Traveling to Meet a Minor, Solicitation of Sex with a Minor, and Child Pornography – Legal Overview by Clearwater Defense Attorney Charles Holloway, P.A.
Law enforcement agencies are engaged in a persistent effort to identify, arrest, and prosecute individuals who they believe are using the internet and social media to view child pornography or solicit sex with a minor. Law enforcement is extremely dedicated to this effort and some of the methods they use are questionable at best: posing as a minor child, using sexually suggestive language, and making ambiguous statements in order to invite incriminating statements in return. They employ thee techniques as they use such tools and venues as: internet chat rooms, text messaging, social networking sites, Facebook, My Space, Craig’s List, etc. Police agencies also monitor websites that are known for sharing pornographic photos; thereby obtaining the internet i.d. of the visiting computer and the person’s name and physical address to which the internet service is provided.
As a result, when it comes to the use of computers and social media, there are a number of ways in which a person can find himself in trouble with the law. A list of the primary examples includes the following statutes:
- Possession of Child Pornography – 827.071(5)(a)
- Transmission of Child Pornography – 847.0137
- Transmitting Harmful Material to a Minor – 847.0138
- Prohibited Uses of a Computer – 847.0135(5)(a)2
- Seduction of a Child Using the Internet – 847.0135(3)(a)
- Solicitation of a Child (Parent or Guardian) Using the Internet – 847.0135(3)(b)
- Traveling to Meet a Minor – 847.0135(4)(a)
Some of the penalties associated with a conviction under these statutes can be severe. Examples include:
- State prison (Traveling to Meet a Minor requires a minimum of 21 months in state prison, before consideration of any prior record).
- Registration as a Sexual Offender.
- Probation or Community Control (house arrest) that requires a demanding set of conditions:
- Sex Offender counseling
- Random searches of your person, vehicle, and residence
- Annual polygraph exam
- Restrictions on location of residence and use of your vehicle
- No contact with minor children or employment with an entity that involves such contact
It is understandable that you may feel a great deal of stress and embarrassment if you have been charged with any of these crimes. It is normal to worry about the impact that such charges can have on your reputation, employment, and freedom. However, there is reason for hope in the form of various legal defenses and factors which may serve to mitigate and reduce the severity of the charges. Some examples of potential defenses include:
- Your statements and/or actions do not create sufficient proof that you had the “intent” to commit a particular crime. It is not enough that you acted negligently or intended a different result or purpose; the State is required to prove that you intended to violate the specific crime alleged. For example:
- Traveling to Meet a Minor – 847.0135(4) (a) requires proof that you actually traveled for the purpose of engaging in sexual activity with a child. If you communicated a plan to meet for a lawful purpose other than sex, then you did not have the intent and purpose required by the statute.
- The statute also requires proof that you acted to seduce the minor. If you only responded to an offer of sex, without attempting to persuade them yourself, you did not intend or act to seduce.
- Your intent may have been to discuss sexual matters and make arrangements to meet with a person whom you believed to be an adult; not to converse and interact with a minor.
- Law enforcement may have acted in a manner which confused or misled you. For example:
- The police used language that could have an ambiguous or double meaning
- Police misinterpreted your innocent words to have a criminal meaning
- Police engaged in rapid conversation and jumped between topics, so that your responses appear to be about a subject other than what you intended
- You were “entrapped” by the words and actions of law enforcement. This can occur when a law enforcement officer encourages you to commit a crime that you were not predisposed to commit (i.e. did not intend to commit beforehand). As a practical matter, the primary focus of this defense is on whether you were predisposed, and relevant evidence may include the following:
- Who initiated the conversations about sex
- Whether you stated a reluctance to discuss sex in detail
- The degree to which law enforcement encouraged discussion about sex
- The amount of time spent in discussion
- Whether you traveled to meet, directly after your conversations
- Whether your travel had some separate, legitimate purpose
- Some offenses may be subject to “double jeopardy” dismissal under certain, special circumstances. For example, if you are charged with Traveling to Meet a Minor and Solicitation of a Child, one of the charges may be dismissed if you traveled shortly after your discussion was concluded.
- Law enforcement found information on a device to which other persons could have had access. For example, this could include computers located in a common area of the home, computers with an unsecure, wireless network connection, and computers used in public places such as libraries and internet cafes.
- Law enforcement found information which it cannot completely and accurately extract and/or analyze. This can be the result of encryption, novel software programs, or electronic information that changes or is deleted when viewed.
Some persons suffer from mental and emotional conditions, which may make them more comfortable seeking personal relationships by means of electronic communication. This is often more than an expression of simple loneliness; anxiety, depression, and certain disorders can lead to a sense of isolation and the resulting need for human connection, regardless of the risk involved. If your mental and emotional health are at issue, a psychological evaluation may help to identify specific conditions which can be used to persuade the State Attorney to reduce the charges and the penalties alike.
A psychological evaluation may also be useful in determining whether you present a risk of repeating an offense (recidivism) and whether you have a pronounced sexual attraction to minor children (pedophilia). If an evaluation concludes that you do not present a risk of either of these, this can also be used to persuade the State to be lenient.
Another form of mitigation can involve a “downward departure sentence”. This refers to the ability of a judge to impose a sentence which is less than that required by statute. Some grounds for departure include:
- A negotiated plea agreement (plea bargain) with the State Attorney for a reduced sentence.
- A plea bargain that reduces both the charge and the sentence.
- It is your first offense, you committed it in an unsophisticated manner, and you have shown genuine remorse for your actions.
- You have a mental/emotional health issue which does not involve drug addiction, and you are agreeable to treatment.
- The alleged victim initiated, provoked, or was a willing participant in the incident.
- You cooperate with law enforcement to achieve the arrest of another person who has committed a crime.
- You are less than 21 years old at the time of your sentencing.
As you can see, there is indeed reason to hope that your situation can be improved; that you will survive this unpleasant episode to resume your life, without unnecessary anxiety and fear.
If you have been accused of, or arrested for, a crime in the Clearwater, St. Petersburg, or Tampa area, you should contact a defense attorney immediately to help ensure your case has the best possible outcome. To schedule a free consultation with Attorney Charles Holloway, P.A., at his office in Clearwater, please call (727) 446-8303 or e-mail Info@PinellasDefense.com.