MN Appeals Court weakens state’s child solicitation law

[This post has been updated to include reaction]

In September 2014, Mark Moser solicited on Facebook, a 14-year-old girl, who said she was 16. The two exchanged lurid messages, although the two never met. But he was convicted of soliciting a child to engage in sexual conduct in violation of Minnesota statutes.

At his trial, he tried to raise a so-called “mistake of age” defense, which would have required the state prove that he knew he was soliciting sex from a child. Citing the state’s law, the judge wouldn’t allow it. He was found guilty and his three-year sentence was stayed.

Moser appealed his case to the Minnesota Court of Appeals, saying the refusal to allow the defense violated his right to due process.

Today, the court agreed, weakening the statute which specifically bars the defense.

The issue is an intriguing one that has not been addressed by either the Minnesota Supreme Court or the U.S. Supreme Court: Does a person have to know he’s soliciting sex from a minor to be convicted of soliciting sex from a minor?

The Legislature inserted the language into the law after hearing testimony from a county attorney who said even if a victim lies about his or her age, the adult “should not be allowed to hide behind a mistake-of-age defense because the safety and protection of children are at issue. ”

“The rights to a fair trial and to present a complete defense also have long been at the core of due-process protections,” Judge Lucinda E. Jesson wrote for the three-judge panel in today’s decision, declaring that there’s no “compelling state interest” to bar the “mistake of age” defense.

When the child-solicitation statute was originally enacted in 1986, its focus was on in-person solicitation. As times changed, the statute was amended to expand the meaning of “solicits” to include solicitation “by telephone, by letter, or by computerized or other electronic means.”

There can be no question, as the district court stated, that protecting the safety of children from sexual predators is a compelling government interest. The goals behind the child-solicitation statute are as compelling today as they were in 1986, when the law first passed.

But there are “less burdensome ways” to do it, she wrote.

Further, the child-solicitation statute imposes an unreasonable duty on defendants to ascertain the relevant facts. In cases where the defendant encounters the victim in person, it is reasonable to require the defendant to ascertain the victim’s age.

For example, it does not offend due process to charge the child pornography producer, in-person child solicitor, or child rapist, with knowledge of the victim’s age.

Where solicitation occurs solely over the Internet, however, it is extremely difficult to determine the age of the person solicited with any certainty. Moser solicited the child solely over the Internet and never met her in person.

The Court of Appeals said that under the child-solicitation statute, Moser is labeled a felon, subject to a three-year prison sentence, required to register as a predatory offender for the next 10 years, and assigned one criminal-history point for his conviction.

All of these penalties accrue without Moser being able to defend himself by saying that he did not know he was soliciting a child. That the child lied and told him that she was 16 years old is no defense under a strict application of the statute as written.

Although we take no position on the precise penalty that would bring the statute within constitutional bounds, felony liability and predatory-offender registration exceed what is permissible for the strict-liability offense at issue in this case.

The court reversed Moser’s conviction. He will not get a new trial because the lower court agreed to abide by the decision of the Court of Appeals.

There are weights and balances in the scales of justice. Sexual solicitation of children is a grave concern. But the concept that wrongdoing must be conscious in order to be criminal and subject an offender to years of imprisonment has long been a foundation of our justice system.

When the person solicited represents that he or she is 16 or older, the solicitation occurs over the Internet, and there is no in-person contact between the defendant and the person solicited, the prohibition in Minnesota Statutes section 609.352, subdivision 3(a), on a person charged under the child-solicitation statute raising the affirmative defense of mistake of age violates substantive due process.

The district court erred by denying Moser’s motion to raise that defense.

The statue violates the constitutional right to due process because people can be convicted even though they honestly and reasonably believe they are communicating with an adult and have no intention of soliciting a child.

“The child solicitation law was written in 1986 and has not been modified to reflect the fact that people over the internet sometimes misrepresent themselves, and that determining a person’s age over the internet is virtually impossible,” Jeff Dean, the attorney for Moser, said in a statement to MPR News.

