Soliciting a Child for Unlawful Sex in Florida
The crime of Soliciting a Child for Unlawful Sex (officially called Soliciting a Child for Unlawful Sexual Conduct by Using a Computer) is intended to protect children against the trolling, by adults, of internet chat rooms for minors.
Under Florida Statute 847.0135(3), the crime of Soliciting a Child for Unlawful Sex is defined as the use of an online service, internet service, or electronic device to seduce, solicit, lure, or entice a minor, or person believed to be a minor, to engage in unlawful sexual conduct.
In 2007 the Florida legislature added the term “electronic device capable of data storage or transmission” to the list of mediums that are illegal to use when soliciting a child. While this clearly encompasses modern Smart Phones, it is unclear if the term encompasses generic cellular phones that lack sophisticated functions.
Undercover Law Enforcement Techniques
Notably, it is not a defense to Soliciting a Child for Unlawful Sex if the person posing as a child was actually an undercover law enforcement agent.
Common undercover techniques occur when a law enforcement agent either: (1) poses as a child, or the parent of a child; or (2) law enforcement engages in a bait-and-switch conversation.
Police Posing as a Child or Parent of a Child
This tactic was popularized by the Dateline NBC series “To Catch a Predator” with Chris Hansen and involves police routinely posing as underage children (or the parents of underage children) on popular internet sites such as AOL, Facebook, Yahoo, and Craigslist. [FN1]
Importantly, the fact that an undercover operative or law enforcement officer was involved in the detection and investigation of the crime of Soliciting a Child for Unlawful Sexual Conduct Using a Computer cannot be raised as a defense in a subsequent prosecution for the offense. 
The “Bait and Switch” Technique
Initially, the undercover law enforcement agent proposes engaging in legal sexual behavior; the most common scenario being a single mother looking to meet an adult male interested in sexual activity.
However, the undercover agent quickly redirects the conversation from lawful sexual relations with the “mother” to unlawful sexual relations with the mother's minor child (almost always 14 years of age).
Penalties for Soliciting a Child for Unlawful Sex
The crime of Soliciting a Child for Unlawful Sex is a Second Degree Felony in Florida and punishable by up to fifteen (15) years in prison, fifteen (15) years of probation, and a $10,000 fine.
Soliciting a Child for Unlawful Sex is assigned a Level 7 offense severity ranking under Florida's Criminal Punishment Code. Absent grounds for a downward departure sentence, a judge is required to sentence a person convicted of Soliciting a Child for Unlawful Sex to a minimum sentence of 21 months in prison, but may also impose a sentence up to the statutory maximum of 15 years in prison.
Multiple Charges for Single Episode
Each separate use of a computer, online service, Internet service, or electronic device can be charged as a separate criminal offense.
This means that if you use a computer on four separate occasions to discuss engaging in unlawful sex with the person believed to be a minor, you can be charged with four separate counts of Soliciting a Child for Unlawful Sexual Conduct Using a Computer.
Defenses to Soliciting a Child for Unlawful Sex
Entrapment occurs when an agent of the government induces a person to commit a crime that the person was not otherwise predisposed to commit.
In most prosecutions where the “Bait & Switch“ technique is used to charge a defendant with the crime of Soliciting a Child for Unlawful Sexual Conduct Using a Computer, the inducement by the government agent will not be in question; it is the predisposition of the defendant that will be the issue.
In determining whether the defendant was predisposed to commit the crime of Soliciting a Child for Unlawful Sexual Conduct Using a Computer, we would need to closely examine the following issues to see if an Entrapment Defense might be viable:
- Who initiated the discussions of unlawful sexual activity;
- Persistence of law enforcement to commit the unlawful sexual act;
- Documented instances of reluctance by the defendant to commit the unlawful sexual act; and
- Defendant's expressed sexual interests.
Lack of Seduction, Solicitation, Luring, or Enticement
A fundamental element of the crime of Soliciting a Child for Unlawful Sexual Conduct Using a Computer is that the defendant either seduce, solicit, lure, or entice the child (or person believed to be a child) to engage in an unlawful sexual act.
However, each word has a very specific legal meaning and if the defendant did not actually engage in acts that would constitute seduction, soliciting, luring, or enticement; then the person cannot be convicted of the crime.
This defense is most viable in “Bait & Switch“ prosecutions where the undercover law enforcement agent directs the entire conversation and the defendant merely acquiesces to the proposals.
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