The Minnesota Court of Appeals Finds Parts of the State’s Solicitation of a Minor Statute Unconstitutional

Minnesota Statute § 609.352 prohibits the solicitation of children to engage in sexual conversation that may culminate in the perpetrator inviting the minor to meet him/her with the purpose of engaging in sexual conduct; however, recently, two portions of this law have received significant court attention questioning their constitutionality. These two sections are Subdivision 2a—Electronic solicitation or children and Subdivision 3—Defenses.

Specifically, electronic solicitation of children refers to an individual 18 or older who uses any electronic device that can store data—computer, Internet, tablet, and/or smart phone—to solicit sexual conduct with someone the offender reasonably believes is a child. The defense portion of the law states that mistake as to age is not a legitimate defense to prosecution.

Enacted in 2007, the statute sought to criminalize “grooming”—or the systematic behavior by sexual predators to engage in explicit sexual conversations with a child (age 15 or younger) and expose them to pornography in order to “acclimate the child toward a sexual encounter.” The biggest issue is that the statute’s language that says “or any person” would, essentially, criminalize any sexual conversation between two adults, which is legally permissible.

Thus, the following cases illustrate how Minnesota’s Solicitation of a Minor statute has been found to be unconstitutional.

State v. Muccio

On 20 June 2016, the Minnesota Court of Appeals held in State v. Muccio, 881 N.W.2d 149 (2016), that subdivision 2a was unconstitutionally vague and violated the First Amendment. This case concerned defendant and middle school lunch lady Krista Muccio’s conviction for engaging in sexually explicit conversations via Instagram with a 15-year-old boy. She asserted that the law was overbroad and unconstitutional because it suppressed free and protected speech. The Court agreed.

In its decision, the Court determined that:

  1. The statute’s intent requirement is easily satisfied if the adult simply has “the intent to arouse the sexual desire of any person” and this intent could be directed at an adult, not a child.
  2. The communication need only relate to or describe sexual conduct.
  3. The statute fails to adequately define “engage”, thus raising questions as to whether one-sided communication is sufficient under the law.

With the statute’s original wording, the Court expressed its concern that several innocent people may face similar charges; particularly musicians, film producers, or authors who—through the course of their art—may produce sexually explicit material that could be taken the wrong way and assumed to be geared specifically toward minors. Moreover, adults who text, message, Snapchat, Instagram, or some other type of electronic media anything that could be remotely construed as of a sexual nature could also face felony criminal charges.

Understandably, the government has a compelling interest in protecting minors from sexual exploitation and abuse; however, the statute’s language was not narrow enough to serve this interest. Thus, this section is overbroad and, subsequently, unconstitutional.

The appeal, initiated by Dakota County prosecutors, alleged that:

  • Muccio’s speech was not entitled to First Amendment protection because soliciting sexual activity from a child is already illegal; however, the Court held that censorship may not occur if the potential speech might encourage illegal conduct.
  • Muccio’s speech was obscene and related to child pornography and was, therefore, not protected by the First Amendment; however, again, the Court ruled otherwise.
  • The public could rest assured that prosecutors would exercise sound decision-making to ensure that the law was not absurdly applied; however, the Court expressed its concern that such discretionary power could easily be abused.

State v. Moser

Soon after Muccio, the Appellate Court held in State v. Moser, No. A15-2017, 2016 WL 4162818 (2016), that subdivision 3(a) was also unconstitutional and violated the defendant’s right to due process by imposing strict liability for the underlying felony offense. In this case, Mark Moser engaged in a sexually explicit dialogue with a 14-year-old girl via Facebook Messenger. The victim told Moser that she was 16 years of age—which is the legal age of consent in Minnesota. However, he was subsequently convicted with solicitation of a minor. Moser claimed denial of due process when the lower court denied his motion to present mistake of age as a legitimate legal defense.

The Court of Appeals did, in fact, reverse Moser’s conviction and agreed that the statute—as written—violated substantive due process related to online solicitation that occurs exclusively online where the alleged victim claims to be old enough to consent.

Again, whereas the Court held that there is a compelling government interest in preventing the sexual solicitation of minors, it also held that there must be an element of mens rea (conscious knowing and intent) to qualify as a criminal act. Thus, if the alleged victim represented herself as older than she really was then the defendant should be allowed to raise the affirmative defense of violation of substantive due process.

Of course, Dakota County is appealing the decision to the Minnesota Supreme Court. A similar Texas law was also overturned.

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