Florida law prosecutes crimes which target children to an extreme degree. Soliciting a child or minor for unlawful sex is defined as using an online service, Internet service, or electronic device to seduce, lure, solicit, or entice a minor, or person believed to be a minor, to engage in the unlawful sexual behavior. Online solicitation is a particularly common form of the crime and will still incur charges whether or not a minor was actually harmed or engaged with.
Florida’s Laws on Solicitation of a Minor
Under Florida Statute § 800.04, a person commits “lewd or lascivious conduct” if he or she solicits a person under the age of 16 to commit a lewd or lascivious act. The statute does not define “lewd” or “lascivious,” but under Florida’s Jury Instruction 11.8, “lascivious” means something unchaste, wicked, lustful, sensual, or licentious.
It is important to note that in solicitation charges, the lewd or lascivious act does not have to actually take place. For the prosecution to file charges, is enough that the defendant solicited the act.
Soliciting a Minor with a Computer or Electronic Device
Florida will charge solicitation of a minor differently if the defendant used a computer or other electronic device to solicit a minor or if the defendant traveled to meet the minor. Under Florida Statute § 847.0135, a person will be charged with a third-degree felony if he or she knowingly used a computer or internet service, a bulletin service, or another electronic device to solicit or attempt to solicit a child to engage in a sexual act.
Examples of other electronic devices included in this statute are cell phones and tablets. The solicitation might occur through use of social media, instant messaging, text messaging, internet chatrooms, personals ads, or classified ad websites, like Craigslist. Craigslist shut down the personals section of its website in 2018 after being accused of facilitating child sex trafficking and child sex abuse.
It is also a third-degree felony in Florida to solicit or attempt to solicit the parent or guardian of a child to allow the child to engage in a sexual act. The law expressly states that a person can be charged even if the alleged victim is not actually a child. If the defendant believed the victim was a child, that is enough to file solicitation of a minor charges.
Traveling to Meet a Minor
In Florida, it makes a difference whether the defendant traveled anywhere to try to meet with a child for the purpose of engaging in a sexual act. If a person travels any distance to meet a child or a person believed to be a child after using a computer or other electronic device to solicit the child to engage in a sexual act, the person will be charged with a second-degree felony in Florida.
The charges will be the same regardless of whether the person traveled within the state of Florida, traveled to another state, or traveled into the state of Florida after soliciting a minor. It also does not matter how the defendant traveled — by automobile, by train, by air, or simply by biking or walking.
Penalties for Solicitation of a Minor in Florida
Lewd and lascivious conduct and solicitation of a minor are typically classified as second- or third-degree felonies in the state, depending on the circumstances of the case. A second-degree felony in Florida can lead to up to 15 years in prison, another 15 years of probation, and a $10,000 fine. If the defendant is under the age of 18, lewd and lascivious conduct will be charged in Florida as a third-degree felony. This is punishable by up to five years in prison and a fine of up to $5,000.
If a person uses different devices or services to contact and solicit a minor, each one will count as a separate criminal offense. For example, if you use your phone, computer, and tablet computer all to contact and solicit a minor, you would be facing 3 counts of solicitation of a juvenile and could get up to 45 years in prison.
A person could face additional charges for merely traveling to meet that child. Florida Statute § 847.0135(4)(a) outlines the charge and what the state must prove when attempting to secure a conviction: a prosecutor must prove any person who travels a distance either “within this state, to this state, or from this state by any means” and who attempts to or manages to engage in other unlawful sexual conduct with a child or with another person believed to be a child after using electronic devices, he or she could be facing traveling charges. This crime will lead to a sentence of at least 21 months in state prison, or longer if you have a previous criminal offense conviction, and mandatory registration as a sex offender.
Aside from the penal consequences of a conviction for soliciting a minor, a person will deal with potentially lifelong personal consequences. Sex offender registration affects where a person can live, where a person can go, and where a person can work. Even if homes or jobs are not near schools, playgrounds, or parks, a convicted sex offender will often have significant trouble finding gainful employment and secure housing. The effects of a conviction of this kind outlast a prison sentence and can leave people feeling depressed and isolated.
You have so much on the line when you are facing sex crimes charges in Florida. The state takes these offenses very seriously, and you need the best representation on your side to fight the case against you. Musca Law’s attorneys have 150 years of combined criminal defense experience, and we understand the work child solicitation cases require. Contact us today for a free case review with one of our experienced Florida lawyers.
Defenses to Charges of Soliciting a Minor
Your criminal defense lawyer will analyze your case for every available defense. Some defenses available in your case might be unique to the crime of child solicitation, while others might be more general. The individual circumstances and facts involved in your case will determine which defenses can be used and how those defenses should be raised during the course of the proceedings.
