Deconstructing the Law: Virginia Code § 18.2-374.3

To understand the legal battle ahead, we must first dissect the statute that the Commonwealth’s Attorney will use to prosecute the case. Virginia Code § 18.2-374.3 is a precisely worded law that targets the act of using technology to arrange an illicit sexual encounter with a minor. To secure a conviction, the prosecutor must prove every single element of the statute beyond a reasonable doubt. A thorough defense is built by identifying and attacking the weakest points in the Commonwealth’s proof of these elements.

From years of litigating these cases, I know that the entire trial revolves around proving the following components based on a log of digital messages:

1. Use of a Communications System: This is the jurisdictional element. The law applies to any “communications system, including but not limited to computers and computer networks.” This broad language covers everything from a desktop computer to a smartphone, and any platform from email and chat rooms to social media DMs and messaging apps like Kik, Discord, or Snapchat.
2. For the Purpose of Soliciting, Procuring, or Promoting: This is the core action, or *actus reus*, of the crime. The Commonwealth must prove that the defendant’s communications constituted an active solicitation. This means to ask for, urge, or entice. It is more than just having a passive or responsive conversation; it requires an affirmative act of seeking out an illicit act.
3. A Minor or Law Enforcement Officer Posing as a Minor: This is the key element that enables sting operations. The law makes it illegal to solicit a person who is actually a minor *or* a person the defendant *believes* to be a minor. This means the Commonwealth does not need a real child victim. The entire case can be—and almost always is—built on conversations with an adult police officer pretending to be a teenager online.
4. To Commit a “Specified Illegal Act”: The solicitation must be for a specific illegal purpose. The statute lists several underlying crimes from the Virginia Code, most commonly:
   • Taking indecent liberties with a child (§ 18.2-370 or § 18.2-370.1)
   • Fornication, cunnilingus, or fellatio with a minor (§ 18.2-361)
   • Object sexual penetration (§ 18.2-67.2)

   The prosecution must show that the defendant’s words were aimed at arranging one of these specific sexual acts.

The crime is complete the moment the solicitation is made. The Commonwealth does not need to prove that any physical meeting occurred or that any sexual act took place. The crime is the communication itself.

The Anatomy of a Virginia ICAC Sting Operation

It is essential to understand that solicitation of a minor cases in Virginia are not discovered by chance; they are actively created by law enforcement. Specialized Internet Crimes Against Children (ICAC) task forces, comprised of state and local police, dedicate immense resources to conducting undercover online sting operations. Recognizing their playbook is the first step in deconstructing the case against you.

Over my career, I have cross-examined numerous undercover officers and reviewed countless case files. The pattern is remarkably consistent. Here is how a typical Virginia sting operation unfolds:

1. Creating the Decoy Profile: An officer creates a fake online profile of a minor, often a 13 or 14-year-old girl. They use age-appropriate language, interests, and sometimes photos (often of an adult who looks young or AI-generated images) to make the profile seem authentic.
2. Entering Online Spaces: The officer takes this decoy persona into online chat rooms, dating apps, or social media platforms known for adult interaction. They may wait for individuals to contact them or proactively initiate conversations.
3. Steering the Conversation: The officer’s objective is to guide the conversation toward sexual topics. They are trained to be patient and subtle, often bringing up topics like loneliness, problems with parents, or curiosity about sex to make the target feel comfortable and drop their guard.
4. Eliciting the “Magic Words”: The officer’s goal is to elicit incriminating statements from the target. They need the target to:
   • Acknowledge they believe they are talking to a minor. (e.g., “I know you’re only 14 but…”)
   • Make an explicit solicitation for a sexual act. (e.g., “I want you to…”)
   • Attempt to arrange a physical meeting.
5. The “Meet”: If the target agrees to a meeting, the ICAC team will set up surveillance at the designated location (e.g., a park, a mall food court, a hotel lobby). When the target arrives, the arrest is made.

The entire conversation is recorded and becomes the primary evidence. While these operations are legal, the officer’s conduct is a central focus of the defense. Did they merely provide an opportunity for a predisposed individual to commit a crime, or did their tactics cross the line into improper inducement or entrapment?

Penalties and Lifelong Consequences of a Conviction

A conviction for solicitation of a minor in Virginia is a catastrophic event with severe and permanent consequences. The penalties extend far beyond a prison sentence, imposing a lifetime of registration and restrictions that affect every aspect of a person’s existence. Understanding the full scope of these penalties is crucial for appreciating the gravity of the charge.

