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Internet Sex Crimes: Criminal Defense Overview of Texas Online Sexual Offenses

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Internet sex crime charges can be filed in Texas based upon either state or federal law.  These cyber-crime sexual offenses frequently involve serious felony charges, where those convicted of online sexual offenses face lengthy incarcerations as well as fines and mandatory registration as a sex offender.

Considering how heinous even a rumor that someone is being investigated for an internet sex crime can be to both personal and professional reputations, as well as to relationships with family members, friends, and business associates, it is extremely important from a criminal defense perspective to take any suggestion or insinuation of an internet sex crime violation very, very seriously.

For more on the detrimental impact of rumors or gossip of sex crime investigations, read:

What is an Internet Sex Crime?

Lawmakers have established certain acts involving sexual behavior to be outlawed for centuries: for instance, as far back as 1780 B.C. the Code of Hammurabi defined the rape of a virgin to be a crime. Read, Bishop, Kyla. “A reflection on the history of sexual assault laws in the United States.” The Arkansas Journal of Social Change and Public Service (2018): 1-4.

Traditional legislation regarding sex crimes has faced an entirely new set of considerations, however, with the advent of the World Wide Web.  The ability to communicate, to observe, to study, to participate, to sell, or merely to search online may well mean that there is no physical contact whatsoever between individuals.  They may not even be in the same city, state, or country.  The events at issue may not take place contemporaneously, but instead in gaps of days, weeks, months, or even years.

Accordingly, the law must address due process protections and privacy freedoms established in the U.S. Constitution as they apply when internet sexual behavior is involved.  Criminal defense arguments must consider the reality that internet sex crimes have to be distinguished from historical sexual offenses – and this demarcation must be kept in mind from the earliest law enforcement entry into the accused’s life through arrest, plea bargaining, and trial.

Internet sex crimes, in essence, involve any type of behavior defined by either state or federal law as a criminal offense involving sexual behavior or conduct that occurs over the web.  Online sexual behavior becomes a crime in Texas when either state or federal law define the action or activity to be illegal. 

These criminalized behaviors can involve the following:

  • Child pornography – possession
  • Child pornography – distribution
  • Sex trafficking – promoting, encouraging, assisting, participating
  • Prostitution – promoting, encouraging, assisting, participating
  • Arranging to meet with a minor for sex (making a date online)
  • Sexting with a minor.

Texas Internet Sex Crimes

The Texas Legislature has passed many different laws that create internet sex crimes to be investigated by state law enforcement authorities with incarceration upon conviction in a state facility.  These include:

Texas Penal Code §21.16

It is illegal in the State of Texas to post, send, or distribute specific types of images on the internet.  Under Texas Penal Code §21.16, this includes photographs or images of a sexual nature, including specifically someone’s body (in whole or in part) without their expressed consent to upload them and share them on the internet.  If these images involve the body of a minor, then these cases can involve very serious felony charges, especially since minors are not able to give legal consent.

Texas Penal Code §43.26

It is a crime in the State of Texas to knowingly or intentionally possess, or knowingly or intentionally access with intent to view, an image (visual material) that shows a minor engaging in sexual conduct.  A “minor” under this statute is defined as anyone under the age of 18 years old at the time that the image was made.

Texas Penal Code §33.021

Online solicitation of a minor is a crime under Texas law.  The criminal act involves communicating with a minor online in a sexually explicit manner.  Here, the statute defines a minor as: (A) an individual who is younger than 17 years of age; or (B) an individual whom the actor believes to be younger than 17 years of age.

Federal Internet Sex Crimes

Congress has passed federal statutes that likewise create internet sex crimes which are investigated by various federal agencies with incarceration upon conviction in a federal prison.  These include:

Sexual Exploitation of Minors (various crimes listed in Title 18 of the United States Code)

Under federal law, specifically Title 18 of the United States Code, each crime involving the sexual exploitation of a minor may have its own definition of “child” or “minor” that applies to its scope.  As a general rule, minors are defined in federal criminal law as anyone under the age of 18 years old but in some instances, Congress has defined the minor to be anyone under the age of 16 years old. See, e.g., 18 U.S.C. § 2256(1). 