Entrapment
Florida law enforcement has begun using entrapment-like techniques to catch people suspected of wishing to solicit a minor. They do this by posing as minors, individuals who want to engage people in threesomes or group sex with a relative under the age of 18, or people looking for similar sexual encounters. If your attorney can prove you were induced to commit the crime you were not otherwise predisposed to do, the case could be dismissed for entrapment. However, the court will not be looking at the police during the court, rather your intention and predispositions.
They might consider the following circumstances:
- How long you were engaged with online interaction with a police officer
- Who initiated conversations about sexual topics and activity
- Whether you ever expressed reluctance to engage in explicit discussions
- Extent that an undercover officer persisted in inducing or encouraging communication of a sexual nature
- Whether your travel to the area was immediate or incidental to another planned travel
Lack of Criminal Intent
If you and your attorney can prove you lacked criminal intent in the case, the prosecution will have no ground to stand on. Guilt relies on proof beyond a reasonable doubt you intended to break the law. Lack of sufficient evidence is likely to weigh in your favor in the case.
Double Jeopardy
Under federal law, you can’t be punished twice for the same conduct. If solicitation and traveling occurred too closely together, they have to be yoked under one heading. It may be possible to file a Motion to Dismiss based on Hartley v. State, which could substantially reduce your sentence.
Psychological Considerations
If you have a predisposition to a mental health issue, or you’ve had them in the past, it is possible you may not have been entirely in control of your actions during the event. Your criminal defense attorney can tell whether or not an insanity defense might be prudent in your case and may secure a psychological evaluation from a well-regarded expert for you.
Pedophilia is an exclusive sexual attraction to minors and is considered a psychiatric personality disorder. An experienced psychiatrist may be able to offer a diagnostic procedure that distinguishes between true pedophiles and non-pedophilic offenders. However, the evaluator’s criteria don’t require proof any sexual activity with a minor took place, merely establishment based on urges or fantasies.
Expiration of the Statute of Limitations
Every case filed in the United States is subject to a statute of limitations. The statute of limitations in a criminal matter is the date by which the prosecution must file charges against the defendant. The date will vary based on the crime(s) alleged. If the statute of limitations date expires before the charges are filed, your attorney can raise this as a defense. Therefore, it is very important that one of the first things your attorney look into is whether the statute of limitations was intact at the time of the filing.
Insufficient Evidence
The most common defense in most criminal cases is arguing that the state has not proved its case. The burden of proof rests with the prosecution, and if it has not established the elements of the crime beyond a reasonable doubt, the defendant should not be convicted.
Illegal Search and Seizure
By way of the Fourth Amendment, every defendant has the right to be free from illegal searches and seizures. If the search was conducted without a warrant or something else was unlawful about the search or seizure of evidence, your lawyer will want to challenge the evidence as “Fruit of the Poisonous Tree.” This principle stands for the theory that the state should not be able to use evidence that was obtained in violation of the defendant’s constitutional rights. The evidence is fruit of a poisonous search.
Violation of Right to Speedy Trial
By way of the Sixth Amendment, every defendant also has the right to a speedy trial. If the trial does not take place within a reasonable amount of time and has been delayed by no fault of the defendant, this is another defense available to him or her.
Whether one or more of the above defenses is available in your case will depend on numerous factors. Your lawyer will help you understand the best options for your defense.
Methods for Defending Solicitation of a Minor Charges in Florida
Throughout your defense, your counsel will want to raise various defenses at various stages. Your defense in a Florida solicitation of a minor case might involve a combination of the below methods.
Pre-Trial Motions
As the name implies, pretrial motions are those filed before a trial commences. If certain affirmative defenses exist, such as entrapment (explained above), your attorney will want to raise these in a motion to dismiss. If certain evidence should not be admitted against you during the trial, your attorney will want to argue against the admission of this evidence in a motion to suppress.
- Motion to Dismiss – A motion to dismiss raises an affirmative defense and asks the judge overseeing the case to completely throw out the charges against you. A motion to dismiss might also argue that the established facts in the case do not support your having committed any crime. It is uncommon for these motions to be granted in criminal cases, but they are still filed as part of a thorough defense.
- Motion to Suppress – Motions to suppress often deal with violations of a defendant’s constitutional rights. If evidence in the case that the prosecution intends to use was gathered during an unlawful search, a motion to suppress will argue that it should be excluded from the trial because it violates your Fourth Amendment rights. If you make a statement to police without being read your Mirandarights, a motion to suppress will argue that the statement should be excluded as a violation of your Fifth Amendment rights.
These motions can be powerful tools in defending against solicitation of a minor charges. If a key piece of evidence is excluded from trial, the state will have a much harder time proving its case against you. An experienced lawyer, like those at Musca Law, will file these motions whenever possible to try to protect your rights.
Independent Investigation
Independent investigation is one of the most important ways of defending against criminal charges in Florida. It is vital to conduct your own investigation and not rely purely on the evidence gathered by law enforcement. In the case of solicitation of a minor, the allegations might be entirely false, and a careful investigation can uncover enough information to cast doubt on the prosecution’s case. Remember, it is up to the state to meet the burden of proof beyond a reasonable doubt.