The penalties under VA Code § 18.2-374.3 are tiered based on the age of the minor involved:

• If the defendant is 18 years of age or older and solicits a minor aged 15 or older (or an officer posing as such), it is a **Class 5 felony**. This carries a potential prison sentence of **1 to 10 years**.
• If the defendant is 18 years of age or older and solicits a minor under the age of 15 (or an officer posing as such), it is a **Class 4 felony**. This carries a potential prison sentence of **2 to 10 years** and a fine of up to $100,000.

While those prison ranges are significant, it is the collateral consequences that are truly lifelong:

Mandatory Lifetime Sex Offender Registration

A conviction for violating § 18.2-374.3 requires mandatory registration on Virginia’s Sex Offender and Crimes Against Minors Registry. This is not a temporary status; it is for life. Registration entails:

• Public Disclosure: Your name, photograph, home address, work address, and conviction details are posted on a public website accessible to anyone.
• Frequent Reporting: You must re-register in person with law enforcement, often every 90 days or 180 days, for the rest of your life.
• Residency Restrictions: You are prohibited from living in certain areas, creating immense difficulty in finding housing.
• Employment Restrictions: You will be barred from countless jobs, particularly in education, childcare, healthcare, and any field requiring a security clearance or position of trust.
• Travel Restrictions: Your passport will be marked, and international travel may become impossible.

A conviction also results in the loss of civil rights, including the right to vote (while incarcerated or on probation/parole) and the lifetime loss of the right to possess a firearm. It destroys personal relationships and creates a permanent social stigma from which it is nearly impossible to recover. The goal of a strong defense is to avoid these devastating outcomes at all costs.

The Virginia § 18.2-374.3 Defense Preparation Guide

When facing an accusation of online solicitation, the digital conversation is the entire case. A meticulous and honest reconstruction of your digital activity and interactions with law enforcement is the foundation of a strong defense. This **Virginia § 18.2-374.3 Defense Preparation Guide** is a confidential framework to help you organize this vital information for your attorney before your initial case assessment.

Part 1: Communications Systems and Platforms

The Commonwealth will trace your digital footprint. Your attorney needs a complete map.

• Devices: List every computer, laptop, smartphone, and tablet you own or use regularly. Note which, if any, were seized by police.
• Platforms & Usernames: List every chat service, social media platform, dating app, and online forum you have used. For each platform, list the specific username or screen name you used. (e.g., Platform: Kik, Username: [Your Username]).

Part 2: The Undercover Communication

Your recollection of the conversation is critical, even if police have the log.

• Initiation: Who started the conversation? Did the “minor” contact you first, or did you initiate contact?
• Progression: How did the conversation turn sexual? Did you introduce the topic, or did the “minor” repeatedly steer the conversation in that direction?
• Key Phrases: Write down any specific things you remember saying or that the undercover officer said, especially regarding age, meeting, or sexual acts.

Part 3: The Arrest and Interrogation

Document every detail of your contact with law enforcement.

• The Arrest: Where and when were you arrested? Which police agency made the arrest (e.g., Fairfax County Police, Virginia State Police)?
• The Interrogation: Were you questioned? Where did the questioning take place? Who was present? Write down everything you remember saying. Any statement you made is critical evidence for the prosecution.
• Miranda Rights: Were you read your Miranda rights (“You have the right to remain silent…”)? If so, at what point? Before or after questioning?

Part 4: Evidence Preservation Directive

This is a crucial instruction for you to follow *now*.

• Do NOT delete any online profiles, messaging apps, or conversation histories.
• Do NOT wipe or factory reset any of your devices, even those not seized by police.
• The act of destroying data can be used as powerful evidence against you. Preserve everything for your attorney to review.

Completing this guide allows your defense attorney to immediately begin analyzing the key legal issues in your case, such as intent and entrapment, and to formulate the most effective defense strategy.

Core Defenses in a Virginia Solicitation Case

Defending against a solicitation charge in Virginia requires a strategy focused on reasonable doubt. The Commonwealth has the burden to prove every element of the crime, and a skilled defense attorney’s job is to dismantle their case. The defense is rarely about what happened, but rather about what the defendant *intended* and whether law enforcement’s conduct was proper.

In my years defending these cases, I have found that a successful defense often hinges on a deep analysis of the chat logs and the undercover officer’s behavior. The following are fundamental defense principles we explore.

1. The Entrapment Defense

Entrapment is a very specific legal defense. It is not simply about an officer lying about their identity. In Virginia, to prove entrapment, the defense must show two things: (1) that the idea for the crime originated with the police, and (2) that the defendant was not otherwise predisposed to commit the crime.

