Joan Huffman is the Texas Senator (and former Harris County criminal judge) responsible for Code of Criminal Procedure article 38.37 section 2, which provides that extraneous offenses are admissible in the trial of someone accused of a sex crime with a child to prove “the character of the defendant and acts performed in conformity with the character of the defendant.” My brief on the unconstitutionality of that statute is here.

Not to gertrude, I am not inclined to cut Huffman any slack.

But when I read this, I was pleasantly surprised:

Section 33.021, Penal Code, is amended to read as follows:

(a)(a) In this section:

(1) “Minor” means:

(A) an individual who isrepresents 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.

(2) “Sexual contact,” “sexual intercourse,” and “deviate sexual intercourse” have the meanings assigned by Section 21.01.

(3) “Sexually explicit” means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.

(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 Procedurearouse 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.

(c) A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

(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.

That is what Texas’s Online Solicitation of a Minor statute, Texas Penal Code Section 33.021, will look like if Huffman’s proposed amendment, SB 344, passes in its current form. It is not quite right, but is much closer to constitutional than the statute as it exists now. It will also be much harder for the State to prove—constitutionality and prosecutorial convenience are a zero-sum game.

In subsection (a) Huffman proposes eliminating the “represents himself or herself to be” language from the definition of minor, so that a “minor” will be either an actual minor or someone the defendant believes to be a minor. So on the one hand if the “minor” is a cop the State will have to prove beyond a reasonable doubt that the defendant believed the cop’s “minor” schtick.

On the other hand it appears at first blush that the revised statute would allow a defendant to be held liable for talking dirty to an actual minor pretending to be an adult, even if the defendant believed the minor to be an adult, as an adult can be held liable for having sex with a minor who is pretending to be, and believed to be, an adult.

It would appear that way only at first blush, though, because the dirty talk prohibition now requires the intent to commit a sex crime against a child. So even if the “minor” is a minor pretending to be an adult the State will have to prove that the defendant intended to do something to a child, which presupposes that the defendant believed a child was somehow involved.

I’m not entirely happy with describing the offense as “communicat[ing] in a sexually explicit manner with a minor” “with the intent to commit” (for example) sexual assault. At best it’s clumsy, with no explicit connection between the sexual assault and the communication.

At worst it renders the statute unconstitutional again. The communication itself is constitutionally protected, and the state of mind itself is constitutionally protected. It is only when the intent is put into action, either physically or with a solicitation, that it can be constitutionally forbidden. “Incitement” is only unprotected if the speech is intended to induce or commence illegal activities.

So, for example, if D communicates in a sexually explicit manner with A while he intends to commit sexual assault with an unrelated B, the communication would still be constitutionally protected.

Or if D communicates in a sexually explicit manner with A and intends to commit sexual assault with A, but if the speech is not intended to induce or commence the sexual assault or any other illegal activity, the speech is constitutionally protected.

This may be a narrow class of protected speech that is criminalized; I haven’t yet worked through whether this invalidates the statute as to D or as written, but it seems to me that subsection (b) could be more clearly written:

(b) A person who is 17 years of age or older commits an offense if, with the intent to commit induce or commence commission of an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure with or against a minor, 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 athe minor; or

(2) distributes sexually explicit material to athe minor.

With these small changes, the statute is almost in line with First Amendment incitement law. The only element of incitement that isn’t in the statute is imminence: for incitement to be unprotected speech the defendant must intend that a crime be imminent. There is, as you might imagine, not a lot of case law on imminence. If you stuck “the imminent” in between “commence” and “commission,” you’d have a statute that I’d have difficulty attacking (which is not to say that I won’t come up with something):

(b) A person who is 17 years of age or older commits an offense if, with the intent to induce or commence the imminent commission of an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure with or against a minor, 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 the minor; or

(2) distributes sexually explicit material to the minor.

So that’s (b).

Subsection (c), as it is now, is unconstitutional because, in conjunction with subsection (a)(1)’s definition of minor to include anyone who represents himself to be a minor; and subsection (d)’s exclusion of fantasy and lack-of-intent defenses, it criminalizes speech that is not incitement, and is therefore protected by the First Amendment. Huffman’s edits to (a)(1) and (d) eliminate this unconstitutionality. To nail it down, imminence should be an element in (c) as well—

(c) A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will imminently engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

—but the lack of imminence is a minor problem compared with the explicit elimination of fantasy and lack-of-intent defenses.

Subsection (e)(2) still creates a defense for the defendant who, believing a cop who is older than the defendant to be a minor, solicits the cop to have sex. There is no good reason that a 33-year-old defendant can legally solicit a minor who happens to be a 36-year-old cop, but a 40-year-0ld defendant cannot. While the legislature is mucking around in this statute it ought to rewrite (e)(2) as well:

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:

…

(2) the actor was not more than three years older than the minorthe younger of (A) the age of the minor; and (B) the age the actor believed the minor to be; and the minor consented to the conduct.

There’s probably an even better way to write that, but you get the gist: the age defense should be available if the nineteen-year-old defendant believed he was chatting with a sixteen-year-old, but it should not be available if the nineteen-year-old defendant believed he was chatting with a thirteen-year-old but was actually chatting with a forty-year-old cop (because, as a rule of thumb, a “thirteen-year-old” cruising for sex on the Internet is a forty-year-old cop).

I wouldn’t ordinarily suggest improvements to make a penal statute constitutional, but since I don’t have a philosophical problem with the state punishing people who are truly trying to pick up kids for sex on the Internet, and Joan Huffman seems to be headed in the right direction on this one, I’m happy to help.