Tuesday, August 16, 2011
C.A. Rejects Free-Speech Challenge to Sexual Predator Law
By KENNETH OFGANG, Staff Writer
A state law making it a felony to contact or communicate with a minor with the intent of committing a lewd act does not violate free speech rights, the Third District Court of Appeal ruled yesterday.
“While there is a limit on free speech to the extent that [Penal Code] section 288.3 criminalizes otherwise protected communications with a minor, the statute has been written in a way that does not unconstitutionally restrict protected speech.” Justice Ronald Robie wrote for the court.
“Before the statute is violated, the defendant must know or reasonably should have known the other person was a minor, have the specific intent to commit an enumerated sex offense, and then contact or communicate with that minor or attempt to do so,” Robie explained. Because the statute only punishes speech that is made with criminal intent, the justice said, it is constitutional.
The court affirmed the convictions of Randal Scott Keister on eight counts of violating Sec. 288.3(a), four counts of committing a lewd act on a child, and one count of battery. A Sacramento Superior Court jury convicted him of all 13 counts after he was charged with having abused his girlfriend’s teenage daughter between 2006 and 2008.
Sec. 288.3(a) provides that “[e]very person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit an offense specified in” any of 14 enumerated sections is guilty of a crime, punishable in the same manner as an attempt to commit the intended offense.
In Keister’s case, the charges were based on handwritten notes and letters to the girl, who was 12 years old when the behavior started. They included descriptions of sexual fantasies, complaints about the defendant’s sex life with the girl’s mother, requests for sex, explicit language, and a sexually graphic picture.
He also gave her a vibrator.
Keister and the girl were interviewed by police after the girl discussed the situation with her best friend, whose mother called authorities. Keister, according to the evidence at trial, admitted that he was “wrong” and wrote a letter of apology at an officer’s suggestion, describing specific acts of molestation.
In challenging the constitutionality of the statute, part of the Jessica’s Law initiative enacted as Proposition 83, the defense argued that the law “effectively prohibits potential child molesters from communicating with children” and that a person with a sexual attraction to children “violates the statute anytime he communicates with a child because he has the intent to molest children if given the opportunity.”
Robie, however, cited People v. Hsu (2000) 82 Cal.App.4th 976, which upheld a similar statute, Sec. 288.2, which prohibits distribution or exhibition of “harmful matter” to a minor. The court held there that the law was valid because its speech restrictions were imposed only “on the conduct of those who would use otherwise protected speech to seduce minors.”
The panel also rejected the contention that the statute violates equal protection by punishing “a thought crime” involving intent to molest children, whereas a mere intent to commit other crimes, such as theft or assault, is not similarly punished.
No Thought Crime
Robie explained that the statute punishes not thoughts, but acts of communication coupled with criminal intent. A person who has contacted a minor with intent to commit a sex crime is not similarly situated to someone who is “thinking about committing a theft or assault,” the justice wrote.
Also rejected was a claim that the inclusion of Sec. 288.3 in Proposition 83, which also provides for indefinite civil commitment of sexually violent predators and imposes restrictions on where registered sex offenders can live, violates the state constitutional requirement that an initiative embrace only one subject.
All of the initiative’s provisions, Robie said, are reasonably related to a common purpose of protecting the public from sex offenders.
The case is People v. Keister, 11 S.O.S. 4509.
Copyright 2011, Metropolitan News Company