Question 1

What Is The Distinction Between State And Federal Internet Solicitation Charges In Michigan?

Accepted Answer

When looking at internet solicitation and computer-driven sex offenses, the first distinction that needs to be made is that there are two very specific and very different forums that you could find yourself in.

The first forum is state court in Michigan, called a circuit court. In state proceedings you are prosecuted by the Michigan Attorney General's Office or a county prosecutor's office.

The second forum is federal court – either the United states District Court for the Eastern District of Michigan, or the Western District of Michigan. In federal court, you are prosecuted by the United States Attorney's Office in either the Eastern District or the Western District of Michigan.

The two different forums have very distinct and important differences for practical and pragmatic purposes; the most important difference is the penalties.

Everything in federal cases is more significant and more substantive. At the federal level, law enforcement has significantly more resources, more agents, more funding, and a greater ability to investigate and prosecute these offenses. More importantly, the penalties are significantly higher.

On a state level, internet solicitation cases are typically prosecuted under one of three statutes.

Michigan’s Three State Internet Solicitation Statutes Explained

Child Sexually Abusive Activity: This involves, essentially, engaging a minor in any conversation about sex or sexual activity online. Any internet chat, texting, and chats in an app like Kick can all be prosecuted under the crime of child sexually abusive activity.

Another crime, which is an older offense, is “solicitation of a minor”. This crime is typically not used except as an alternative charge to a child sexually abusive activity charge.

Child Pornography: This offense is called Child Sexually Abusive Material (or CSAM) in state court. Child pornography is classed within Michigan as either “child sexually abusive material” or as “aggravated child sexually abusive material”. It is always illegal to possess media classed as child pornography, and this includes receiving (whether through an app or by text) an explicit image of an underage child that is either sexually provocative or engaged in sexual activity.

The difference between child sexually abusive material and aggravated child sexually abusive material is significant. For starters, the penalty for the latter is far higher. The difference between the two typically involves the quantity of images, the age of the child, or what type of images or videos are recovered. For example, is there any actual sexual activity or contact depicted, or is the child simply naked?

Using A Computer To Commit An Offense: This statute can be used in any type of crime, such as fraud or embezzlement, but it is frequently used as an additional charge in either a child sexually abusive activity charge or a child sexually abusive material charge.

This statute gives the judge the discretion to sentence the defendant consecutively, in other words, stack the sentences for the underlying offense of either child sexually abusive material or child sexually abusive activity on top of the use of the computer to commit that crime. Most often, sentences for crimes in state court run concurrently if you are convicted of more than one offense, meaning they run at the same time. The use of the computer to commit those crimes allows the judge the discretion to consecutively stack the sentences. The judge is not required to do this, however, and it is up to their discretion.

Federal Internet Statutes Explained

Federal statutes have a similar distinction.

Possession of Child Pornography: In the federal system, this is defined as the possession of any image of an underage child that is sexually provocative or the child is engaged in sexual activity. The guidelines for sentencing can be very high depending on the facts behind the allegation, but the statute itself is relatively less serious than any other federal sexual solicitation charge. There are no mandatory minimum sentences for possession of child pornography.

For that reason, “possession of child pornography” is not often charged by itself, but alongside the next (more serious) offense, Receipt of Child Pornography.

Receipt of Child Pornography: It doesn't make sense to many clients that “receipt” of Child Pornography is a separate offense from “possession”, because if you possess something, you have to have received it. However, receipt is a distinct criminal offense that allows the United States Attorney's Office to bring a separate charge against you. It is a significantly more serious offense than simple possession of child pornography.

While there is no mandatory minimum sentence for possession of child pornography, in contrast a conviction for “receipt of child pornography” carries a five-year mandatory minimum. This means, legally, the judge cannot give you a sentence below five years in the bureau of prisons (BOP), even if you are a first-time offender with significant mitigating factors in your favor.

Internet Solicitation of a Minor: This is engaging in any conversation about sex or sexual activity with a minor online. This crime has higher guidelines than either possession of child pornography or receipt of child pornography, and carries with it a 10-year mandatory minimum sentence.

Production of Child Pornography: Most people imagine “production” of pornography as somebody producing videos that are commercially sold or trafficked. But this statute is frequently used to prosecute individuals who engage with minors on the internet in an app, like Kick, by email, or by text. For example, an adult who asks a minor to send a nude photo of themselves. If that child then takes the nude photo and sends it to the adult, that adult has now engaged in the production of child pornography, because their request caused a piece of media that meets the legal definition of child pornography to be produced.

Guidelines for the production of child pornography are even higher than for the other three offenses, and if convicted, it carries a 15-year mandatory minimum sentence.

Again, with federal charges, the investigation will be more substantive and more thorough, and the discovery process will be broader and more complete. Resultingly, the case will also be more difficult to defend, making it critical for you to hire an experienced and attentive criminal defense lawyer if facing such charges.

Question 2

What Is Considered Internet Solicitation Under Michigan Criminal Law?

Accepted Answer

In state court, internet solicitation is most frequently prosecuted under the child sexually abusive activity statute. This means that under state law and in state courts in Michigan, “internet solicitation” is engaging in an online conversation about sex or sexual activity with a minor, that is, with someone who is under 18 years of age.

