2015.55: Texas SB344 vs. HB861


Texas Senate Bill 344:

By: Huffman S.B. No. 344

A BILL TO BE ENTITLED AN ACT relating to the prosecution of the offense of online solicitation of a minor.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 33.021(a)(1), Penal Code, is amended to read as follows:
(1) “Minor” means:
(A) an individual who is [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.
SECTION 2. Section 33.021, Penal Code, is amended by amending Subsections (b), (d), and (e) to read as follows:
(b) A person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure [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.
(d) It is not a defense to prosecution under Subsection (c) that[:
[(1)] the meeting did not occur[;
[(2) the actor did not intend for the meeting to occur; or
[(3) the actor was engaged in a fantasy at the time of commission of the offense].
(e) It is a defense to prosecution under this section that at the time conduct described by Subsection [(b) or] (c) was committed:
(1) the actor was married to the minor; or
(2) the actor was not more than three years older than the minor and the minor consented to the conduct.
SECTION 3. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.
SECTION 4. This Act takes effect September 1, 2015.

Texas House Bill 861:

84R17156 JRR-F By: Dale, King of Parker, Sheffield, Burkett,
H.B. No. 861
Frullo, et al. Substitute the following for H.B. No. 861: By: Herrero
C.S.H.B. No. 861

A BILL TO BE ENTITLED AN ACT relating to the prosecution of the offense of online solicitation of a minor.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 33.021(b), (d), and (e), Penal Code, are amended to read as follows:
(b) A person who is 17 years of age or older commits an offense if, with the intent to induce a minor to engage in conduct with the actor or another person that would constitute an offense under Section 21.11, 22.011, 22.021, 43.25, or 43.26 [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.
(d) It is not a defense to prosecution under Subsection (c) that[:
[(1)] the meeting did not occur[;
[(2) the actor did not intend for the meeting to occur; or
[(3) the actor was engaged in a fantasy at the time of commission of the offense].
(e) It is a defense to prosecution under this section that at the time conduct described by Subsection [(b) or] (c) was committed:
(1) the actor was married to the minor; or
(2) the actor was not more than three years older than the minor and the minor consented to the conduct.
SECTION 2. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.
SECTION 3. This Act takes effect September 1, 2015.

Both bills restore the “fantasy” defense, which is the other half of the amendment required to bring Section 33.021(b) and (c) in compliance with the First Amendment.

Huffman’s Senate Bill 344 is plainly superior, on First Amendment grounds, to Dale’s House Bill 861 because Huffman’s bill eliminates the prosecution of a defendant who is talking with an adult and knows it despite the adult’s “representing” himself as a child. Dale’s bill leaves the door open to such prosecutions.

Huffman’s bill is also superior on general legal grounds. Dale’s description of the required intent under subsection (b) is “to induce a minor to engage in conduct with the actor or another person that would constitute an offense….” This language comes from Section 15.031 of the Texas Penal Code, the general solicitation-of-a-minor statute, and it will not serve the intended purpose. When a defendant induces a child to have sex with him, the child’s conduct does not constitute an offense. It is the defendant’s conduct that constitutes an offense. We know what the legislature is trying to say; Huffman’s bill says it, but Dale’s does not.

Both bills limit the subsection (e) defense to violations of subsection (c) (actual solicitation). I think the reasoning may be that a defendant who is married to a child does not intend to commit a crime if he solicits her for sex. But age proximity and marriage are affirmative defenses under the predicate statutes; does the existence of an affirmative defense mean that the conduct would not be an offense? ((Further, the 18-year-old boyfriend who solicits his three-years-young girlfriend for sex may still be violating Texas Penal Code Section 43.25, which has an affirmative defense only for a two-year age difference)) We don’t want to prosecute defendants for talking dirty to their spouses or their age-appropriate girlfriends, so why not simplify by applying the defense to (b) and (c)?


