89 who solicited kids online can be cleared

They spoke in sexually explicit terms with children by Facebook, text message and email. As is common nationwide, these adults were convicted under a state law that made such salacious conversations a felony. Parents and Internet safety advocates have touted such laws as a way to punish what is plainly dangerous behavior.

But now, advocates say, Texas is the first place where people convicted of this type of crime are getting removed from the sex offender registry or even set free.

Two years ago, the Texas Criminal Court of Appeals struck down part of the statute criminalizing online solicitation of a minor as unconstitutional, saying the restrictions violated the right to free speech because they were overly broad. As a result, anyone convicted under the law could seek to have a conviction wiped clean.

As a result, district attorneys in Harris, Montgomery and Fort Bend counties have notified 89 people that they are eligible for a reversal in their cases. Since then, 42 people convicted in those counties have sought to have their felonies set aside, according to a Houston Chronicle review of court records. At least three people had their cases expunged, which involves erasing all public records of a case.

For most, clearing their record

means they won’t have to report to a probation officer or appear on the state’s sex offender registry. In as many as five cases, it could mean getting out of prison.

Some advocates worry that these former offenders will solicit minors again, especially with no public records to document their past explicit conversations.

“It’s a real problem,” said Grier Weeks, director of the nonprofit National Association to PROTECT Children. “By the time this is fixed, a lot of predators may have escaped interdiction.”

Meanwhile, police say the ruling has forced them to change the way they investigate potential child sex offenders, making arrests only when conversations escalate into more serious offenses, such as meeting a minor in person or actually committing sexual abuse.

Changes to law

Police and advocates have been waiting for the Legislature to make changes to the law so future convictions could pass constitutional muster. They received good news this week, when the House on Monday unanimously passed a Senate-approved bill to fix the law. The measure, which has been sent to Gov. Greg Abbott, would apply to offenses committed after Sept. 1.

The legislation “provides prosecutors and law enforcement with the tools they need to protect innocent children from illicit solicitation by online predators,” state Sen. Joan Huffman, R-Houston, said in a statement Tuesday.

At issue was a section of state law that prohibited someone 17 or older from seeking to “arouse or gratify the sexual desire of any person” by communicating sexually explicit material — or distributing such material — with a minor.

While it was found to be overly broad, a provision that makes it illegal to ask a minor to meet for sex still stands, if a meeting takes place. Because of the ruling, adults can legally talk in sexually explicit terms with minors on Facebook, Twitter, Yahoo!, Kik, Snapchat and other messaging services. Sharing or requesting nude photos and videos can still bring a misdemeanor charge.

Court records from the dozens of cases where there were reversed convictions sometimes included excerpts from the chats with children or undercover officers. Some told kids or those they thought were kids they would rub aloe vera over their naked bodies, or requested pictures of their genitals.

“Any normal person, I think, would say it is totally wrong for an adult to talk to a 9-year-old in this language,” said Houston police Sgt. Richard Hahn, commander of the regional Internet Crimes Against Children Task Force.

Hahn noted that he has had to tell some parents who discovered inappropriate messages that he couldn’t investigate those responsible unless they suspected physical abuse. “Many cases we can’t take (action) because there is no recourse under the law,” he said.

Advocates and police say it’s common for sexual predators to build trust with children online before coercing them, sometimes through blackmail, to send them explicit photos or to meet in person for sex. Children who have been abused are at a greater risk for being drawn into sex trafficking.

“Children will be victimized and at an alarming rate,” said Ruthanne Mefford, CEO of Child Advocates of Fort Bend. “The world of online solicitation is exploding. These grooming conversations are traumatic for children. They’re scared of what’s going to happen next, but they may not be able to disengage or are scared to tell an adult.”

Undercover sting

Court records show that none of those seeking to clear their records have been charged with new crimes in the months since their convictions were reversed. Most of the cases resulted from an undercover sting conducted by police, and only a fraction of those charged had prior convictions.

Those who had not sought to have their cases reversed were more likely to have been convicted of related crimes, such as sexual abuse of a minor or possession of child pornography. Some of those affected are already serving time in prison or on probation for other cases.

Prosecutors might be able to charge the former offenders with different crimes if the statute of limitations has not passed. Only four reversed cases presented clear possibilities to do this by reviving charges dropped as part of a plea deal. New charges also could be hindered because evidence from several cases was destroyed under state record retention policies.

David Finkelhor, director of the Crimes Against Children Research Center at the University of New Hampshire, played down the likelihood that those convicted — and exonerated because of the court ruling — will offend again or sexually abuse children once their cases are reversed.

“Our research suggests that the biggest deterrent to re-offending is getting caught,” he said. “There are some people who are compulsive and repetitive offenders, but on the whole they tend to be so out of control that they’ve done something worse and are easier to catch.”

Only want photos

He noted that some of those who begin salacious conversations with minors only are interested in photos or the conversations themselves and are unlikely to seek to have actual sexual relations with children.

Focusing on the few reversed convictions could distract from more serious crimes, said Bob Sanborn, president of Children at Risk, a Houston nonprofit advocacy group. He said explicit online conversations are just a sliver of the sexual exploitation experienced by children in Houston, a city ranked among the worst hot spots for sex trafficking in the country.

For instance, 45 people appeared before Harris County judges on child pornography charges last month alone. That’s compared with the 42 online solicitation cases over eight years for which individuals have sought reversal so far in the counties reviewed.

Sanborn said Texas needs to focus on rescuing more real child victims by increasing funding, passing new legislation and prosecuting more cases.

“For us to spend time focusing on intent is not as important as going after the people who actually commit crimes against children,” he said. “I understand it’s a pretty slippery slope, but unfortunately I think there is a lot of bold talk online that doesn’t lead to anything.”