State v. Green
724 S.E.2d 664, 2012 WL 1111477, 397 S.C. 268 (2012)
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Rule of Law:
A statute criminalizing the knowing contact or communication with a minor for the purpose of engaging in sexual activity is not unconstitutionally overbroad or vague. The defense of legal impossibility is unavailable when a defendant attempts to commit a crime with a person they believe to be a minor, even if that person is actually a law enforcement officer.
Facts:
- On October 13, 2006, Benjamin P. Green, using the screen name 'blak slyder,' initiated an online chat with 'lilmandyl4sc' ('Mandy').
- Mandy's profile page featured a picture of a female, but the persona was created by Investigator Tommy Platt as part of a law enforcement task force.
- In the chat, Mandy stated she was 14 years old, and Green, who was actually 27, stated he was 21.
- The conversation became sexual, with Green asking Mandy to have sex with him and sending her two photographs of his penis.
- Green arranged to meet Mandy that evening at 7:30 p.m. on a secluded road.
- When Green arrived at the arranged location, he was met and arrested by law enforcement officers.
- A search of Green's vehicle revealed items including alcohol, condoms, male enhancement cream, and handwritten directions to the location.
- Upon his arrest, Green admitted to the officers that he was there to meet a 14-year-old girl.
Procedural Posture:
- Benjamin P. Green was indicted for criminal solicitation of a minor and attempted criminal sexual conduct (CSC) with a minor in the second-degree.
- In a pre-trial hearing, Green moved to dismiss the solicitation charge, arguing the statute was unconstitutional. The trial judge denied the motion.
- Green also moved to dismiss and for a directed verdict on the attempted CSC charge, arguing legal impossibility because the 'victim' was a fictitious persona. The trial judge denied these motions.
- Following a trial, a jury convicted Green on both charges in the court of first instance.
- Green appealed his convictions to the Court of Appeals, an intermediate appellate court.
- The Supreme Court of South Carolina, the state's highest court, certified the appeal from the Court of Appeals, removing it for its own consideration.
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Issue:
Is South Carolina's criminal solicitation of a minor statute, S.C. Code Ann. § 16-15-342, unconstitutionally overbroad and vague in violation of the First Amendment?
Opinions:
Majority - Justice Beatty
No, the statute is not unconstitutionally overbroad or vague. The statute is narrowly tailored to achieve the compelling state interest of preventing the sexual abuse of children and does not prohibit a substantial amount of protected speech. The statute is not vague because its terms provide fair notice to a person of common intelligence of what conduct is prohibited. The court reasoned that the statute's requirement that the defendant act 'knowingly' and with the specific intent to solicit a minor for sexual activity ensures it is narrowly tailored and does not criminalize inadvertent contact or protected speech. Offers to engage in illegal transactions are categorically excluded from First Amendment protection. Furthermore, the statute is not unconstitutionally vague because its elements—an adult knowingly contacting a person believed to be a minor with the intent to persuade them into sexual activity—are sufficiently precise. The court also rejected Green's legal impossibility defense for the attempted CSC charge, holding that the crime of attempt requires only the specific intent to commit the offense and an overt act, not the successful completion of the crime; therefore, it is irrelevant that the intended victim was a fictitious persona created by law enforcement.
Analysis:
This decision reinforces the constitutionality of state statutes designed to combat online child solicitation, confirming they can withstand First Amendment challenges based on overbreadth and vagueness. The ruling emphasizes the importance of a 'knowing' scienter requirement in narrowing the statute's scope to unprotected, criminal conduct rather than protected speech. By explicitly rejecting the legal impossibility defense in the context of police sting operations, the court strengthens the ability of law enforcement to prosecute individuals who intend to exploit minors, regardless of whether an actual minor is involved, thereby closing a potential loophole for defendants in 'cybermolester' cases.