15 responses to “2015.55: Texas SB344 vs. HB861”

  1. Does this mean, if I send an explicit picture to my 16yr old stepson (something weird / funny / etc) that I am violating the law, or only if I use that picture in an attempt to solicit him? I fail to see why (2) is needed, unless the worry is that someone would not use text words, but rather embed text into an image, in an effort to solicit.

    Also, being a non-lawyer, am I just reading this plain wrong on the fantasy front?
    …(d) It is not a defense to prosecution under Subsection (c) that[:…[(3) the actor was engaged in a fantasy at the time of commission of the offense]…

    As I read that, it doesn’t allow [restore] fantasy as a defense. While I certainly don’t want some old creep talking to my daughter online in an explicit nature, even if he has not true intent to meet her, the whole fantasy thing strikes me as Minority Report “precrime” / thought crime.

    What, if you know, is the basis for the 3 year rule (I assume it follow the statutory rape aging)? That seems arbitrary and rife for issues with minor-minor interactions (while we would all like to think 14 year old girls never date / sleep with 17 year old high school boys, it happens, and even as a dad, I’m not sure that should be a crime for the 17 year old), as well as the more common and normal 20 year old dating a 17 year old or 19 year old dating a 16 year old.

    Also, what, if any, are the repercussions for not knowing the age of the minor? While I can see the argument that if you are going to engage in the act of sex with someone, you better know their age, but now (unless I read this wrong) we are only talking about electronic interactions. Multiple times when I was in my late teens-early twenties, I met girls that lied about their ages, and eventually had that “fun” experience of calling her house and mom or dad picking up, hearing a voice deeper than someone that should know their daughter, and being told something like, “You do know that she is 15, right young man? Don’t call back!” That was fine, and a good way to solve the issue, but with kids relying on electronic communications, and it being as easy to lie about your age as changing a drop-down menu, it feels like the equivalent of me getting an aggravated dad answering the phone could easily be replaced with an arrest.

    • 1. If you sent an explicit picture to your 16-year-old stepson two years ago, it would have been a felony. I killed that statute. Under this more-constitutional amendment, you are only violating the law if you are using the picture in an attempt to solicit him.
      2. The bracketed text is deleted. I probably should have said that. The bills would delete the text saying that it is not a defense that the actor was engaged in a fantasy. So while you couldn’t argue “I never intended to meet with the minor; I was just fantasizing” as a defense under the old statute (one of the reasons the old 33.021(c), which has not yet been held unconstitutional, will be), under this statute you could.
      3. The basis for the three-year rule is that a line had to be drawn somewhere, and I guess society is not generally okay with a fourteen-year-old dating an eighteen-year-old or a twenty-year-old dating a sixteen-year-old.
      4. I think you’re right, and in those cases (where the defendant was communicating with someone whom he incorrectly believed to be 17-plus) the statute would be unconstitutional as applied. But at this point I don’t see this as rendering the statute unconstitutional as written.

  2. Does this mean the clock is now ticking, and the current law must be challenged or actually ruled unconstitutional BEFORE Sept 15, 2015 for those convicted under the statute as currently written?

    • The clock is ticking, but only for making the challenge. Anyone charged with violating, before 9/15/15, 33.021(c) can and should challenge the constitutionality of the statute before going to trial. There are at least three good challenges pending in different court of appeals districts now. I’d like to open up additional fronts before the statute changes.

      If any of those defendants win on appeal in the court of appeals, the Court of Criminal Appeals will decide the issue, and if the CCA decides it correctly then even those who didn’t challenge the statute but were convicted in the last eight years will be eligible for relief.

  3. So there is no legal way to keep an adult from asking and talking to a child, for sex? Is this why our forefathers cared about freedom of speech?

  4. How about this: it’s a crime to talk to a child with the intent to have sex with that child. It’s at least a state-jail felony and the question of intent is left up to the jury??

  5. Sorry for the inane comments, I’m sure you have a good point. And, kudos for calling out the lazy law firms who hire people to post stuff and think we won’t notice. 🙂

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