IS FREE SPEECH A DEFENSE TO THE CRIME OF GROOMING IN ILLINOIS?

The answer is generally not. Under the right circumstances, however, you may be able to prove that what you said to the child was in fact innocent.

Although a law may be deemed unconstitutional if it penalizes innocent people who reasonably believe they were acting legally, the Illinois appellate court has held that the grooming statute is not such a law. The law instead restricts speech that is integral to criminal conduct.

Under 720 ILCS 5/11-25, you commit grooming when you knowingly use an on-line or local bulletin board service or any other device with electronic data storage or transmission, perform an act in person or by conduct through a third party, or use or attempt to use written communication to seduce, solicit or lure a child or their guardian to commit a sex offense, to distribute photographs depicting a child’s sex organs, or otherwise engage in any unlawful sexual conduct with a child or a person you believe is a child. A “child” means a person under age 17.

In People v. Barker, the court rejected the defendant’s claim that the grooming law punished his innocent conduct. In that case, the defendant had: 1) knowingly engaged in an inappropriate relationship with a 14-year-old, 2) exchanged sexually explicit text messages asking for sex, and 3) researched how to block her phone’s GPS feature so her mother could not track her so that he could have sex. The court found the law was designed to protect against defendant’s exact actions.

Despite this outcome, it is possible that under very specific circumstances, you might be able to prove that your conduct or speech was innocent. A judge would likely consider the entire context of what you said or did in determining whether you were knowingly enticing a child. The state still has the burden of proving you guilty of all the elements of the offense beyond a reasonable doubt. If what you said or did seems unclear, you may be able to win a not guilty verdict.

If you have questions about this or another related Illinois criminal or traffic matter, please contact Matt Keenan at 847-568-0160 or email matt@mattkeenanlaw.com.

(Besides Skokie, Matt Keenan also serves the communities of Arlington Heights, Chicago, Deerfield, Des Plaines, Evanston, Glenview, Morton Grove, Mount Prospect, Niles, Northbrook, Park Ridge, Rolling Meadows, Wilmette and Winnetka.)

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