Grits for Breakfast pointed me to a very interesting new blog “Just Rants and Raves” written by a guy being supervised on a Dallas County sex offender probation. I hope to see more “probation blogs” pop up, because I think it will be instructive for everyone in the system. I’m sure that our local Austin criminal defense bar would find them fascinating. (If it’s not obvious, I’ll point out that not many defense lawyers have actually been on probation.)

The probation blogger was convicted of online solicitation of a minor, which is not listed under Chapter 21 Sexual Offenses, but instead Chapter 33 Computer Crimes of the Texas Penal Code. (Read his first post for his description of the offense, and the ensuing court case.)

One of the comments on Grits’ post asks:

So, there’s a law that says you can’t meet an underage person over the internet? Meeting someone underage is equivalent to statutory rape? A sex offense has been committed when 2 parties meet? Fine line to entrapment, no?

I realize we have similar laws to prevent homicides: as in you can get nailed for attempted murder by actively developing a plot to kill someone…but this seems different. You have to be looking into someone’s head to apply the law.

Well, I’d encourage a reading of the statute itself, because more than just meeting someone underage is required. But, yes, it also involves looking at the defendant’s intent because it requires the element of “intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person”. Usually the state’s attempt to prove this part involves the saved conversations that have been recorded over email, instant messaging, or chat rooms.

As for entrapment? As I’ve blogged about previously, entrapment requires that the inducement by the state was of such a nature that a normally law abiding citizen would have succumbed to it, and committed the offense. I doubt a lot of jurors will publicly agree that they would have gone out and tried to meet the underage girl for these purposes (even the ones that might have).

§ 33.01. Definitions

In this chapter:

(1) "Access" means to approach, instruct, communicate with, store data in, retrieve or intercept data from, alter data or computer software in, or otherwise make use of any resource of a computer, computer network, computer program, or computer system.

(2) "Aggregate amount" means the amount of:

(A) any direct or indirect loss incurred by a victim, including the value of money, property, or service stolen or rendered unrecoverable by the offense; or

(B) any expenditure required by the victim to verify that a computer, computer network, computer program, or computer system was not altered, acquired, damaged, deleted, or disrupted by the offense.

(3) "Communications common carrier" means a person who owns or operates a telephone system in this state that includes equipment or facilities for the conveyance, transmission, or reception of communications and who receives compensation from persons who use that system.

(4) "Computer" means an electronic, magnetic, optical, electrochemical, or other high-speed data processing device that performs logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and includes all input, output, processing, storage, or communication facilities that are connected or related to the device.

(5) "Computer network" means the interconnection of two or more computers or computer systems by satellite, microwave, line, or other communication medium with the capability to transmit information among the computers.

(6) "Computer program" means an ordered set of data representing coded instructions or statements that when executed by a computer cause the computer to process data or perform specific functions.

(7) "Computer services" means the product of the use of a computer, the information stored in the computer, or the personnel supporting the computer, including computer time, data processing, and storage functions.

(8) "Computer system" means any combination of a computer or computer network with the documentation, computer software, or physical facilities supporting the computer or computer network.

(9) "Computer software" means a set of computer programs, procedures, and associated documentation related to the operation of a computer, computer system, or computer network.

(10) "Computer virus" means an unwanted computer program or other set of instructions inserted into a computer’s memory, operating system, or program that is specifically constructed with the ability to replicate itself or to affect the other programs or files in the computer by attaching a copy of the unwanted program or other set of instructions to one or more computer programs or files.

(11) "Data" means a representation of information, knowledge, facts, concepts, or instructions that is being prepared or has been prepared in a formalized manner and is intended to be stored or processed, is being stored or processed, or has been stored or processed in a computer. Data may be embodied in any form, including but not limited to computer printouts, magnetic storage media, laser storage media, and punchcards, or may be stored internally in the memory of the computer.

(12) "Effective consent" includes consent by a person legally authorized to act for the owner. Consent is not effective if:

(A) induced by deception, as defined by Section 31.01, or induced by coercion;

(B) given by a person the actor knows is not legally authorized to act for the owner;

(C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable property dispositions;

(D) given solely to detect the commission of an offense; or

(E) used for a purpose other than that for which the consent was given.

(13) "Electric utility" has the meaning assigned by Section 31.002, Utilities Code.

