Bobby Blackburn

The attorney for a Floyd County pastor accused of using a cell phone to exploit a minor is seeking a dismissal of the charges, claiming that state laws are unconstitutional because a 26-year-old man could legally have sex with a 17-year-old.

Attorney Steve Owens made a motion to quash the indictment against Bobby Jordan “BJ” Blackburn, 26, of Prestonsburg, during an arraignment in Floyd Circuit Court on Thursday.

Blackburn was indicted in August for two felony counts of prohibited use of an electronic device to procure a minor to perform a sexual act. He has denied the allegations.

The indictment stems from an investigation that was launched earlier this year by the Prestonsburg Police Department. 

Following that investigation, Blackburn was charged with one felony count of prohibited use of an electronic device to procure a minor to perform a sexual act for crimes that allegedly occurred in May. The second charge issued by the grand jury concerned alleged crimes that allegedly took place in 2016-2017. 

The alleged victim was a 17-year-old who worked for Blackburn at Giovanni’s in Prestonsburg — a restaurant that is now under new management. Blackburn has informed the court that he is now unemployed. 

In the motion to squash the indictment, Owens cites age of consent laws in Kentucky. The state’s statutory rape law prohibits sexual intercourse with persons under the age of 16, and the age of consent is raised to age 18 if the offender is in a position of trust or authority over the victim. 

Blackburn was indicted under a state law that makes it a felony to use an electronic communications system to procure a minor to commit a sexual offense. That law — which does not list ages — references other state laws, two of which are also listed as part of Blackburn’s indictment. 

Owens argues that another state law defining third-degree rape, KRS 510.060 (b), makes it legal for any adult who is not at least 10 years older than a 17-year-old teenager to have sex with the teenager. That law says a person is guilty of third-degree rape if “being at least ten (10) years older than a person who is sixteen (16) or seventeen (17) years old at the time of sexual intercourse, he or she engages in sexual intercourse with that person.” 

“(Blackburn) could have lawfully had sex with the 17 year old, he not being 10 years older than the 17 year old, and therefore could have asked the 17 year old to engage in lawful sexual activity and there will be no evidence that unlawful sexual activity was being procured,” Owens wrote in the motion. “Wherefore, the defendant prays for the appropriate order quashing the indictment and dismissing.” 

He argues that the state law is unconstitutional. 

“(Blackburn), at 26 year old, could legally have sexual intercourse with a 17 year old. However, under the commonwealth’s adoption of 510.155 (1) a 26 year old could not send an electronic message to a 17 year old to engage in sexual intercourse. Therefore, KRS 510.155 (1) is unconstitutional on its face and as applied because it fails to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits and it authorizes and even encourages arbitrary and discriminatory enforcement.” 

Owens mailed a copy of the motion to Kentucky Attorney Andy Beshear, the document says. 

Addressing the motion to quash in Floyd Circuit Court on Thursday, Circuit Judge Tom Smith said, “I don’t see the attorney general’s office here. I don’t know if Mr. (Brent) Turner wants to argue the Constitution or not.” 

After comments from Owens, Smith said, “I think I’m going to pass on that motion. I assume that’ll get above my pay grade pretty quick.

Owens also sought to have Blackburn taken off home incarceration, reporting that he has been on home incarceration for over 100 days. In a motion filed Aug. 29, Owens sought to lower Blackburn’s bond to $5,000 surety and his removal from home incarceration, arguing that he has longstanding ties to Floyd County, is not a flight risk, has made all court appearances and no longer has an income. Several people attended court to support him Thursday. 

Smith denied the motion, but noted the possibility of working to “loosen the reins” on home incarceration so Blackburn can consult more easily with his attorney. He set Blackburn’s bond at $10,000 surety and ordered him to remain on home incarceration.

He scheduled a pretrial conference in the case for Dec. 12. 

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