SOLICITING A LEWD ACT AND SEXUAL COMMUNICATION

In the world of Oklahoma Computer Sex Crimes, I see a significant number of charges titled Soliciting a Lewd Act, also known as Solicitation of a Minor or Lewd Solicitation of a Minor. These are the lewd proposal cases, and to a lessor extent the sexual communication with a minor charges. 

There has been a huge uptick in the number of these cases coming out of the DA's office all across Oklahoma. Part of that increase is from the proliferation of smart phones, social media, communication apps, and these "anonymous communication platforms," where you supposedly can remain anonymous. 

There simply are a lot more ways my clients can get charged and get in trouble these days, and the number of these ways a client can get charged increases with every new app or device that is produced.

The Solicitation of a Minor/Lewd Proposal to a Minor charge, is found under the Lewd Molestation Statute 21 O.S. 1123, and that is really where this lewd proposal to a minor exists in the law. Then charge comes through the computer sex crimes charges because most often it's a smart phone, cell phone, computer, or tablet that is used to communicate between the accused and the minor. Law enforcement, the prosecutors, and the Courts are looking for that actual “proposal” between the accused and the alleged victim. The Court is not just looking for sex talk, but did the client attempt to get the minor to go away to a private place for something that is sexual, or is the client trying to get the minor to engage in sexual intercourse or activity? 

In the Lewd Proposal/Solicitation to a Minor charge, the child must be under the age of 16. A minor that 16 or 17 year-old is not covered under that statute, it is 15 and under. That's where the age is relevant. 

Sexual communication with a minor by the use of technology, is the new flavor of the day for DA’s Offices across Oklahoma. The charge is very scary for my clients, and it is extremely difficult to defend. The charge is found in 21 OS section 1040.13A. This charge does not require the minor to be under 16 years of age.  So, if you communicate with a minor, even someone that's 16 and 17 years old, by use of technology - and that's any and all technology, there's not going to be any exception to it, from cell phones to computers; if electricity runs through it and it can communicate, it's covered under the statute. If you communicate with a minor about something that's sexual, not trying to get the person necessarily to go have sex, but just use sexual words with them, something of a sexual/prurient interest, even if it's just asking questions about their sexual likes and dislikes, that is enough to get you charged under this statute. Communicating with 16 and 17 year olds about something sexual will get you charged.

It's perfectly legal for a 19, 20, 21, and even a 51-year-old to have sexual relations, sex, oral sex, touching, everything, with a 16 or 17 year-old. Perfectly legal. However, if the adult communicates about the upcoming sexual act or communicate about the act afterwards, that's a crime in Oklahoma. Sexual communication with a minor is a felony and requires registration as a sex offender, and it's level three lifetime registration. The charge itself carries up to 10 years in prison. 

Lately, we have seen a number of cases where in the past we would have seen a lewd proposal to a minor charge come down from the DA’s office, they have instead filed the Sexual Communication with a Minor Charge. Most times this happens because the assigned ADA has determined they will have a problem with the “proposal” element of the crime of Lewd Molestation. Typically, the proposal element is one of the main elements that I would fight at the preliminary hearing or at jury trial. The issue of whether or not a proposal actually took place in the communication is fertile ground for me and that is losing ground a lot of times for the prosecution.

A better position, and a much easier position for them to occupy, is to go after my client with the sexual communication with a minor by use of a telecommunication device or tech device. That is much easier to prove, and it expands the range for which they can punish someone. The prosecution can now go after individuals that communicate with 16 and 17 year olds that are also engaged in perfectly legal sexual relatioships with those individuals. But simply because they communicated about their legal sexual relationship their conduct is now criminal and a registrable offense for life.

