Missouri high court upholds law on sexual solicitation

JEFFERSON CITY, Mo. -- The Missouri Supreme Court has upheld the constitutionality of a state law that led to the conviction of a 61-year-old man for making sexual comments to a 13-year-old girl.

In a 5-2 decision Tuesday, the state's highest court found that the 1994 law against lewd solicitations did not infringe on the constitutional right to free speech.

The law makes it a crime to solicit or request that a person engage in sexual conduct under circumstances in which a person knows a request will cause "affront or alarm."

Under that law, Charles E. Moore of Springfield was convicted in Greene County of misdemeanor third-degree sexual misconduct in June 2001 and received a 15-day suspended jail sentence for making comments to a girl at a Springfield restaurant run by her family.

Known as "Grandpa" at the restaurant which he frequented, court documents said Moore asked the girl in late 2000 if she would perform an exotic dance for him at his home and then asked if she wanted to learn how to perform oral sex.

Moore sought to have the conviction reversed and the law thrown out. He told police that he had made references to oral sex but did not attempt to solicit sex from the girl, who was not identified in court.

In the ruling, Judge Michael Wolff said the comments were not free speech but rather a solicitation that caused distress. Wolff suggested that had a sexual act occurred, Moore could have faced first-degree sodomy charges.

"The solicitation or request is not just speech, but conduct that the defendant under the law is presumed to know is likely to cause affront or alarm," Wolff said. The state law "does not violate the constitutional guarantee of freedom of speech. The trial established that the 13-year-old victim did in fact experience affront or alarm."

Joining Wolff in the decision were Chief Justice Stephen Limbaugh Jr. and judges Duane Benton, William Ray Price Jr. and Laura Denvir Stith.

Judge Richard Teitelman, joined by Judge Ronnie White, dissented, saying the conviction should have been overturned.

While conceding that Moore's language was "reprehensible," Teitelman said the state solicitation law was "an unconstitutionally overbroad prohibition of speech protected by the First Amendment."

Although Moore's jail sentence was suspended, he was given two years probation and was prohibited from having contact with the girl or her family. He also was required to register as a sex offender in the county.

Attorneys differed on whether the Supreme Court's decision -- made in a case involving an adult and a juvenile -- would apply to a case involving two adults.

Bruce Galloway, Moore's attorney, said he felt that the judges weren't intending their decision to apply to adult sexual speech.

"As a citizen, I was alarmed that there was a statute so broad that it regulated adult speech," said Galloway, adding that he respected the court's decision.

Jill Geary Patterson, a Greene County assistant prosecutor, said she believed the law could be applied to situations involving adults.

But in this case, "it's so patently offensive, because we're talking about a young child and an old man," Patterson said.