specially concurring.
{ 1 I specially concur to clarify the constitutional standard applied in this case. The United States Supreme Court has recognized that sexual expression which is indecent but not obscene is protected by the First Amendment. Sable Communications of California, Inc., v. F.C.C., 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 98 (1989). Because Section 1040.18a of Title 21 is a content-based restriction on such protected speech, we must determine whether its provisions withstand strict scrutiny. Under this standard, the State may "regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." Id. Section 1040.18a passes constitutional muster under this stringent standard.
12 The need to protect the physical and psychological well-being of a minor is unquestionably a compelling State interest. New York v. Ferber, 458 U.S. 747, 756-57, 102 S.Ct. 3348, 3354, 73 L.Ed.2d 1113 (1982). While parents may be able to monitor the places their children go and with whom they socialize, parents cannot control others who seek to send indecent communications to their children. The content based restriction in Section 1040.18a is narrowly tailored to guard against the insidious way third persons can reach minors in even the most private places and in a manner that parents cannot monitor,. It achieves this interest without unnecessary interference with First Amendment freedoms.
13 The Legislature's failure to include those law enforcement officers who use their apparent authority to accomplish sexual intercourse with a victim within the class of those governed by Section 1111 of Title 21 caused issues to arise in this case. Recogniz*1222ing the unique power and control governmental actors exercise over those under their custody or supervision, the Legislature provided that the crime of Rape may be committed "[wJhere the victim is under the legal custody or supervision of a state agency, a federal agency, a county, a municipality or a political subdivision and engages in sexual intercourse with a state, federal, county, municipal or political subdivision employee or an employee of a contractor of the state, the federal government, a county, a municipality or a political subdivision that exercises authority over the victim...." 21 0.8.2011, § 1111(7).
{4 Under the plain language of Section 1111(7), it applies only where the victim is in legal custody or supervision. However, the danger for an abuse of power by a member of law enforcement is not lessened simply because the victim is not in legal custody. Citizens routinely submit to law enforcement officers by virtue of the apparent authority they exercise under many cireumstances which do not involve legal custody or supervision. No less could be expected of a minor between the ages of sixteen and eighteen. The facts of the present case indicate that Arganbright used his unique position of power and control as a police officer to gain access to and pressure the minor victim into engaging in sexual conduct. Yet because Section 1111(7) does not encompass a police officer's use of his or her apparent authority to engage in sexual intercourse with one who is not in legal custody, Arganbright could not be charged with Rape. The provisions of Section 1111 should, therefore, be amended to specifically prosecribe sexual intercourse by a member of law enforcement with a victim who is between the ages of sixteen and eighteen.
T5 I am authorized to state that Judge Arlene Johnson joins this special concurrence.