“An internet user should not be convicted of a serious felony because a child has managed to fool him into believing she or he is an adult,” he said. “Today’s ruling will prevent the injustice of people being convicted of a crime they had no intent to commit.”

It is likely this case — or another like it — will soon end up before the Minnesota Supreme Court.

  • Rob

    I wouldn’t describe a ruling that finds a law to be arbitrary and unconstitutional as “weakening” said law.

    • It is from its LEGISLATIVE intent.

      • Rob

        Speaking of intent, criminal laws, as you know, generally require a mens rea element to be held valid. Whatever intent the legislature had in advancing this law, it was incompetent in the manufacturing of same.

        • You should read the opinion. It addresses like that and the circumstances under which a mens rea element is not allowed.

          It’s not incompetence. It’s a different interpretation of “public welfare.”

          • Rob

            you mean an extra-constitutional, conservative take on what “public welfare” means?

          • That’s a philosophical and political exercise, not a matter of competence.

            The lawmakers at the time couldn’t possibly have foreseen Facebook.

            In any event, you’ll find the discussion of this starting on page 9 of the opinion.

  • Dan

    “the lower court agreed to abide by the decision of the Court of Appeals”
    “It is highly likely the case will end up before the Minnesota Supreme Court”

    I don’t understand.

    • JamieXH

      Me neither. It also says he would probably not be tried again. Those three elements don’t make sense to me.

    • From the opinion:

      After his motion was denied, Moser stipulated to the prosecution’s case to obtain review of the district court’s pretrial ruling under Minnesota Rule of Criminal Procedure 26.01, subdivision 4. Moser waived his right to a jury trial and agreed to have the district court determine his guilt based on the prosecution’s evidence. Moser and the prosecutor also signed a written document acknowledging that the district court’s pretrial orders “in which the court denied [Moser’s] Motion to Permit the Affirmative Defense of reasonable Mistake of Age [are] dispositive or that a trial will be unnecessary if [Moser] prevails on appeal.” Based on the complaint and police reports presented by the state, the district court found Moser guilty of violating Minnesota Statutes section 609.352, subdivision 2. The district court stayed imposition of sentence for three years and placed Moser on probation. This appeal follows.

      • Dan

        I think my confusion comes from reading the Strib story just before reading this one.
        Their wording (emphasis mine – sorry can’t bold/underline, I promise I’m not yelling) “Before the judge ruled, PROSECUTORS and the defense knew the decision was going to be appealed. They and the judge agreed THE RULING FROM THE COURT OF APPEALS would be ‘dispositive'”

        Is that incorrect, and they should have written “all appeals” instead of “the court of appeals”?

        Or is there some other agent of the state, other than the prosecutor, who can and likely will appeal? Or some other mechanism?

        It doesn’t seem like the prosecutor could both accept and appeal the court of appeals ruling, seems like a logical feat even for an attorney 😉

        • Mike Freeman’s office cut the deal at the district court level so I don’t know if that’s at all binding on Lori Swanson,who is a party to the appeal.

          I can’t imagine Swanson letting a provision in the law die without a Supreme Court ruling. But maybe.

          But if it’s not this case, you can bet that some other guy trying to solicit sex online will try to use the “I didn’t know she was 14” defense. In fact, there’s going to be a run on filings to use the defense in district court cases like this now.

          It’s going to get the Supreme Court in one fashion or another pretty soon.

          • Laurie K.

            The AG’s office had an opportunity to submit a brief at the time of the appeal and chose not to, so yes, they are bound to the Court of Appeals decision. I agree though, it is likely that this will be appealed to the Minnesota Supreme Court.

  • lindblomeagles

    Once again, US courts cower to demands for a free, unregulated Internet. Sure this man didn’t know he was talking to a teenager. Given Minnesota already has one of the worst sex trafficking problems in the nation, this ruling gives a green light to all Internet sex solicitations — in short, not only will we be unable to stop child predation, we also won’t make a dent in our sex trafficking problem either.

  • This is a very good decision. Our approach to online solicitation has been Orwellian. There is no way to check IDs online, we don’t know who we are even speaking to in the first place.