Arizona law allows people to be convicted of soliciting sex with a child even if there never was any child to begin with, the state Court of Appeals ruled Tuesday.
In a split decision, the majority said there is nothing illegal about the law which makes it a crime to promote the commission of a felony by encouraging, requesting or soliciting another to engage in illegal conduct. In this case, the illegal conduct was Dale A. Wright soliciting a postal inspector to allow him to engage in sexual activities with her two children.
But the children, represented as younger than 13, did not exist.
Wright was arrested, charged, convicted and imprisoned. Now out, and with the state seeking to have his lifetime probation revoked, his attorneys are arguing that the whole conviction is based on a flaw.
Appellate Judge Patricia Orozco, writing for the majority, said that’s not the way she reads the law.
“Solicitation does not require an agreement by the solicited child to engage in such conduct,’’ she wrote. “The crime is complete when the solicitor, acting with the requite intent, makes the command or request.’’
But appellate Judge Diane Johnsen said there’s something missing here: an actual victim.
“Under the language of the Arizona statute defining solicitation, one cannot be convicted of soliciting another to commit molestation of a child in the absence of an actual child,’’ she wrote.
Tuesday’s split ruling suggests the case is likely headed to the Arizona Supreme Court.
The case goes back to Wright’s conviction in 1992 after pleading guilty to two counts of soliciting to have sex with a minor. After being sentenced to 10 years in prison, he was placed on lifetime probation as the offenses he was trying to commit are designated by law as “dangerous crimes against children.’’
When the state sought to have his probation revoked last year — the ruling does not explain why — Wright asked the court to reconsider the underlying question of whether the solicitation offenses, to which he pleaded guilty, fall into the “dangerous crimes against children’’ category. If they do not, then he is not subject to lifetime probation and he cannot be sent back to prison.
That required the court to determine the legal nature of the crime.
Orozco said the fact there were no children is irrelevant.
“Legal incapability of committing the offense that is the object of the solicitation is not a defense to solicitation,’’ she wrote.
Johnsen, in her dissent, said she agrees that a “valid conviction’’ of soliciting to commit child molestation may itself be a dangerous crime against children.
“But that is not what we have here,’’ she wrote.
The problem, the judge said, is that the actual crime of child molestation requires sexual conduct “with an actual child.’’ She said even prosecutors conceded that point.
“The ‘children’ that Wright spoke about with the postal inspector were not real, but made-up,’’ Johnsen said. That means the crime they were discussing — child molestation — did not exist “because no actual child was involved.’’
“Arizona’s solicitation statute requires the defendant to solicit conduct that would actually constitute a crime,’’ Johnsen explained.
“It does not allow a conviction for soliciting conduct that the defendant incorrectly believes would constitute a crime,’’ she continued. “To say simply that a solicitation is complete upon the solicitor’s request is to disregard the other elements of the crime of solicitation, which require solicitation of conduct that actually would constitute another crime.’’