 

Section 1040.13a - Soliciting Sexual Conduct or Communication with Minor by use of Technology 

A. It is unlawful for any person to facilitate, encourage, offer or solicit sexual conduct with a minor, or other individual the person believes to be a minor, by use of any technology, or to engage in any communication for sexual or prurient interest with any minor, or other individual the person believes to be a minor, by use of any technology. For purposes of this subsection, "by use of any technology" means the use of any telephone or cell phone, computer disk (CD), digital video disk (DVD), recording or sound device, CD-ROM, VHS, computer, computer network or system, Internet or World Wide Web address including any blog site or personal web address, e-mail address, Internet Protocol address (IP), text messaging or paging device, any video, audio, photographic or camera device of any computer, computer network or system, cell phone, any other electrical, electronic, computer or mechanical device, or any other device capable of any transmission of any written or text message, audio or sound message, photographic, video, movie, digital or computer-generated image, or any other communication of any kind by use of an electronic device.

B. A person is guilty of violating the provisions of this section if the person knowingly transmits any prohibited communication by use of any technology defined herein, or knowingly prints, publishes or reproduces by use of any technology described herein any prohibited communication, or knowingly buys, sells, receives, exchanges, or disseminates any prohibited communication or any information, notice, statement, website, or advertisement for communication with a minor or access to any name, telephone number, cell phone number, e-mail address, Internet address, text message address, place of residence, physical characteristics or other descriptive or identifying information of a minor, or other individual the person believes to be a minor.

C. The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense pursuant to this section shall not constitute a defense to a prosecution under this section.

D. Any violation of the provisions of this section shall be a felony, punishable by a fine in an amount not to exceed Ten Thousand Dollars ($10,000.00), or by imprisonment in the custody of the Department of Corrections for a term of not more than ten (10) years, or by both such fine and imprisonment. For purposes of this section, each communication shall constitute a separate offense. Except for persons sentenced to life or life without parole, any person sentenced to imprisonment for two (2) years or more for a violation of this section shall be required to serve a term of post-imprisonment supervision pursuant to subparagraph f of paragraph 1 of subsection A of Section 991a of Title 22 of the Oklahoma Statutes under conditions determined by the Department of Corrections. The jury shall be advised that the mandatory post-imprisonment supervision shall be in addition to the actual imprisonment.

E. For purposes of any criminal prosecution pursuant to any violation of this section, the person violating the provisions of this section shall be deemed to be within the jurisdiction of this state by the fact of accessing any computer, cellular phone or other computer-related or satellite-operated device in this state, regardless of the actual jurisdiction where the violator resides.

OUJI-CR 4-134 - Solicitation of Minor

SOLICITATION OF MINOR – ELEMENTS

No person may be convicted of solicitation of a minor unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, willfully;

Secondsolicited/aided a minor child to;

[Third, in a lewd manner;

Fourth, expose his/her person/penis/vagina;

Fifth, in a place where there were present other persons to be offended or annoyed thereby.]

OR

[Thirdprocure/counsel/assist any person;

Fourth, to (expose himself/herself)/(make any exhibition of himself/herself) to (public view)/(the view of any number of persons);

Fifth, for the purpose of sexual stimulation of the viewer.]

OR

[Thirdwrite/compose/stereotype/print/photograph/design/copy/draw/ engrave/paint/mold/cut/prepare/publish/sell/distribute/(keep for sale)/exhibit;

Fourth, any (obscene material)/(child pornography).]

OR

[Thirdmade/prepared/cut/sold/gave/loaned/distributed/ (kept for sale)/exhibited;

Fourth, any type of (obscene material)/(child pornography).]

 

21 O.S. § 1123 - Lewd or Indecent Proposals or Acts to Child Under 16

It is a felony for any person to knowingly and intentionally:

Make any oral, written or electronically or computer-generated lewd or indecent proposal to any child under sixteen (16) years of age, or other individual the person believes to be a child under sixteen (16) years of age, for the child to have unlawful sexual relations or sexual intercourse with any person; or

Look upon, touch, maul, or feel the body or private parts of any child under sixteen (16) years of age in any lewd or lascivious manner by any acts against public decency and morality, as defined by law; or

