S.C. high court rejects challenge to minor-solicitation law

Thursday, April 12, 2012

The South Carolina Supreme Court has upheld the constitutionality of a state law prohibiting criminal solicitation of a minor, finding the law neither overbroad nor vague.

Benjamin P. Green challenged his conviction after he solicited a meeting in October 2006 in a Yahoo chat room with someone he thought was a 14-year-old girl. Green, then 27, sent the person two pictures of his penis and arranged to meet “the girl” on a secluded road in Beech Island, S.C.

The supposed minor actually was an investigator with the Aiken County Sheriff’s Office working undercover as part of the Internet Crimes Against Children Task Force. When Green arrived at the location, several agents arrested him. A jury convicted him of criminal solicitation of a minor and attempted criminal sexual conduct with a minor.  He appealed his convictions to the state Court of Appeals, which then certified the case to the South Carolina Supreme Court.

In his appeal, Green contended that the law against criminal solicitation of a minor was too broad and too vague. The law makes it unlawful for a person 18 or older “knowingly” to contact or communicate with a person believed to be a minor “with the intent of persuading, inducing, enticing or coercing the person to engage or participate in a sexual activity” defined by state law.

Green argued the law was too broad because it would criminalize lawful speech. However, the South Carolina high court found in its April 4 decision in State v. Green that the law did not do so. Rejecting Green’s argument, the judges noted that the U.S. Supreme Court had ruled in United States v. Williams (2008) that offers to engage in illegal transactions, such as buying or selling child pornography, are excluded from First Amendment protection.

The state high court also reasoned that the law was “narrowly drafted to prohibit criminal conduct rather than protected speech.” Furthermore, the South Carolina Supreme Court pointed out that the statute did not criminalize protected speech — in part because it required that the communications with a minor or person believed to be a minor be done “knowingly.”

The state high court also determined that the law was not vague, in that it was “sufficiently precise to provide fair notice to those to whom the statute applies.” Green argued that the law was vague because it did not define all of its terms — words such as “contacts,” “communicates,” “inducing” or “enticing.”

“Although each of these terms is not defined, we believe a person of common intelligence would not have to guess at what conduct is prohibited by the statute,” the state high court wrote.

The court also rejected Green’s other arguments on appeal, including that it was impossible for him to have violated the law because the person he communicated with was actually a male investigator and no actual minor was involved.

The state Legislature “clearly intended to eliminate the defense of impossibility as to the charge of criminal solicitation of a minor if a law enforcement officer impersonated a minor,” the opinion said.

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