Age-Mistake Defense Allowed in MN Sex Cases

     ST. PAUL, Minn. (CN) — A 42-year-old man will not face another trial for soliciting sex from a 14-year-old child, after the Minnesota Court of Appeals overturned his conviction because the child claimed she was 16.
     Because of the legal structure of Mark Robert Moser’s challenge to the court’s procedure, Judge Lucinda E. Jesson wrote Monday that she is bound to simply throw out the conviction.
     In so doing, the appeals court overturned a portion of state law that forbids any offender accused of soliciting a child for sex over the Internet from raising the so-called “mistake of age” defense, provided the parties never meet in person.
     “There are weights and balances in the scales of justice,” Jesson wrote. “Sexual solicitation of children is a grave concern. But the concept that wrongdoing must be conscious in order to be criminal and subject an offender to years of imprisonment has long been a foundation of our justice system.”
     Moser was charged with solicitation of a child after talking with a 14-year-old on Facebook who lied about her age, according to Jesson’s Aug. 8 opinion. Moser repeatedly asked for pictures of the girl, and the pair discussed masturbation, the opinion states.
     Moser, who claims he thought she really was 16, sent one message that allegedly read “When can I meet you and f k that awesome pussy of yours?” The two never met in person, and the child eventually identified Moser to police.
     In Minnesota, the age of consent for sex is 16.
     A person charged under Minnesota Statutes section 609.352, subdivision 2, could not raise mistake of age as an affirmative defense, which Moser argued was unconstitutional as applied to him.
     The district court refused to allow the defense, stating that although the statute as applied did implicate Moser’s civil rights, it was “narrowly tailored to serve a compelling government interest.”
     Moser agreed to let the court decide the case based on the prosecution’s evidence, without a jury trial, which opened the door for his conviction to be overturned without facing a retrial, according to court records. The court stayed Moser’s sentence and placed him on probation for three years before he appealed.
     Jesson and the appeals court agreed with Moser that the statute as written imposes strict liability for a felony offense, which violates the right to due process and a fair trial.
     Criminal offenses, she wrote, require intent, which cannot be present in a case where the potential offender believes what they are doing is legal.
     The law as written could put an adult behind bars for engaging in sexual conversations over the Internet with a person they believed to be another adult, but who was in fact a child lying about their age.
     “If the Internet solicitation ever reached the point of an in-person meeting for sexual contact, the adult would presumably realize the individual was a child and end the encounter before any sexual activity occurred,” Jesson wrote. “Subjecting these adults to criminal liability does not serve the statute’s purpose of protecting children from sexual exploitation.”
     Jesson was joined in the opinion by Judges Carol Hooten and Jill Flaskamp Halbrooks.
     Minneapolis attorney Jeffrey Dean, who represented Moser, said the opinion brings the solicitation law into the 21st century.
     “The statute’s prohibition against allowing an accused to assert that the child misrepresented her age was enacted before Internet times and has not been changed to reflect the reality that people on the Internet often misrepresent themselves, and that determining a person’s true age over the Internet is almost impossible,” Moser said in an emailed statement. “A person should not be prosecuted because a child has managed to fool him into believing she or he is an adult.”
     A spokesman for the Hennepin County District Attorney’s Office said the state has not yet decided whether to appeal. “We are disappointed in the court’s decision,” spokesman Chuck Laszewski said in an email.

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