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(In response to the following from an Internet message board: "I'm not sure if common sense will do it, but common sense dictates that if consent is all that is required beyond the age of 16 for this not to be considered a crime, then a person reasonable believed to have been able to provide said consent (who said they were 16 and consented) should not be able to prosecute for a crime. The accused had reasonable cause to assume the other person was capable of providing consent.") This argument is essentially an equal protection argument, which would likely work great in that situation. I'll put it down in two different ways, both logical and illustrative, to make sure it makes plenty of sense. If you can be prosecuted for setting up a meeting with the potential intent of engaging in a sexual encounter with what is REPRESENTED TO YOU as a minor, the upholding of these types of laws renders valid the idea that the representation of the other person's age rather than that person's real age can be used to determine if a prosecution under age of consent laws in general is actually valid. Under the idea of equal protection under the law, the government cannot use the represented age under which the potential defendant acted to prosecute them under an age of consent law, and then on the other end refuse to enforce the same type of situation involving represented age even though it would "let the defendant get away." Equal protection means, in part, that the government can't interpret a particular law in one fashion in one case and then interpret the same law in a conflicting manner in another case. This happens when a person is charged with a sexual offense for violating a sexual age of consent law when they go out to meet what was represented as (but actually never was) an underage potential sexual activity partner, and then another person is charged with a sexual offense for violating a sexual age of consent law with a person that represented themselves as being of a certainly legal age (such as the classic "she even had a fake ID" cases that are prosecuted anyway), even though that person's REAL age would render them illegal under statute as a sexual partner for that person. They can't have it both ways. If they want to prosecute based on actual legal age, then they can't arrest and convict based on represented age under the same general type of law. Enumerating a specific exception such as the string of "solicitation" laws does not change much, because it is still part of a class of laws governing age of sexual consent and is still subject to the requirement that all persons receive equal treatment under the law. Such a law can easily be rendered unconstitutional if it has been enumerated specifically to intentionally deny equal protection under that set of laws, and I am certain that it would be extremely easy for a lawyer to reason this in court. Any area that has prosecuted people in both of these ways is violating the Constitutional requirement of equal protection (equal treatment) under the law. It is selectively interpreting age of consent laws to prosecute someone, and the appeals courts exist to remove these kinds of legal loopholes from existence. Another situation where equal protection may exist is the North Carolina General Statutes, where the offense "Second Degree Sexual Exploitation of a Minor" is worded in such a fashion that it can be used to threaten someone charged with "Third Degree Sexual Exploitation of a Minor" into pleading guilty to the original charges instead of getting a lower plea deal, because escalation of charges from a Class I felony to Class F felony in NC, according to the NC sentencing guidelines I've read, will carry guaranteed prison time even for first-time offenses, whereas the original Class I felony carries no MANDATORY prison time for any first-time offenders charged with a non-aggravated offense under that category. Essentially, the prosecutor can pick either law for the equivalent of a third-degree offense, which means that a person can be arbitrarily charged with second-degree as the prosecution pleases--which would violate equal protection under the law. Questions? Comments? E-mail the Offender and let him know what you think! |
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