• Improper Inducement: This involves scrutinizing the undercover officer’s tactics. Did they engage in persistent persuasion, appeals to sympathy, or threats to overcome the defendant’s reluctance? A defense attorney will analyze the chat log to see if the officer’s conduct went beyond merely providing an opportunity.
• Lack of Predisposition: This involves demonstrating that the defendant had no prior history or interest in this type of offense. A clean criminal record and the absence of any other incriminating evidence on the defendant’s devices can help support the argument that they were not predisposed and only engaged in the conversation due to the officer’s improper inducement.

Entrapment is a high bar, but it is a critical defense to evaluate in every sting operation case.

2. Challenging Intent: “It Was Just Talk” or Fantasy

The Commonwealth must prove the defendant had the specific intent to solicit a minor for an illegal sexual act. The defense can argue that the conversation, when viewed in its full context, does not demonstrate this intent.

• Fantasy or Role-Play: Many online communities are built around fantasy and role-playing. A defense can be made that the defendant believed the entire interaction was a fantasy scenario between consenting adults and that they had no intention of ever acting on it in the real world.
• Lack of Affirmative Solicitation: The defense can argue that the defendant was merely a passive or responsive participant in a conversation driven entirely by the undercover officer. If the officer introduced all sexual topics and the defendant was merely going along with the conversation, it can be argued that this does not meet the legal definition of “solicitation.”

3. Attacking the Digital Evidence and Attribution

While less common in solicitation cases where conversations are the main evidence, we still must challenge the technical aspects. Can the Commonwealth definitively prove the defendant was the person behind the keyboard? If a computer was shared by multiple people, or if a device was ever compromised by malware or unauthorized access, it can create reasonable doubt about who was sending the messages.

Critical Errors to Avoid When Accused of Solicitation

Being arrested in an ICAC sting is a shocking and disorienting experience. The fear and shame can lead people to make impulsive decisions that can irreparably harm their legal defense. As a defense attorney who has seen the aftermath of these mistakes, I urge anyone in this situation to proceed with extreme caution and deliberation.

1. Talking to the Police After Arrest: This is the most damaging mistake. Police will place you in an interrogation room and try to get a full confession. They will suggest it is “your only chance to tell your side of the story.” This is false. Your “side of the story” is for your attorney to present in court. Anything you say will be used to destroy your defenses. The only correct response is to invoke your right to remain silent and ask for a lawyer.
2. Believing the Officer Was Your “Friend”: Undercover officers are trained to build rapport and feign empathy. You may feel like you had a connection with the online persona. You did not. It was a calculated law enforcement tactic. Do not let this feeling of betrayal lead you to confess out of confusion or hurt.
3. Deleting Online Profiles or Messages: After an arrest, your first instinct may be to delete the profiles or apps involved. Do not do this. The police likely already have a complete record of the conversations. Deleting your accounts will be presented to the jury as “consciousness of guilt” – proof that you knew you did wrong and tried to hide it.
4. Consenting to Further Searches: After the initial arrest, police may ask for consent to search your phone or other devices. Do not provide consent or passwords. Force them to obtain a search warrant for every subsequent search.
5. Trying to Handle the Arraignment Alone: An arraignment is your first court appearance. It is critical to have an experienced criminal defense attorney by your side from this very first step to handle bail arguments and begin the defense process.
6. Delaying Hiring an Attorney: The time between your arrest and trial is when your defense is built. Evidence needs to be reviewed, motions need to be filed, and a strategy must be developed. Delaying hiring a knowledgeable sex crime defense lawyer puts you at a severe disadvantage.

Glossary of Key Legal Terms

Virginia Code § 18.2-374.3

The primary Virginia statute making it a felony to use a computer or communications system to solicit a minor for an illegal sexual act.

ICAC Task Force (Internet Crimes Against Children)

A network of state and local law enforcement task forces, coordinated by the federal government, that specialize in investigating and prosecuting technology-facilitated child sexual exploitation.

Sting Operation

An undercover law enforcement operation in which an officer poses as a potential participant in a crime (in this case, a minor) to gather evidence against a target.

Entrapment

A legal defense where a defendant argues they were improperly induced by law enforcement to commit a crime they were not otherwise predisposed to commit.

Predisposition

A key element in an entrapment defense. It refers to the defendant’s readiness or inclination to commit the crime before being approached by law enforcement.

Commonwealth’s Attorney

The official title for the elected local prosecutor in each Virginia county and city who is responsible for prosecuting state criminal cases.