Ask, invite, entice, or persuade any child under sixteen (16) years of age, or other individual the person believes to be a child under sixteen (16) years of age, to go alone with any person to a secluded, remote, or secret place, with the unlawful and willful intent and purpose then and there to commit any crime against public decency and morality, as defined by law, with the child; or

In any manner lewdly or lasciviously look upon, touch, maul, or feel the body or private parts of any child under sixteen (16) years of age in any indecent manner or in any manner relating to sexual matters or sexual interest; or

In a lewd and lascivious manner and for the purpose of sexual gratification:

a. urinate or defecate upon a child under sixteen (16) years of age, or force or require a child to defecate or urinate upon the body or private parts of another, or for the purpose of sexual gratification,

b. ejaculate upon or in the presence of a child,

c. cause, expose, force or require a child to look upon the body or private parts of another person,

d. force or require any child under sixteen (16) years of age or other individual the person believes to be a child under sixteen (16) years of age, to view any obscene materials, child pornography or materials deemed harmful to minors as such terms are defined by Sections 1024.1 and 1040.75 of this title,

e. cause, expose, force or require a child to look upon sexual acts performed in the presence of the child, or

f. force or require a child to touch or feel the body or private parts of the child or another person.

Any person convicted of any violation of this subsection shall be punished by imprisonment in the custody of the Department of Corrections for not less than three (3) years nor more than twenty (20) years, except when the child is under twelve (12) years of age at the time the offense is committed, and in such case the person shall, upon conviction, be punished by imprisonment in the custody of the Department of Corrections for not less than twenty-five (25) years. The provisions of this subsection shall not apply unless the accused is at least three (3) years older than the victim, except when accomplished by the use of force or fear. Except as provided in Section 51.1a of this title, any person convicted of a second or subsequent violation of this subsection shall be guilty of a felony punishable as provided in this subsection and shall not be eligible for probation, suspended or deferred sentence. Except as provided in Section 51.1a of this title, any person convicted of a third or subsequent violation of this subsection shall be guilty of a felony punishable by imprisonment in the custody of the Department of Corrections for a term of life or life without parole, in the discretion of the jury, or in case the jury fails or refuses to fix punishment then the same shall be pronounced by the court. Any person convicted of a violation of this subsection after having been twice convicted of a violation of subsection A of Section 1114 of this title, Section 888 of this title, sexual abuse of a child pursuant to Section 843.5of this title, or of any attempt to commit any of these offenses or any combination of convictions pursuant to these sections shall be punished by imprisonment in the custody of the Department of Corrections for a term of life or life without parole.

No person shall in any manner lewdly or lasciviously:

1. Look upon, touch, maul, or feel the body or private parts of any human corpse in any indecent manner relating to sexual matters or sexual interest; or

2. Urinate, defecate or ejaculate upon any human corpse.

Any person convicted of a violation of subsection B or C of this section shall be deemed guilty of a felony and shall be punished by imprisonment in the custody of the Department of Corrections for not more than ten (10) years.

The fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense pursuant to this section shall not constitute a defense to a prosecution under this section.

Except for persons sentenced to life or life without parole, any person sentenced to imprisonment for two (2) years or more for a violation of this section shall be required to serve a term of post-imprisonment supervision pursuant to subparagraph f of paragraph 1 of subsection A of Section 991a of Title 22 of the Oklahoma Statutes under conditions determined by the Department of Corrections. The jury shall be advised that the mandatory post-imprisonment supervision shall be in addition to the actual imprisonment.

Any parent or person responsible for the child's health, safety or welfare who violates subsection A, B or C of this section when the victim is at least sixteen (16) years of age but less than eighteen (18) years of age, upon conviction, shall be guilty of a felony and shall be punished by imprisonment in the custody of the Department of Corrections for not more than ten (10) years. For purposes of this section, "person responsible for a child's health, safety or welfare" shall include, but not be limited to:

a. a parent,

b. a legal guardian,

c. custodian,

d. a foster parent,

e. a person eighteen (18) years of age or older with whom the child's parent cohabitates,

f. any other adult residing in the home of the child,

g. an agent or employee of a public or private residential home, institution, facility or day treatment program as defined in Section 175.20 of Title 10 of the Oklahoma Statutes, or

h. an owner, operator or employee of a child care facility, as defined by Section 402 of Title 10 of the Oklahoma Statutes.

