Sexual Solicitation of a Minor in Maryland: Understanding Criminal Law § 3-324
Sexual Solicitation of a Minor in Maryland: Understanding Criminal Law § 3-324
Sexual solicitation of a minor is governed by Maryland Code Annotated, Criminal Law § 3-324. The statute makes it a felony to knowingly solicit a minor, or a law enforcement officer posing as a minor, to engage in a prohibited sex act. The statute also prohibits soliciting the consent of a parent, guardian, or custodian of a minor, or a law enforcement officer posing as a parent, guardian, or custodian, for the purpose of engaging in specified unlawful sexual activity with the minor.
While it is certainly possible for an individual charged under Maryland Code Annotated, Criminal Law § 3-324 to have communications with an actual minor (during which the Defendant solicits improper interaction with the minor) a vast number of current prosecutions are arising from Internet sting operations in which law enforcement officers pose as minors. Police conduct these investigations on a variety of websites and online platforms. In nearly all of those cases, there is no actual minor involved. Frequently, an undercover officer will arrange for the targeted individual to meet at a particular place and time. When the individual arrives at the designated location, law enforcement officers make the arrest.
However, there are increasingly large numbers of these cases in which undercover officers pose as minors online and engage individuals in conversations involving requests for sexually explicit photographs, discussions of specific sexual acts, or offers to perform or teach sexual activity. Those electronic communications alone may lead investigators to seek an arrest warrant and initiate a prosecution, even without an in-person meeting having been actually pursued.
These Cases Can Be Defensible
Despite the extremely serious nature of a sexual solicitation charge, there are circumstances in which these cases are defensible and, in appropriate cases, can be successfully resolved without a trial.
Our office recently represented a client in precisely such a case.
An undercover law enforcement officer initially posed online as a prostitute. The purported prostitute later claimed to be "too busy" to meet our client but offered access to her supposed younger sister for sexual activity. Of course, the "younger sister" did not exist.
Our client ultimately appeared at a designated suburban location believing that he was going to meet a 14-year-old girl. He was arrested when he arrived.
At first glance, those facts might appear extraordinarily damaging. But criminal prosecutions are determined by the elements enacted by the legislature, not simply by how troubling the allegations may sound. That distinction became critical in this case.
What § 3-324 Actually Requires
Maryland Criminal Law § 3-324 expressly covers solicitation of a minor or a law enforcement officer posing as a minor. It also encompasses solicitation of the consent of a parent, guardian, or custodian of a minor, as well as a law enforcement officer posing in one of those capacities; the specific words used in the statute matter.
The statute does not simply say that criminal liability exists whenever a person communicates with anyone who claims that he or she can arrange sexual access to a minor. A sibling, relative, pimp, acquaintance, or other intermediary is not necessarily a parent, guardian, or custodian merely because that person claims the ability to provide access to a child.
That distinction can be decisive because the State must prove the statutory elements of the offense charged. A prosecution under § 3-324 cannot succeed merely because the alleged conduct appears to fall within the general subject matter that the statute is designed to address. The conduct proved must satisfy the offense the Maryland General Assembly actually enacted.
Choudry v. State
The Maryland appellate decision in Choudry v. State, 231 Md. App. 656 (2017), illustrates the importance of closely examining the exact language of the statute, and whom the defendant actually solicited.
In Choudry, the defendant contacted an adult intermediary while seeking a prepubescent child for sexual activity. The intermediary, being a good Samaritan, contacted law enforcement. A fictitious 12-year-old girl was then created for purposes of the investigation, including the use of a photograph of a young-looking girl, and arrangements ultimately were made for a meeting at a motel. When Mr. Choudry arrived, he was arrested.
The appellate court rejected the State's effort to sustain Mr. Choudry’s original sexual-solicitation conviction under § 3-324. The statutory problem was fundamental: the person Choudry had solicited was neither a minor nor a law enforcement officer posing as a minor. The case therefore demonstrated the limits imposed by the actual language chosen by the General Assembly.
