2015.36: The Unconstitutionality of Section 33.021(c)

 Posted on February 04, 2015 in Uncategorized

Here's my brief on the unconstitutionality of the balance of Texas's Online Solicitation of a Minor statute, Texas Penal Code Section 33.021. I have two appeals pending, both in courts that have already upheld the statute in the face of First Amendment challenges:

/wp-content/uploads/2015/02/Bennett-33.021c-First-Amendment-Brief.pdf

Both the Beaumont and First Courts of Appeals analyzed Section 33.021(c) as statutes regulating conduct rather than speech. This is plainly incorrect: speech that is unprotected because it incites the imminent commission of a crime is still speech.

The San Antonio Court of Appeals upheld Section 33.021(c) in the face of a vagueness challenge, holding:

The requisite intent arises within the conduct of soliciting the minor, and must exist at the time of the prohibited conduct of solicitation. Id. Indeed, it is the requirement that the defendant must solicit "with the intent that the minor will engage in sexual contact" that operates to make otherwise innocent conduct, i.e., soliciting a minor to meet, into criminal conduct. It follows then, that for purposes of a subsection (c) solicitation offense, it does not matter what happens after the solicitation occurs because the offense has been completed; it does not matter whether the solicited meeting actually occurs, or that the defendant did not intend for the meeting to actually occur, or that the defendant was engaged in a fantasy at the time of the solicitation. [AB1]

It cannot be true both that "[I]t does not matter... that the defendant did not intend for the meeting to actually occur, or that the defendant was engaged in a fantasy at the time of the solicitation," and that "The requisite intent [that the minor engage in sexual contact]... must exist at the time of the prohibited conduct of solicitation." Either the defendant intended to engage in sexual conduct (and therefore intended to meet) or did not intend to meet (and therefore did not intend to engage in sexual conduct).

I am confident that the statute will, if the question ever reaches the Court of Criminal Appeals or the U.S. Supreme Court, be held unconstitutional. Unfortunately, I'm swimming upstream against some ill-considered authority. This would be easier if it had been done right in the first case.