“She Said She Was 16!”



The age of consent for sexual contact in Washington State is 16, unless the adult is more than 5 years older and in a position of authority (e.g. a teacher or employer).  However, there is a lesser known crime in Washington called Communication with a Minor for Immoral Purposes (“CMIP”), which involves sex talk with a “minor.”  A 2013 statutory amendment makes electronic communications a felony (e.g. email, text, Instagram).  A minor is defined in Washington as someone less than 18.

So strangely, an adult could have sex with a 16 year old but can’t communicate about it, particularly via text or email.    The State of Minnesota grappled with this predicament recently, in Minnesota v. Moser.

Unlike Washington state, ‘child’ is specifically defined by Minnesota law.  Minnesota defined child as “15 years of age or younger”, recognizing its age of consent, which is 16.

What if the minor claims to be over 16?  Do I have a defense?

In Moser, Police received a report that an adult male used Facebook in an attempt to solicit a 14-year-old girl for sex.  The Facebook exchange between Moser and the 14 year old lasted 6 days.  They never met in person.  The girl told Moser she was 16, although she was actually 14.  There ensued some very colorful sex chat between the two.

Moser was charged with child solicitation.  He tried to use an affirmative defense of “mistake of age.”  There was no dispute the girl said she was 16.  The trial court would not recognize the defense.

The Minnesota Supreme Court overturned Moser’s conviction, being quite concerned that the solicitation statute contained no ‘guilty intent’ component (neither does Washington’s).  The Minnesota Court found when the person solicited represents that he or she is 16 or older, solicitation occurs over the Internet, and there is no in-person contact between the defendant and the person solicited, not allowing a defense of mistake of age is unconstitutional.

This case demonstrates the conflicting statues of “age of consent” and “communicating with a minor”.  The Minnesota Court recognized a 16 year old could communicate with Mr. Moser without violating a criminal statute.  Until the WA legislature modifies the CMIP statute, sexual communication with someone who is 16 or 17 is not worth the risk.