PA Superior Court, Com. v. Hacker No. 1659 WDA 2007

Ms. Hacker appealed her sentence based on convictions for one count of criminal solicitation (18 Pa.C.S.A. § 902(a)) with the intent of promoting or facilitating the rape of a child under thirteen (18 Pa.C.S.A § 3121(c)), based on the allegation that Appellant encouraged N.A. (a twelve-year-old girl) and C.G. (a thirteen-year-old boy) to engage in oral sex, two counts of disseminating sexually explicit materials to minors (18 Pa.C.S.A. § 5903(c)(1)), and four counts of corrupting the morals of minors (18 Pa.C.S.A. § 6301(a)(1)).

Two of the issues on appeal were (1) whether there was sufficient evidence for conviction for solicitation with the intent of promoting or facilitating the rape of a child under thirteen because C.G., being only thirteen, could not be convicted of raping a child by having consensual sex with that child, and (2) whether there was sufficient evidence for conviction for solicitation where the Commonwealth failed to prove she knew N.A. was under thirteen.

As to the first issue, the court distinguished this case from In re: B.A.M., finding here that while the difference in age between N.A. and C.G. was not numerically significant, that difference was legally significant. In particular, C.G., being thirteen, was legally capable of consenting to and initiating sex while N.A., being under thirteen, was not. As such, C.G. and N.A., while approximate chronological peers, were not legal peers. Therefore, the court rejected Ms. Hacker's first argument.

As to the second issue, the court found the solicitation statute required specific intent on the part of Ms. Hacker. The Commonwealth had the burden to prove Ms. Hacker knew the girl was under thirteen and did not do so, stated the court.

The court reversed only the conviction for solicitation and remanded for resentencing on the other counts.

Complete opinion: Com. v. Hacker No. 1659 WDA 2007