Child Pornography

It is a federal crime to possess or to distribute materials that depict the sexual exploitation of minors, and this includes digital images that have been uploaded and/or stored online.

For more, read:

Penalties Upon Conviction for Internet Sex Crimes in Texas

After being arrested and charged for an internet sex crime, the accused will proceed through either the state or federal criminal justice system, with sentencing and punishment upon conviction being defined by the appropriate state or federal laws.

Federal Internet Sex Crimes

In federal cases, internet sex crimes may come with mandatory minimum sentences pursuant to federal law.   Sentencing can involve a minimum of 15 – 30 years served in a federal prison upon conviction for federal sex crime charges involving a minor.  Serious cases can result in life imprisonment.

For more, read:

Texas Internet Sex Crimes

Texas law involves a minimum sentence of two years imprisonment in a Texas facility upon conviction of an internet sex crime as a 2nd Degree Felony.  Serious offenses may escalate that sentence to that of a 1st Degree Felony, which carries a maximum sentence of 99 years behind bars.

See, for example, Texas Penal Code §43.041 which increases punishment for anyone convicted of having an online web site that advertises or facilitates prostitution involving at least five (5) people from a 2nd Degree Felony to a First-Degree Felony when that individual has a prior conviction or if their conduct involved at least two (2) people under the age of 18 years old.

For more, read New Texas Sex Crimes:  The Online Prostitution Laws Effective September 1, 2019.

Registration as a Sex Offender: State and Federal

Both state and federal internet sex crime convictions as a general rule will include mandatory registration as a sex offender with the appropriate state or federal database (i.e., the National Sex Offender Registration and Notification System).

For more, read:

Possible Criminal Defenses Against Texas Online Sex Crime Charges

The mere investigation into possible internet sex crime charges by either federal agents or Texas law enforcement warrants the immediate involvement of an experienced sex crimes criminal defense lawyer to advocate on behalf of the person being suspected of illegal online activities.  However, once an arrest has been made and charges are filed against the accused, an aggressive and thorough criminal defense is essential.

These are serious, life-altering circumstances.  In Texas, most prosecutors – state or federal — will vigorously pursue the matter, being particularly zealous if children or minors are involved.  Moreover, federal prosecutions of internet sex crimes may be the result of extensive joint task force efforts (“stings”) by coordinated law enforcement agencies.  By the time an arrest is made, the prosecution’s files may be fat with documentation and witness statements to support the government’s case.

Internet Sex Crime Charges Alone Bring Need for Formal and Informal Defense Strategies

There are unique challenges to be faced in the criminal defense of internet sex crimes charges.  For those facing internet sex crime charges in either state or federal court, it is important to remember that being investigated and/or arrested is not the same as being found guilty of wrongdoing in a court of law.  Charges are not convictions.

However, given the social stigma that attaches to sex crime arrests and online sex crime charges, the reality is that harm is likely in these matters – and that permanent damage can be suffered not only by the accused, but his family, friends, loved ones, along with business colleagues and associates simply by the rumors and gossip that pervade internet sex crime allegations.

A thorough criminal defense in online sex crimes case will consider not only the official charges within the criminal justice system, but also the reality that there will also be an informal defense to be undertaken regarding the social implications of an internet sex crimes charge.

Legal Defenses of Internet Sex Crime Charges Depend Upon the Particular Case

Legally, several defenses may be available to the accused depending upon the particular situation and the evidence produced by the prosecution as well as facts discovered through the defense’s efforts. These include:

  1. Arguing innocent of the charges, which can include a challenge to an element of the state’s case, such as having the necessary intent or knowledge as required by the criminal statute;
  2. Arguing consent of the alleged victim to the actions;
  3. Refuting the ability of the prosecution to meet their legal burden of proof of beyond a reasonable doubt, which can include evidence admissibility challenges and constitutional arguments of unlawful search or seizure;
  4. Establishing entrapment (coercion); and
  5. Establishing legal incapacity at the time of the event (psychological incapacity or insanity).