(14) "Harm" includes partial or total alteration, damage, or erasure of stored data, interruption of computer services, introduction of a computer virus, or any other loss, disadvantage, or injury that might reasonably be suffered as a result of the actor’s conduct.

(15) "Owner" means a person who:

(A) has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor;

(B) has the right to restrict access to the property; or

(C) is the licensee of data or computer software.

(16) "Property" means:

(A) tangible or intangible personal property including a computer, computer system, computer network, computer software, or data; or

(B) the use of a computer, computer system, computer network, computer software, or data.

§ 33.02. Breach of Computer Security

(a) A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.

(b) An offense under this section is a Class B misdemeanor unless in committing the offense the actor knowingly obtains a benefit, defrauds or harms another, or alters, damages, or deletes property, in which event the offense is:

(1) a Class A misdemeanor if the aggregate amount involved is less than $1,500;

(2) a state jail felony if:

(A) the aggregate amount involved is $1,500 or more but less than $20,000; or

(B) the aggregate amount involved is less than $1,500 and the defendant has been previously convicted two or more times of an offense under this chapter;

(3) a felony of the third degree if the aggregate amount involved is $20,000 or more but less than $100,000;

(4) a felony of the second degree if the aggregate amount involved is $100,000 or more but less than $200,000; or

(5) a felony of the first degree if the aggregate amount involved is $200,000 or more.

(c) When benefits are obtained, a victim is defrauded or harmed, or property is altered, damaged, or deleted in violation of this section, whether or not in a single incident, the conduct may be considered as one offense and the value of the benefits obtained and of the losses incurred because of the fraud, harm, or alteration, damage, or deletion of property may be aggregated in determining the grade of the offense.

(d) A person who his subject to prosecution under this section and any other section of this code may be prosecuted under either or both sections.

§ 33.021. Online Solicitation of a Minor

(a) In this section:

(1) "Minor" means:

(A) an individual who represents himself or herself to be younger than 17 years of age; or

(B) an individual whom the actor believes to be younger than 17 years of age.

(2) "Sexual contact," "sexual intercourse," and "deviate sexual intercourse" have the meanings assigned by Section 21.01.

(3) "Sexually explicit" means any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct, as defined by Section 43.25.

(b) A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet or by electronic mail or a commercial online service, intentionally:

(1) communicates in a sexually explicit manner with a minor; or

(2) distributes sexually explicit material to a minor.

(c) A person commits an offense if the person, over the Internet or by electronic mail or a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.

(d) It is not a defense to prosecution under Subsection (c) that:

(1) the meeting did not occur;

(2) the actor did not intend for the meeting to occur; or

(3) the actor was engaged in a fantasy at the time of commission of the offense.

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:

(1) the actor was married to the minor; or

(2) the actor was not more than three years older than the minor and the minor consented to the conduct.

(f) An offense under Subsection (b) is a state jail felony, and an offense under Subsection (c) is a felony of the third degree, except that an offense under Subsection (b) or (c) is a felony of the second degree if the minor is younger than 14 years of age or is an individual whom the actor believes to be younger than 14 years of age.

(g) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section, the other law, or both.

§ 33.03.  Defenses

It is an affirmative defense to prosecution under Section 33.02 that the actor was an officer, employee, or agent of a communications common carrier or electric utility and committed the proscribed act or acts in the course of employment while engaged in an activity that is a necessary incident to the rendition of service or to the protection of the rights or property of the communications common carrier or electric utility.

§ 33.05. Tampering with Direct Recording Electronic Voting Machine

(a) In this section:

(1) "Direct recording electronic voting machine" has the meaning assigned by Section 121.003, Election Code.

(2) "Measure" has the meaning assigned by Section 1.005, Election Code.

(b) A person commits an offense if the person knowingly accesses a computer, computer network, computer program, computer software, or computer system that is a part of a voting system that uses direct recording electronic voting machines and by means of that access:

(1) prevents a person from lawfully casting a vote;

(2) changes a lawfully cast vote;

(3) prevents a lawfully cast vote from being counted; or

(4) causes a vote that was not lawfully cast to be counted.

(c) An offense under this section does not require that the votes as affected by the person’s actions described by Subsection (b) actually be the votes used in the official determination of the outcome of the election.

(d) An offense under this section is a felony of the first degree.

(e) Notwithstanding Section 15.01(d), an offense under Section 15.01(a) is a felony of the third degree if the offense the actor intends to commit is an offense under this section.