Virginia Solicitation of a Minor Defense
When a defendant is charged under Va. Code § 18.2-374.3(C) (victim younger than 15), the Commonwealth must prove the defendant knew or had reason to believe the victim was under that age. The statute’s knowledge element differs from subsection (D) (victim 15–17), and the two are not lesser-included offenses of each other. Federal law under 18 U.S.C. § 2422(b) similarly focuses on the defendant’s belief regarding the victim’s age.
In Mackey v. Commonwealth, 74 Va. App. 348, 869 S.E.2d 61 (2022), a 35-year-old defendant was indicted under subsection (C) for soliciting sexual intercourse from a 14-year-old girl via Facebook Messenger. At trial the judge found ambiguity in the victim’s testimony about her stated age and sua sponte convicted him under subsection (D).
The Virginia Court of Appeals reversed, ruling that subsection (D) is not a lesser-included offense because the knowledge elements are mutually exclusive and the trial court never formally amended the indictment under Va. Code § 19.2-231. This decision protects due-process rights in Virginia online solicitation of a minor prosecutions involving borderline age questions.
If you have been charged with Virginia computer solicitation of a minor, our firm can analyze the charging documents and evidence to build the strongest possible defense.