Are aggressive sex stings constitutional or entrapment? Learn about your legal defenses against an online solicitation of a minor charge.
Americans across the nation are being snared in aggressive online solicitation of a minor stings led by federal, state or local authorities. Many such Americans are innocent of the crime for which they are charged.
In the Houston area, such victims can get help from experienced Houston sex crime defense lawyer Neal Davis.
What is Online Solicitation of a Minor
According to Texas sex crime laws, “online solicitation of a minor,” occurs when a person 17 or older uses email, texts (sexting), the Internet or other electronic methods to try to get a minor to engage in sexual conversations or activities, either in person or via the Internet. Such contact can include exchanging sexually explicit videos or photos or using explicit sexual language.
Legal Hurdles for Police Sex Sting Operations
The broad legal powers provided by Texas sex crime laws - along with public outrage, notoriety via media exposure and public shaming of defendants - can raise the legal hurdles of individuals caught in police sex sting operations.
Consider this: In Texas, a person can be convicted of a felony crime for online solicitation of a minor and sent to prison without ever having actually met the minor. In fact, a defendant can face prison time without ever contacting a minor online, since the person at the other end may have been a law enforcement officer posing as an underage girl or boy.
Such broad legal powers and public sentiment against online solicitation have spurred massive sting operations by authorities throughout the state. For instance, an online solicitation of a minor sting operation in Montgomery County led three dozen men being arrested in December of 2016.
That sting, which lasted for several months, was known as Operation Safe Holiday. Most of those arrested were charged with online solicitation of a minor. Some also face charges of promotion of child pornography and attempted aggravated sexual assault of a child. And though none have had their day in court yet, each has had his name and charge published in local newspapers.
What Are Online Solicitation of a Minor Stings?
As for what are online solicitation of a minor stings involve, they are elaborate police operations in which officers present themselves online as an underage minor - say, a 14-year-old girl or boy - by offering fictitious information. While posing as a minor, the officer invites online communication with an adult via chat rooms, websites, via email, texts or other means.
If the ensuing communication leads to online solicitation of a sexual nature by the adult, the adult can be charged with that crime, a felony whose penalties include sex crime prison sentences of up to 20 years.
Are Police Sex Stings Unconstitutional?
Some would argue these stings constitute “entrapment” by a police law officer who encouraged and persuaded the adult to commit a crime. But though a claim of entrapment can be used as a criminal defense in some cases, in Texas it’s difficult to use entrapment as a criminal defense against a charge of online solicitation of a minor.
Under Texas sex crime laws, it makes no difference if the person contacted by the adult is a police officer and not a minor, as long as the adult who’s later charged with the crime believes the police officer is a minor.
Under Texas Penal Code § 33.021, a “minor” contacted for online solicitation is a person “who is younger than 17 years of age” or “whom the actor believes to be younger than 17 years of age” (the actor being the person charged with the crime).
Thus, prosecutors only must prove that the defendant meant for online solicitation of a sexual nature to be with a minor, even if the person was, in fact, an adult police officer.
Entrapment Defenses Against Online Solicitation
As Houston Criminal Defense Attorney Neal Davis well knows, entrapment defenses against online solicitation - while often difficult - are indeed available. One such entrapment defense is noted at Texas Penal Code § 8.06.
This entrapment defense holds that entrapment is not allowed if the person charged with online solicitation was induced to do so by a law officer who used persuasion or other strategies to encourage the crime. However, an entrapment defense doesn’t apply when the law officer simply gave the defendant the opportunity to commit the crime.
To assess if a police sting constitutes entrapment, Texas courts must determine two things:
- A subjective evaluation that, if not for the law officer inducing illegal solicitation, the defendant would not have done so
- An objective evaluation of whether the law officer’s means of inviting online solicitation would induce an average, customarily law-abiding citizen to commit the crime
In other words, if the defendant previously had shown an inclination to pursue online contact of a sexual nature, the defendant would not be considered an average, customarily law-abiding citizen with no such proclivities who was induced to turn that way by police. Also, law officers’ strategies must constitute active and overt persuasion, rather than simply temptation.
These factors can make it difficult to use entrapment as a defense against online solicitation of a minor. For entrapment to succeed as a defense, a law officer would have to be deemed to have used extreme persuasive tactics to which even an average, law-abiding citizen might respond.
Other Sex Sting Defenses
Though Texas laws are tough on sexual predators, innocent victims of overreaching police stings have legal defenses - sex sting defenses which the Neal Davis Law Firm can provide.
For instance, a valid legal defense is to claim that the defendant was not over three years older than the minor and the minor consented to the conduct. If the adult and minor were legally married, this is also a legal defense.
Hire a Sex Sting Defense Lawyer
With so many Americans being rounded up by aggressive law officers posing as children in elaborate police stings, some may not be guilty. But though they face daunting legal hurdles, defendants can get a sex sting defense lawyer with the experience and knowledge to fight for their rights.
Houston criminal defense attorney Neal Davis is such a lawyer. With over 20 years of experience, he recognizes that Texas needs to protect innocent children from sexual predators. But he also believes that those who are innocent of online solicitation must be defended to the fullest extent of the law.
Neal Davis can use sex crime defenses such as these to fight charges stemming from unconstitutional or overly-aggressive police sting operations. Charges may be reduced and jail time may be avoided, along with registering as a sex offender. In many cases, we are able to get cases acquitted before going to trial.
Contact the Neal Davis Law Firm today for a free legal review of your case. Just submit a contact form or call 713-766-0760 today. We’ll quickly respond with help for your case!