Thursday, January 7, 2010

Is it even a crime?

Yesterday I read about a 42 year old Houston woman who was charged with the online solicitation of a minor and enticing a minor after returning from a tryst with her teenage paramour in Canada. The boy in question is 16; and while that would make him a minor according to Texas law, in Canada the age of consent is 16. In 31 states, and the District of Columbia, the age of consent is only 16.

When Canadian authorities, acting on a complaint from the boy's mother, found the couple, they took the boy home and told her it was best to leave. She was not arrested because no law had been broken. She was arrested upon her return to Houston.

According to Section 33.021(c) of the Texas Penal Code,
"A person commits [the offense of online solicitation of a minor] if the person, over the internet, by electronic mail or text message or other electronic message service or system, or through 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..."
The Texas Penal Code defines a minor as "an individual who represents be younger than 17 years of age, or an individual whom the actor believes to be younger than 17 years of age."

A person "entices a child" when "with the intent to interfere with the lawful custody of a child younger than 18 years, he knowingly entices, persuades or takes the child from the custody of the parent...of such child." Enticing a child is a misdemeanor unless the actor entices the child with the intent to commit a felony. Then enticing becomes a felony, too.

Once again, Canadian authorities had the opportunity to arrest the woman if she had violated Canadian law -- but they didn't.

Was a crime even committed? Can one solicit a minor if the target of the solicitation isn't considered a minor where he lives? Can one entice a minor to commit a felony if the act isn't a felony? Was anyone in the State of Texas harmed by the woman's conduct?

The job of the district attorney is to seek justice for the victims of crime and for the State of Texas -- it is not to prevent possible crimes from occurring. Sure, it's a flashy case sure to grab headlines but what purpose is being served?

This woman's acts may have been distasteful or, as some might say, depraved, but that doesn't make them criminal.

See also:

"Woman arrested for luring" The Barrie Examiner (Jan. 7, 2010)


Thomas Hobbes said...

Regarding the online solicitation, it doesn't appear to matter where the boy was. The statute clearly states that the failure to meet is not a defense to prosecution, so all that really seems to matter is where the woman was at the time of solicitation and what age she believed the boy to be.

On the other hand, I think the enticing charge has to go away because it matters where the boy was.

Or, I could be wrong . . .

Houston DWI Attorney Paul B. Kennedy, said...

Whether the prosecutor agrees with me or whether the Court of Criminal Appeals agrees with me, in this case I think you have to look at who was being solicited and whether or not that person was or was not a minor.

Had the woman met the teenager in Canada she would never have been arrested because she didn't commit a crime. Yet, because she met him online she's subject to criminal prosecution in Harris County.

I would argue further that if the woman knew the teenager was 16 and that the age of consent in Canada was 16 that no crime was committed because there was no minor involved.