Under current Minnesota law, an adult who texts a child a naughty scene from Game of Thrones or a racy Beyoncé music video could face felony criminal charges.
But that statute, created to prevent predators from luring children into a sexual encounters online, was ruled unconstitutional by the state Court of Appeals Monday in an opinion that called it too broad with the potential to chill speech protected by the First Amendment.
The 18-page ruling has a huge impact on the law because it's now permissible to engage in speech that might have the potential to sexually arouse someone, even a child, said University of Minnesota media ethics professor Jane Kirtley. But the statutory definitions are not limited to children, and could include communications related to or describing the sexual conduct of any person, including adults.
"The Legislature tries to criminalize conduct before it's criminal," said John Westrick, who represented the defendant in this case. "I understand their desire to protect the children, I really do. But prosecutors need to show intent to commit a crime. It doesn't fly in this case."
That case involved Krista Muccio, a 43-year-old Dakota County middle school lunch lady and a 15-year-old student. In November, 2014, the child's father reported to law enforcement that he found inappropriate images on his son's iPad. The photographs depicted female genitals and naked pictures of women.
The pictures were sent from Muccio's Instagram account via direct message. A search warrant revealed that she and the student had sexual explicit conversations and exchanged sexually explicit photographs.
Muccio was charged with one count of felony communication with a minor describing sexual conduct and another count of possessing pornographic work involving a minor. In a pretrial motion, a Dakota County District Court judge dismissed the first count because it was unconstitutional.
The statute states that a person 18 years of age or older who uses the internet or electronic device to intentionally arouse the sexual desire of a child or any person is guilty of a felony. The statute, created in 2007, was intended to criminalize what is referred to as "grooming"— the process where sexual predators engage in explicit conversations with a child and expose them to pornographic material in an attempt to acclimate the child toward a sexual encounter. A child is defined as a person 15-years-old or younger. The "or any person" language was, in part, why the Appeals Court found the law troubling in that it risked banning protected speech that adults have the right to receive and to address to one another. Specifically, the required intent occurs if the adult wishes to "arouse the sexual desire of any person," not just children, Kirtley said.
