contact, and fact that defendant was actually communicating with officer, as opposed to 12-year-old girl, was irrelevant for purposes of sustaining conviction. 18 Pa.C.S.A. §§ 901, 6318(a)(1), 7512(a). Com. v. Crabill, 2007 PA Super 161, 926 A.2d 488 (2007); West's Key Number Digest, Infants 13.