Ruling Allows Online Sex Solicitors to Argue ‘She Said She Was 16’

“What are you doing tonight?” Mark Moser, a 42-year-old Minnesota man, typed while chatting with a girl on Facebook a couple of years ago. “When can I meet you and fuck that awesome pussy of yours?” That question resulted in a felony conviction for soliciting sex with a child, because it turned out the girl was 14. Under state law, it did not matter that she had told Moser she was 16, which is the age of consent in Minnesota. But according to the Minnesota Court of Appeals, which overturned Moser’s conviction on Monday, preventing him from raising that defense violated his constitutional right to due process.

Statutory rape laws generally do not require proof that the defendant knew his sexual partner was too young, on the theory that if you meet someone for sex you should be able to figure out how old she is. As UCLA law professor Eugene Volokh notes, that assumption is dubious even when applied to in-person encounters. What if a girl “lied about her age, and perhaps even showed the defendant a credible-seeming fake ID”? But in Moser’s case, he never met the girl in person and never even saw any pictures of her (although she kept promising to send him some). So how was he supposed to know she was lying?

Since Minnesota’s law barred Moser from raising that question, the appeals court concluded, it imposed strict liability, meaning his intent was irrelevant:

Typically, criminal offenses require both a volitional act and a criminal intent, referred to as mens rea. A statute imposes strict liability when it dispenses with mens rea by failing to “require the defendant to know the facts that make his conduct illegal.” The state argues that the child-solicitation statute does not impose strict liability because it requires an “intent to engage in sexual conduct.” But it is the intent to engage in sexual conduct with a child that makes the conduct illegal, not the intent to engage in sexual conduct generally. The child-solicitation statute imposes strict liability because it does not require the state to prove that the defendant had knowledge of the child’s age (the fact that makes the conduct illegal), and it prohibits the defendant from raising mistake of age as a defense.

The court notes that “strict-liability crimes are generally disfavored,” although the Supreme Court has recognized some exceptions. One is “public welfare offenses” such as the sale of contaminated food or the possession of unregistered hand grenades. “Public welfare offenses generally involve items or conduct that by their very nature inform the defendant that his conduct may be subject to strict regulation,” the court says. “These offenses also usually carry only small penalties.” The court adds that “select crimes have also been excluded from the normal mens rea requirement where the circumstances make it reasonable to charge the defendant with knowledge of the facts that make the conduct illegal.” Those crimes include statutory rape and production of child pornography, where “a defendant can reasonably be required to ascertain the age of a person the defendant meets in person.”

The court distinguishes Moser’s case from these mens rea exceptions. Unlike most public welfare offenses, it says, Moser’s offense does not carry a light penalty: “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 ten years, and assigned one criminal-history point for his conviction.” And unlike statutory rape or production of child pornography, online solicitation of sex does not involve a physical meeting that would facilitate age verification. “The child-solicitation statute imposes an unreasonable duty on defendants to ascertain the relevant facts,” the court says. “Where solicitation occurs solely over the Internet…it is extremely difficult to determine the age of the person solicited with any certainty.”

The court concludes that “substantive due process” requires allowing a mistake-of-age defense in cases where “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.” As limited as the ruling is, it still represents a victory for the principle that people should not be convicted of crimes unless they knew the facts that made their actions illegal. The victory is especially striking given the seamy details of the case.