Solicitation And Communication Involving Sexual Conduct Statute Found Unconstitutional

The Minnesota Court of Appeals held that felony communication involving sexual conduct with a minor was unconstitutional. Minnesota statute 609.352 governs solicitation of children to engage in sexual conduct and communication of sexually explicit materials to children. Subd. 2a. holds that:

A person 18 years of age or older who uses the Internet, a computer, computer program, computer network, computer system, an electronic communications system, or a telecommunications, wire, or radio communications system, or other electronic device capable of electronic data storage or transmission to commit any of the following acts, with the intent to arouse the sexual desire of any person, is guilty of a felony and may be sentenced as provided in subdivision 4:

(1) soliciting a child or someone the person reasonably believes is a child to engage in sexual conduct;

(2) engaging in communication with a child or someone the person reasonably believes is a child, relating to or describing sexual conduct; or

(3) distributing any material, language, or communication, including a photographic or video image, that relates to or describes sexual conduct to a child or someone the person reasonably believes is a child.

The court of appeals held that subd. 2 (2) was unconstitutional because it was too broad with the potential to ban speech protected by the First Amendment. The case surrounded Krista Muccio who was a lunch lady and 15-year-old student. The child’s father found inappropriate images with naked pictures of women. They exchanged sexual conversations and explicit photographs. She was charged with communication with a minor describing sexual conduct and child pornography. The defense attorney filed a motion to dismiss because the law statute was unconstitutional. The broad language of the statute, which holds that if the adult wishes to “arouse the sexual desire of any person” is guilty of a felony. It does not limit the terminology of “any person” to just “children” when the definition of a child is any person 15 years of younger. The Dakota county attorneys office plans to appeal the decision. Stay tuned to the Keller Criminal Defense Attorneys blog to hear whether the Minnesota Supreme Court will hear the case.

This is a very important decision that may affect many solicitation cases involving minors in Minnesota. If you have been charged with solicitation of children to engage in sexual conduct and communication of sexually explicit materials to children, this ruling may affect your case. Contact a criminal defense attorney t see if the new court of appeals decision applies to your solicitation case and if there are grounds to file a motion to dismiss. If you are facing solicitation charges, you will need a skilled defense attorney on your side. If you have been charged with solicitation contact Keller Criminal Defense Attorneys for a free consultation at 952-913-1421 and visit the firm’s website at

He has won jury trial cases in misdemeanor and felony cases and in DWI’s and non-DWI’s. He is a member of the Minnesota Society for Criminal Justice, which only allows the top 50 criminal defense attorneys in the state as members. He is a frequent speaker at CLE’s and is often asked for advice by other defense attorneys across Minnesota.

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