Testimony
In any criminal case, witnesses will be deposed, and witnesses will take the stand if the case moves forward to a trial. The defense might call its own witnesses or might use testimony to its advantage during cross examination of the state’s witnesses. When the charges involve solicitation of a minor, the child might have to testify. Children often lack the mental and emotional capacity to provide completely accurate testimony, and they can easily be influenced by members of the family. These factors can lead to false allegations and an opportunity for the defense to refute the charges through testimony.
Plea Agreements
Plea agreements are frequently used in the criminal justice system to reduce the number or level of charges against a defendant and, therefore, reduce the sentence recommended by the state. Sometimes, plea agreements are beneficial, but they are not always in a defendant’s best interest. In sex crimes cases, like child solicitation, you will want to take every possible measure to avoid a guilty plea or guilty verdict. The consequences of a sex crime conviction can be more severe than other crimes in Florida, which means you should give even more careful consideration to any plea agreement offered to you by the state.
Ignorance of Age Not a Defense
Subsection (3) of Florida Statute § 800.04 expressly says that ignorance of age cannot be used as a defense in a Florida child solicitation case. This includes situations in which the subject of age never came up, assumptions as to the minor’s age, misrepresentations made by the minor as to his or her age, and any other circumstances giving rise to a bona fide belief by the defendant that the minor was an adult.
This is an especially important point because it means that you do not have to have intent to engage in a sexual act with a minor in order to be charged with solicitation of a minor. Even if you genuinely believed the person was 18 years old or older, or if he or she told you he or she was 18 years old or older, you can be charged with this crime. The fact that ignorance of age is barred as a defense shows Florida’s commitment to strict prosecution of child sex crimes.
Additional Prohibited Defenses to Florida Solicitation of a Minor Charges
Subsection (2) of Florida Statute § 800.04 prohibits additional defenses in a child solicitation case in Florida. These include any presentation of evidence as to the child’s chastity and any evidence of the child’s consent. Florida courts will not allow you to defend yourself in a child solicitation case by arguing that the minor has a history of engaging in sexual acts or enticing adults to engage in sexual acts.
The courts will also not allow you to defend yourself by saying the child consented. By law, persons under the age of majority do not have the capacity to consent to sexual acts. They legally cannot consent to engaging in any sexual conduct.
Child Pornography Charges
In solicitation of a minor cases, charges involving child pornography can often be added. If the act(s) of solicitation involved the creation or exchange of pornographic materials, the defendant can face child pornography charges. Florida’s laws on child pornography cover the following crimes:
- Manufacturing child pornography
- Distributing child pornography
- Possession of child pornography
- Exposing a minor to pornography
Solicitation cases might involve showing a minor pornographic materials or receiving sexually explicit images or videos of a minor. Child pornography charges can result in extreme penalties, as explained below.
Penalties for Child Pornography in Florida
Like other sexually motivated crimes in Florida, child pornography charges carry potentially severe punishment. The nature of the case and the facts involved will dictate what charges the prosecution files. Typically, child pornography cases in Florida can be punishable by the following:
- A prison sentence ranging from five years to 30 years, depending on the level of charges filed against the defendant;
- Potential sentence of life in prison for someone with prior convictions for sex crimes or child pornography;
- Imposition of significant fines ranging from $5,000 to $15,000, depending on the level of charges filed against the defendant;
- Required registration as a sex offender; and
- Restrictions on contact with children.
In cases involving multiple pornographic materials, materials featuring multiple children, materials featuring very young children, or materials involving bestiality or violence, the state might seek elevated charges. Federal charges might also be filed for child pornography if the circumstances warrant bringing the case to the federal level.
If your case includes both solicitation of a minor and child pornography, it is vital that you hire a Florida lawyer with experience in defending against both, like the attorneys at Musca Law.
Failure to Register as a Sex Offender
If a person is convicted of soliciting a minor, soliciting a minor with a computer or electronic device, or traveling to meet a minor, he or she will need to register as a sex offender in the state. A complete failure to register or any violation of the regulations associated with registration can lead to subsequent criminal charges. Such violations might include the following:
- Failure to complete quarterly sex offender registration;
- Failure to verify address for registration;
- Failure to report intention of moving out of the state or jurisdiction;
- Failure to report a change of address or change of name;
- Failure to report to the DMV;
- Failure to comply with registration requirements for employment or enrollment at an institution of higher learning; and
- Failure to comply with any other registration requirements.
This is not an exhaustive list but provides some examples of violations that can result in charges related to sex offender registration. The requirements of registration can be quite burdensome and significantly interfere with your life. These serve as additional reasons why you need to aggressively fight the charges when you have been accused of a sex crime, like solicitation of a minor.