Virginia prosecutions for soliciting minors for sexual activity- Fairfax criminal lawyer warns about asserting a fantasy defense

Virginia prosecutions for soliciting minors for sexual activity often involve sting operations with a police officer masquerading as a minor. As a Fairfax criminal lawyer, I would hope the image of a bearded, balding (let’s add full of offensive body odor and ugly, if that is needed to drive the point home all the more) law enforcement officer claiming to be a 13 year old girl might be enough to deter any possible defendant from engaging in online sexual talk with such a person, so that they would not need my criminal defense in the first place. However, despite decades of such sting operations, alleged and actual pedophiles keep getting caught in such simply executed police charades that threaten years in prison. Beyond that, anyone sexually interested in minors needs to know that it is not a crime to simply fantasize about such ideas, but is a crime to view child pornography and to seek out minors for sexual activity. If all of that is not enough to convince people to avoid such activity, then consider that this week the Virginia Supreme Court narrowed the ability to successfully assert a defense that the accused was simply engaging in fantasy roleplay, never in a million years truly believed that the other person claiming to be thirteen years old was a minor, and never intended to engage in any in-person nor Zoom-type liaison with the person.

Virginia prosecutions for soliciting minors for sexual activity are permitted when the “child” is actually a full-grown adult

The Virginia appellate caselaw has long okayed obtaining convictions on Virginia prosecutions for soliciting minors for sexual activity where the purported child is actually a full grown adult. The following key language from the commonwealth’s anti-solicitation statute itself shows that the focus is on the defendant-believed age of the purported child, and not their actual age: “It is unlawful for any person 18 years of age or older to use a communications system, including but not limited to computers or computer networks or bulletin boards, or any other electronic means, for the purposes of soliciting, with lascivious intent, any person he knows or has reason to believe is a child younger than 15 years of age to knowingly and intentionally: 1. Expose his sexual or genital parts to any child to whom he is not legally married or propose that any such child expose his sexual or genital parts to such person; 2. Propose that any such child feel or fondle his own sexual or genital parts or the sexual or genital parts of such person or propose that such person feel or fondle the sexual or genital parts of any such child; 3. Propose to such child the performance of an act of sexual intercourse, anal intercourse, cunnilingus, fellatio, or anilingus or any act constituting an offense under § 18.2-361; or 4. Entice, allure, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any purposes set forth in the preceding subdivisions.” Virginia Code § 18.2-374.3(C).

The Virginia Supreme Court has given reasons for trial judges to often bar expert testimony that the soliciting minors defendant did not believe the “child” was a minor

Virginia prosecutions for soliciting a minor for sex who is not an actual child have now become easier for prosecutors to pursue, now that the Virginia Supreme Court this week affirmed the conviction of a man despite the trial court’s barring the testimony of a defense psychological expert to support that the defendant did not actually believe that the “child” was an actual minor. Kilpatrick v. Commonwealth of Virginia, Record No. 210530 (Va., Aug. 34, 2022). The trial judge barred Kilpatrick from presenting the trial testimony of a psychological professional “1) to show support for his claim that he did not believe that ‘Jenny’ was a minor and 2) to show that he lacked the ‘motive’ to solicit a minor.: Kilpatrick. The trial judge ruled that such testimony would have gone to the ultimate issue that was for the jury to decide. Kilpatrick says that even assuming such barring of the expert was error, that it was harmless error, because of the overwhelming evidence against Kilpatrick. The dissent in Kilpatrick cogently warns “not so fast” in that such testimony did not go to the ultimate issue, and the evidence was no so overwhelming as to be harmless error with such countervailing evidence to support that “Jenny” was an adult masquerading as an adult with such claims by Jenny that she was one day going hunting and that she was looking for a job. However, the court majority rules, so Kilpatrick has failed in his effort to overturn his conviction and thirty-five year prison sentence, with not even a day of that sentence suspended.

How do I defend myself against a Virginia solicitation of a minor prosecution?

The best way to defend against Virginia prosecutions for soliciting minors is to avoid such behavior in the first place. If you do get caught in such activity, assert your Fifth Amendment Constitutional right to remain silent with the police, and certainly avoid the law enforcement subterfuge that Kilpatrick fell for, which was to write a damning apology letter to “Jenny’s” parents. Also, timely obtain a qualified Virginia criminal lawyer. For instance, I have successfully defended against prosecutions for alleged solicitation of minors for sexual activity and for child pornography.

Fairfax criminal lawyer Jonathan Katz defends you to the hilt against Virginia DUI, felony and misdemeanor prosecutions. Call 703-383-1100 for your free in-person confidential consultation with Jon Katz about your court-pending case.