PHOENIX — The state’s high court has agreed to decide whether people can be convicted of soliciting sex with a child even if there never was any actual child to begin with.
Without comment the justices this week agreed to review last year’s split decision by the state Court of Appeals upholding the conviction of Dale A. Wright. No date has been set for a hearing.
Wright was charged with soliciting a postal inspector to allow him to engage in sexual activities with her two children.
As it turned out, the children, represented as younger than 13, did not exist.
Wright was arrested on charges of promoting the commission of a felony by encouraging, requesting or soliciting another to engage in illegal conduct, in this case being the sex with children.
He was convicted in 1992, pleaded guilty and was sentenced to 10 years in prison.
Wright has since been released. But he remains on lifetime probation as the offenses he was convicted of trying to commit are designated by law as “dangerous crimes against children.”
When the state sought to have his probation revoked in 2015 — the appellate court ruling last year 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 that “dangerous crimes against children” category. In essence, his attorneys are arguing that designation which resulted in the probation is based on a flaw because there were no actual children endangered.
In a ruling last year, 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 at the time. “The crime is complete when the solicitor, acting with the requite intent, makes the command or request.”
But that logic drew fire from appellate Judge Diane Johnsen. She argued 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.
Orozco, however, 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 prosecuters 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.”