Elimination of Mistake As To Age Defense in Prosecution for Internet-Only Child Solicitation Prosecution Violates Substantive Due Process

State v. Moser, Minn.Ct.App., 8/8/2016.  Mr. Moser solicited a child for sex over the internet.  He never met the child in person and the child told him that she was sixteen when in fact she was fourteen.  Although Mr. Moser repeatedly asked for pictures of the child the child apparently never sent any photos to him.  

The state charged Mr. Moser with violating the child-solicitation statute, Minn.Stat. 609.352.  He was convicted.  He challenged that conviction, saying that as applied to solicitation that occurs only over the internet, involving no face to face contact, and where the child represents that he or she is sixteen or older the inability to raise a mistake of age defense violated substantive due process.  The court of appeals agrees and reverses Mr. Moser's conviction.

The child solicitation statute prohibits the solicitation of a "child or someone the person reasonably believes is a child" to engage in sexual conduct with intent to engage in sexual conduct." Minn.Stat. 609.352, subds. 2, 4.  The statute explicitly eliminates mistake as to age as a defense.  Minn.Stat. 609.352, subd. 3(a).  The criminal sexual contact statutes similarly eliminate mistake as to age as a defense when the victim is under certain stated ages, although is some instances a defendant's "reasonable belief" that the victim  is a certain age or older is an affirmative defense.

The court acknowledges that previous SCOTUS and Minnesota cases hold that there is no due process violation to charge the child pornography producer, the in-person child solicitor, or the child rapist with knowledge of the victim's age.  United States v. X-Citement Video, Inc., 513 U.S. 64 (1994); State v. Morse, 281 Minn. 378,  161 N.W.2d 699 (1968). A defendant in such an in-person encounter "can reasonably be required to ascertain the age of a person the defendant meets in person."  For Mr. Moser's internet-only encounter the court concludes that it was unreasonable to charge him with that obligation.

In summary, as applied to Moser and in other cases where the defendant has no in person contact with the child and the child represents to the defendant that he or she is 16 or older, Minnesota Statutes section 609.352, subdivisions 2 and 3(a), violate due process by imposing strict liability and eliminating a mistake-of-age defense. The child-solicitation statute infringes on Moser’s fundamental rights to liberty, to a fair trial, and to present a complete defense. It cannot survive strict scrutiny. Although the statute imposes strict liability, it has none of the characteristics that usually accompany strict-liability offenses. The statute does not create a public welfare offense, and it is not reasonable to require a defendant in Moser’s position, engaging in solicitation solely over the Internet without any face-to-face contact, to verify the actual age of the person solicited. The statute does not survive strict scrutiny because, given its harsh penalties, it is not narrowly tailored to serve the compelling government interest of protecting children from sexual exploitation. Because the child told Moser she was 16 years old, Moser may have reasonably believed  that she was not a child as defined by the statute. We therefore conclude that the district court erred by denying Moser the opportunity to raise a mistake-of-age affirmative defense.