The Washington State Court of Appeals has held that a statute making “luring” a crime is “overbroad” and is therefore unconstitutional as written. Rather than declare the statute void, the court construed it to include an intent-to-harm requirement.
Defendant Homan was convicted of luring in Lewis County Superior Court after offering candy to a 9-year-old boy while driving past the boy, who was riding his bicycle. Homan appealed, arguing that the statute he was convicted under was unconstitutionally overbroad.
Revised Code of Washington (RCW) Section 9A.40.090 makes it a crime to order, lure, or attempt to lure “a minor or a person with a developmental disability into any area or structure that is obscured from or inaccessible to the public . . . or into a motor vehicle.” Washington case law defines “lure” as an “invitation plus enticement.”
Someone may challenge a statute for being overbroad under the First Amendment, the constitutional amendment guaranteeing freedom of speech. When a statute prohibits more speech than is necessary, it is “overbroad” and therefore impinges free speech.
Washington courts decide whether a statute is overbroad by asking four questions.
First, the court will ask whether the law actually prohibits speech. In this case, RCW 9A.40.090 actually prohibits speech because a person can invite and entice another using words alone.
Second, the court will ask whether the law legitimately prohibits certain speech. The First Amendment does not protect all forms of speech. Some examples of unprotected speech are obscenity and child pornography.
In Washington and other jurisdictions, using speech to further criminal conduct involving a child is not protected under the First Amendment. Thus, speech used to lure a child is not protected.
Third, the court will ask whether, in addition to prohibiting unprotected speech, the statute also prohibits constitutionally protected speech. If so, it is overbroad. The court agreed with Homan that many different types of protected speech would be prohibited under the statute, including speech intended to help lost children, and speech that is mere jest or “idle” talk.
Finally, a law will only be overbroad if it prohibits a substantial amount of protected speech. Here, the court held that the statute does prohibit a substantial amount of protected speech because it has no criminal intent requirement.
The court of appeals in Homan’s case disagreed with an earlier Washington case, State v. Dana, which held that the luring statute was not overbroad. The court in Dana was incorrect because it did not engage in the four-step inquiry.
Here, the State argued that the affirmative defense kept the statute from being overbroad. The affirmative defense built into the statute says that a person is not guilty of luring if he or she does not have the intent to harm the health, safety, or welfare of the minor or person with developmental disability.
The court disagreed with the State because an affirmative defense is only available after the prosecution of the case begins. The burden of proving an affirmative defense is on the defendant. An affirmative defense cannot “cure” the statute’s overbreadth because it does not alleviate the risk that protected speech will be deterred or “chilled.”
Washington law requires that courts construe statutes to uphold constitutionality wherever possible. In this case, the court construed the statute to have a criminal intent element, even though the intent element is not written into the statute.
Thus, under Washington’s luring statute, a person can now be found guilty only if the State proves that the person had the intent to harm the health, safety, or welfare of the minor or person with a developmental disability. This is different from the affirmative defense because it is the State’s duty to prove it, not the defendant’s to disprove it.
The court sent Homan’s case back to the trial court for the State to present evidence, if it could, that Homan had the intent now necessary to be guilty of luring.