The Legislature Responded to Choudry, But the Language Still Matters
The legislative history following Choudry is particularly instructive. Specifically, and as a result of the Choudry decision, in 2020, the Maryland General Assembly considered Senate Bill 231 specifically to address the limitations exposed by the Choudry decision. The Maryland Coalition Against Sexual Assault (MCASA) participated in the legislative process, and materials presented to the legislature advocated expanding the categories of adults through whom solicitation of a child could constitute an offense.
Maryland Senate Bill 231 ultimately became law and amended § 3-324. The amendment extended the statute beyond direct solicitation of a minor by expressly prohibiting solicitation of the consent of a parent, guardian, or custodian of a minor, including a law enforcement officer posing in one of those capacities. But the Maryland General Assembly did not write the statute to encompass every person who claims an ability to arrange access to a minor. The statutory language identifies particular relationships: parent, guardian, or custodian.
That distinction proved critical in our client's case, as our client had been communicating with a police officer who was posing as the "minor child’s" sister, and never identified herself as the fictional minor child’s guardian.
All Charges Dismissed
Our office conducted a detailed review of all of the Discovery in our client’s case. We reviewed not merely of the police reports and electronic communications between our client and the police officer posing as the "minor child’s" sister. We also reviewed the Choudry decision, and the legislative history surrounding the subsequent amendment to § 3-324.
We obtained and reviewed legislative materials concerning the proposed expansion of the statute and provided the prosecutor with the relevant authorities and legislative history. We argued that the person whom our client allegedly solicited, as portrayed by law enforcement, did not fall within the categories specified by the statute.
After reviewing the discovery and the legal materials we provided, the prosecutor agreed that the State could not successfully proceed under § 3-324.
All charges against our client were dismissed.
The result illustrates an important principle in Maryland criminal defense: the apparent facts of a case are only the beginning of the analysis. Particularly in Internet sting and sexual solicitation prosecutions, careful examination of the precise communications, the identity and claimed status of the person being communicated with, the statutory elements, controlling appellate decisions, and even the legislative history behind the statute can make the difference between a prosecution that appears overwhelming and one that cannot legally be sustained.
Criminal Intent Does Not Supply a Missing Statutory Element
One of the most important lessons from Choudry is that evidence of a defendant's intent, no matter how disturbing that intent may appear, does not relieve the State of its obligation to prove every element of Criminal Law § 3-324.
The distinction between intent and the identity or status of the person solicited is critical.
The statute requires the State to prove more than an intent to engage in unlawful sexual activity with a minor. Under the present statute, the solicitation must be directed to a person falling within one of the categories specifically identified by the General Assembly. Depending upon the subsection charged, that means a minor, a law enforcement officer posing as a minor, or the parent, guardian, or custodian of a minor, including a law enforcement officer posing in one of those capacities.
Reprehensible intent does not cure the failure to establish that separate statutory element.
Indeed, that principle was at the heart of Choudry. The Court did not suggest that Choudry's alleged intentions were innocent or ambiguous. To the contrary, the allegations concerning his intended conduct were extraordinarily disturbing. Nevertheless, the Court emphasized the statutory requirement concerning the status of the person solicited. The Court's analysis reflected the distinction between the defendant's subjective belief or intent and the objective statutory requirement concerning whom he actually solicited.
The legislative history following Choudry makes the distinction even more significant. When the Maryland General Assembly subsequently considered expanding § 3-324, the Maryland Coalition Against Sexual Assault specifically advocated broader language. MCASA proposed extending the statute to encompass all family members, household members, persons having care and custody of a child, and persons exercising authority over a child.
The General Assembly did not enact that broader formulation. Instead, when it amended § 3-324, it identified the specific categories of parent, guardian, or custodian.
That legislative choice matters. Courts cannot simply expand a criminal statute to encompass additional categories of people because doing so might further the statute's general protective purpose. Nor can the State substitute proof of a defendant's subjective intent for proof of the objective identity or status element that the legislature chose to require.
For that reason, determining exactly who was solicited, what status that person claimed to possess, and whether that status actually falls within § 3-324 can be every bit as important as determining what the defendant allegedly intended to do.
Every case is different, and a prior result does not guarantee a similar outcome in another case. But when a person is charged with sexual solicitation of a minor under Maryland Criminal Law § 3-324, the precise statutory elements should be examined carefully before any conclusions are drawn about the strength of the State's case.
