We have time-stamped captured images of both suspect and victim from their FaceTime communication. Is this enough to establish that the defendant exposed knowing a child was "present"? We are also filing online solicitation and multiple counts of possession of child pornography.
Great question, and I did some research. Nothing on point, but my answer is that presence is satisfied. I don't think there is a spatial element to this, as opposed to simple indecent exposure, because this offense requires intentional, as opposed to reckless, exposure. Thus, if this were a face time encounter between two consenting adults, and a child happened to be in the room without your perv's knowledge, I don't think you would have an offense. But, reading between the lines on your question, I think your perv had more than enough knowledge and intent, so the fact that it was electronic shouldn't matter, in my opinion.
The conduct being punished can't be excused because it was done through modern technology. If so, pervs would get away with this all the time by having a kid sit in his bedroom watching the perv on television, even if the perv was in the same house. or next door, or down the block. I guess I interpret "present" as meaning "being able to see". If a guy does his magic and he knows kids can see - then I think that the element is met, no matter where that child may be.This message has been edited. Last edited by: MDK27,
Oh, where's "Molly" when you're in the mood for a good "First Ammendment/Gestapo Prosecutors" response?
if you have images that would constitute CP, why not go with Sexual Performance of a Child, 43.25? Not only do you not have to prove physical presence, you get a higher degree offense than possession of CP.
Not sure if it's exactly on point, but the court in Smith v. State, 200 S.W.3d 644 (Tex. App. - Houston [1st Dist.] 2001, pet. ref'd.) (a Public Lewdness case) noted that "'present' is defined as 'being in view or at hand.' WEBSTER'S NEW COLLEGIATE DICTIONARY 903 (1981). We hold that, under section 21.07, 'being in view' of the person engaging in the proscribed conduct is all that is required.'"
Seems reasonable that another party to a video chat is "in view" of the actor.
Thanks! I went with a variety of charges including sexual performance, online solicitation, poss. child porn, and indec/exp. Had another identified victim who didn't want to prosecute(from another county).
Yes, I miss "Molly" too -- oh, the naivety of youth! Does anyone remember RTC from a few years ago?
Do you think Shannon would entertain a petition to "FREE MOLLY"? So entertaining. And yes, I remember those heady days as a first year law student. I knew nothing then, didn't think I would ever know it, and, 35 years later (since I started law school), nothing has changed.
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