This legal statute can sometimes conflict with the legal “age of consent”. In the state of Michigan, the age of consent is 16. This means that a 16-year-old can legally consent to have sex under Michigan law, and you, as an adult, can legally have sex with a consenting 16-year-old in Michigan, However, under the child sexually abusive activity statute, a minor is defined as anyone under 18 years old. So under this statute you cannot communicate with a minor online about sex until they reach 18.

Question 3

Can My Online Messages Or Chats Be Taken Out Of Context In A Solicitation Case?

Accepted Answer

This can potentially happen; however, there is considerable nuance involved. The bottom line is that investigators in both state and federal cases tend to be very well-trained in exactly what is needed to charge someone with online solicitation.

For example, it’s common for teenagers to use slang or double entendres. When communicating with a minor, slang terms and abbreviations can easily be misunderstood. For example, the slang term “6-7” can mean “so-so” or maybe, or it can be used as a meaningless or even absurd interjection. But it can also be used as shorthand for attempted, failed, or one-sided oral sex, paying on the term “69.” So, a reference to 6 7 may be confused or taken out of context. For this reason, officers posing as minors on line will have strict guidelines as to what does and does not constitute internet solicitation.

Investigating officers posing as minors will also take a potentially suggestive statement and continue to ask questions, such as “What do you mean by that?” or “Is that what we’re going to do when we meet up?” to strengthen a case against a suspect, and to try and clarify that sexual solicitation was intended.

Agents working at a federal level are even better trained and instructed on how to keep a suspect engaged in a sexually explicit conversation, gently nudged them along towards more explicit conversation, and strengthening a case against a suspect. Therefore, a person charged with internet solicitation must have their attorney review all messages and data to ensure that nothing that is texted or said is taken out of context.

Question 4

What Happens If The Person I Was Communicating With Turns Out To Be An Undercover Law Enforcement Officer?

Accepted Answer

The Michigan state Supreme Court, the Federal Court of Appeals, and the United States Supreme Court have all ruled that the fact that you are talking to an undercover law enforcement officer is not a valid defense for a charge of internet solicitation of a minor.

The statute simply requires that you have the intent to engage a child in sexually abusive activity through online communication. Because you thought you were speaking to a minor, the fact that the person you were communicating with turned out to be an adult is not a valid defense to that charge.

Question 5

What Counts As “Knowingly Soliciting” A Minor Under Michigan Sex Crime Statutes?

Accepted Answer

Under Michigan law, “knowingly soliciting a minor” occurs if you are communicating with a minor, or someone you believe to be a minor, with the intent to engage in sexually provocative communications. So the statute makes it a crime to discuss sex or sexual activity online with someone you either know to be a minor, or believe to be under 18 years of age.

Question 6

How Can A Defense Attorney Challenge Digital Evidence In An Internet Solicitation Case?

Accepted Answer

There are three basic actions that an attorney has to explore when defending against a state “child sexually abusive activity” charge or a federal “internet solicitation of a minor” charge. First, the attorney must go to the law enforcement office and review the actual photographs, images, or videos that were allegedly sent or received.

Next, your attorney will engage the services of a digital forensic computer expert who will conduct a thorough review of the texts and images involved. This is important because it could impact the nature of the charges you face. For example, if a defendant were to have requested an explicit photo from a 15-year-old, and she takes and sends you an explicit photo, that defendant can be charged with the production of child pornography.

But if an expert checks the digital footprint of that image and determines it was created months prior to the request, that defendant can possibly be charged with possessing child pornography, receiving child pornography, and even soliciting a minor. But the defendant can not be charged with “producing child pornography”, as the image had already been produced before it was requested. Such a nuance can have significant impacts on the mandatory minimum sentence a defendant faces.

Finally, a defense lawyer must evaluate the communication itself. Is there any confusion? Was anything taken out of context? Can it be argued that the texts involved acting out a fantasy with someone the defendant believed to be an adult rather than an attempt at soliciting a minor?

All of these factors will be important in building a defense.

Question 7

What Are The Long-Term Personal Consequences Of An Internet Solicitation Conviction?

Accepted Answer

There are some serious personal and social consequences of an internet solicitation conviction, both on a state and federal level. The first is being placed on the sex offender registry. The sex offender registry does not distinguish between what type of sex offense you are convicted of; solicitation of a minor online will put you on the registry just as fast as any other sex-based crime.

It can not be overemphasized how overwhelming and difficult it is to be placed on that registry. It will control so many aspects of a person’s life, from where you live to whether you can go to your child’s school to meet with their teacher. It can even prevent you from having certain types of jobs.

Anyone who wants to go online can search for your name, or search the zip code you live in can find not only information about your conviction, but also your photograph. The long-term personal impact of being convicted of an internet solicitation case in either state or federal court is enormous. It is a scarlet letter that follows you in nearly every aspect of your life and changes your life for decades.

It should be taken incredibly seriously and should be defended against at all costs.

Question 8

Still Have Questions? Ready To Get Started?

Accepted Answer

For more information on charges of internet solicitation of a minor in Michigan, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (248) 419-6133 today.

You’ve Been Accused of Internet Solicitation, Now What? A Step-by-Step Guide for Michigan Residents