Use of Computer Forensic Experts in Internet Sex Crime Defense

Given the technological aspects of any internet sex crimes case, the criminal defense lawyer may require the assistance of an expert in computer forensics to help in the development of the defense case as well as to testify at trial on computer-related and online-specific issues.

Computer forensic analysis may be vital to the defense in collecting data and information from computer hard drives and networks, as well as storage devices.  Forensic analysis works to help build the defense’s case.

Forensic experts can also be invaluable in analyzing the complicated factual information collected by the government in support of the charges made against the accused.  The review of the prosecution’s file by forensic experts may result in the defense’s ability to challenge the authenticity or admissibility of part or all of the government’s case.

For more, read:

Internet Sex Crimes Criminal Defense in Texas

In the State of Texas, charges of internet sex crimes and illegal online sexual conduct are some of the most serious types of allegations that anyone can face.  Those accused of internet sex crimes under either state or federal law deserve representation by an experienced and knowledgeable sex crime defense lawyer.

Even when facing the most serious of charges, it is possible for the ultimate result to be much less dire than the accused and their loved ones may have foresaw.  While each case is unique and no guarantees on results can ever be made, consider the following:

  • As an example of the end result being less dire than originally foresaw, read our article entitled, Fort Worth Federal Judge John McBryde Child Porn Downward Departure Sentence, where Mr. Lowe’s client was investigated by the Fort Worth Police Department (“FWPD”) Crimes Against Children Unit, in an investigation of a peer-to-peer file sharing network called eDonkey;  eDonkey required its users to download file sharing software called Shareaza, which involved child pornography images. Mr. Lowe’s client was arrested and charged on federal felony internet sex crimes.  At sentencing, Mr. Lowe made a compelling argument for downward departure, even though USPO made an argument for a departure above the max 121 recommended in the USSG range for level 30, criminal history category I.    Judge McBryde agreed with Mr. Lowe’s arguments and sentenced Mr. Lowe’s client to 68 months, which was almost half (44%) below the max 121 USSG range sentence.  In addition, 68 months is well below the minimum recommended sentence, 97 months.
  • Another example can be found in our article entitled Probation in a Federal Child Porn Case: Case Study by Defense Attorney Michael Lowe, where an Arlington family hired Mr. Lowe to represent their son, a high school senior, after he was charged with federal internet sex crimes after the Department of Homeland Security under Homeland Security Investigations executed a federal search warrant for computers and hard drives at the Arlington family residence.  At sentencing, Judge Means heard the evidence Mr. Lowe had prepared for sentencing, and the judge knew Mr. Lowe’s client was being given too good of a deal and he didn’t want to accept the deal.  Mr. Lowe persisted, and this included producing a psychological expert’s evaluation of his client as well as evidence that the boy had begun treatment before he was detained by the federal authorities.   At the conclusion of the evidence and argument, Judge Means was so persuaded by the defense’s evidence, he elected to sentence the boy to less than the deal’s agreed-upon 4 years.

If you suspect that you, or your spouse or child or loved one, is being investigated for internet sex crimes or is a target of a joint task force online sex crimes sting, then it is important to learn about your legal rights and remedies as soon as possible.

Consultation with a sex crimes defense lawyer is not a red flag of guilt: it is a wise step to take for anyone willing to fight for their constitutionally guaranteed rights of privacy, due process, as well as fighting to protect their personal and professional reputations in the face of the social stigma and taboos that arise with internet sex crimes investigations.

For more, read:

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his warning of “Top 5 Mistakes in Defending a Texas Criminal Case.”


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