 

OUJI-CR 4-129

[LEWD ACTS (MOLESTATION) WITH]/

[INDECENT PROPOSALS TO]

A CHILD UNDER SIXTEEN – ELEMENTS

No person may be convicted of (lewd acts with)/(indecent proposals to) a child under sixteen unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

                     ▪     First, the defendant knowingly and intentionally;
Second, made a/an oral/written/(electronically/computer generated) lewd or indecent proposal;
Third, to a child/(person the defendant believed to be a child) under sixteen years of age;
Fourth, for the child to have unlawful sexual relations/intercourse with any person; and
Fifth, the defendant (was at least three years older than the child)/(was at least three years older than the purported child’s age)/(used force/fear).

                                                         ▪     OR

                     ▪     First, the defendant knowingly and intentially;
Second, (looked upon)/touched/mauled/felt;
Third, the body or private parts;
Fourth, of a child under sixteen years of age;
Fifth, in any lewd or lascivious manner; and
Sixth, the defendant (was at least three years older than the child)/(used force/fear).

                                                         ▪     OR

                     ▪     First, the defendant knowingly and intentionally;
Second, asked/invited/enticed/persuaded;
Third, a child/(person the defendant believed to be a child) under sixteen years of age;
Fourth, to go alone with any person;
Fifth, to a secluded/remote/secret place;
Sixth, with the unlawful and willful intent and purpose;
Seventh, to commit [Identify Crime Against Public Decency and Morality]; and
Eighth, the defendant (was at least three years older than the child)/(was at least three years older than the purported child’s age)/(used force/fear).

                                                         ▪     OR

                     ▪     First, the defendant knowingly and intentionally;
Second, in a lewd and lascivious manner;
Third, for the purpose of sexual gratification;
Fourth, [urinated/defecated upon]/[ejaculated upon/(in the presence of)];
Fifth, a child under sixteen years of age; and
Sixth, the defendant (was at least three years older than the child)/(used force/fear).

                                                         ▪     OR

                     ▪     First, the defendant knowingly and intentionally;
Second, in a lewd and lascivious manner;
Third, for the purpose of sexual gratification;
Fourth, caused/exposed/forced/required a child under sixteen years of age;
Fifth, to look upon [the body/(private parts) of another person]/[sexual acts performed in the presence of the child]; and
Sixth, the defendant (was at least three years older than the child)/(used force/fear).

                                                         ▪     OR

                     ▪     First, the defendant knowingly and intentionally;
Second, in a lewd and lascivious manner;
Third, for the purpose of sexual gratification;
Fourth, forced/required a child under sixteen years of age;
Fifth, to touch/feel the body/(private parts) of (the child)/(another person); and
Sixth, the defendant (was at least three years older than the child)/(used force/fear).

                                                         ▪     OR

                     ▪     First, the defendant knowingly and intentionally;
Second, in a lewd and lascivious manner;
Third, for the purpose of sexual gratification;
Fourth, forced/required a child/(person the defendant believed to be a child) under sixteen years of age;
Fifth, to view (obscene materials)/(child pornography)/(materials deemed harmful to minors); and
Sixth, the defendant (was at least three years older than the child)/(was at least three years older than the purported child’s age)/(used force/fear).

The words "lewd" and "lascivious" have the same meaning and signify conduct which is lustful and which evinces an eagerness for sexual indulgence.

The use of technology leaves a digital trail that law enforcement can trace back to you.  Discover an attorney tailored to your unique and personal needs. Call now to schedule a consultation (918) 384-0850.

 

 

Lee Berlin
Dedicated to defending clients accused of domestic violence and sex crimes in Tulsa and throughout Oklahoma.