Sex Offender Registry

A public database, maintained by the Virginia State Police, containing the names, addresses, photographs, and conviction information of individuals convicted of registrable sex offenses.

Common Scenarios Leading to Solicitation Charges

Solicitation cases in Virginia almost always follow a similar script, initiated and controlled by law enforcement from start to finish. Understanding these common fact patterns helps to illustrate how these charges develop.

Scenario 1: The Dating App Sting

A man in his 40s is Browse a dating app. He sees a profile for “Amber, 19.” He initiates a conversation. Early in the chat, “Amber” (an undercover officer) reveals she lied on her profile and is “actually 14.” The officer then continues the conversation, steering it towards sexual topics. The man continues to engage, eventually making a solicitous comment and agreeing to meet. He is arrested at the arranged location. The defense would focus on the officer’s inducement and whether the man’s intent was criminal or just foolish talk.

Scenario 2: The Chat Room Encounter

An individual is in an anonymous online chat room. An undercover officer, posing as a teenager, enters the room and makes a general statement about being bored and looking for fun. The individual responds with a private message. The officer escalates the conversation quickly, asking for explicit details of what the individual would want to do. The individual responds with explicit fantasy details. The officer asks for a meeting. Even if the individual declines to meet, the explicit solicitation itself is enough to secure an indictment.

Scenario 3: The “Wrong Place, Wrong Time”

A person joins a group chat on a messaging app like Kik that is known for adult content. The group is being monitored by an ICAC task force. An undercover officer is in the group, posing as a minor. The individual makes a general, solicitous comment to the group as a whole, not directed at any specific person. The undercover officer engages the individual based on that comment, leading to an investigation and charges. The defense would focus on the lack of specific intent to solicit the person they now claim was the target.

Frequently Asked Questions (FAQ)

1. I never intended to actually meet the person. Can I still be charged?

Yes. The crime under VA Code § 18.2-374.3 is the act of solicitation itself. The Commonwealth does not need to prove you intended to meet or that a meeting ever took place. The words of the communication are the crime.

2. Isn’t it entrapment if the police officer lied about being a minor?

No. Police lying about their identity is a standard and legal part of any undercover operation. Entrapment requires a much higher level of improper inducement by the government, such as repeated pressuring of a reluctant target. Merely providing the opportunity for someone to commit a crime is not entrapment in Virginia.

3. The officer contacted me first. Doesn’t that matter?

It can be a key fact in an entrapment defense, but it is not enough on its own. The defense would need to show that after initiating contact, the officer then had to improperly persuade you to make the illegal solicitation. Who started the conversation is just one piece of the puzzle.

4. Will this be a state or federal charge?

In Virginia, these cases are most often prosecuted in state Circuit Court under the Virginia Code. However, if the investigation involved federal agencies like the FBI or if there are other aggravating factors, the U.S. Attorney’s Office could decide to bring federal charges, which often carry harsher mandatory minimum penalties.

5. I was drunk when I had the conversation. Is that a defense?

Voluntary intoxication is generally not a recognized defense to a crime in Virginia. You cannot excuse your actions by claiming you were drunk. However, it could potentially be used as a mitigating factor at sentencing to argue for a more lenient sentence within the statutory range.

6. I confessed to the police. Is my case hopeless?

No, but it is much more difficult. A confession is powerful evidence for the Commonwealth. However, a skilled attorney can still challenge the case. They can file a motion to suppress the confession if it was obtained in violation of your Miranda rights, or they can still argue defenses like entrapment at trial.

7. How long do I have to be on the Sex Offender Registry in Virginia for this crime?

A conviction for § 18.2-374.3 requires lifetime registration. There are very limited and difficult paths to petition for removal after several decades, but for all practical purposes, you should consider it a lifelong requirement.

8. What happens at the “meet” if it’s a sting?

The “meet” is simply the location for the arrest. It is always in a public or semi-public place controlled by law enforcement. The moment you arrive and are identified, a team of officers will move in and take you into custody. The undercover officer you thought you were meeting will not be there.

9. Can my chat history be taken out of context?

Yes. A prosecutor will often try to present only the most incriminating parts of a conversation to the jury. A key role of your defense attorney is to force the Commonwealth to introduce the entire conversation, providing the full context which may show hesitation, fantasy, or inducement by the officer.

10. Should I hire a local lawyer?

It is critical to hire a lawyer with extensive experience defending these specific types of cases in the Virginia Circuit Court where you are charged. They will be familiar with the local Commonwealth’s Attorney’s office, the judges, and the specific tactics of the local ICAC task force, which is an invaluable advantage.