To Catch A Predator

[MMandM]

The practice has become widespread undercover agents pose as children on Internet chat rooms. When adults strike up online relationships and arrange for sexual liaisons, police are waiting at the rendezvous point with handcuffs and arrest warrants.

But a ruling of a federal court judge in Ca is calling the legality of the tactic into question.

The U.S. District Judge acquitted a man last week of using the Internet to try to entice a child into sex. The man's attorney, had argued that his client didn't break federal law because the person his client was accused of enticing wasn't a minor but a County deputy pretending to be a minor.

 

The ruling came just minutes after a jury returned a guilty verdict. The defendant had faced a sentence of five to 30 years. The Judge reversed the jury's decision not withstanding the verdict.

 

Is anyone bothered by this kind of sting?

 

I'll post my opinion later.

Edited April 22, 2007 by MarkESQ

[Luc]

So the guy (assuming) chats up what he believes to be a minor and arranges to meet this minor for sex. But instead of meeting this minor, he meets a police officer who had pretended to be a minor. He is convicted by a jury of using the internet to entice a child into sex.

 

The conviction is overturned and he is acquitted because he had not actually broken federal law because the person he had actually enticed was not a minor but a police officer pretending to be a minor.

 

Do I have this right?

 

The problem I have is with the acquittal. The man

[Graeme]

What he said....

 

Seriously -- I don't have a problem. Even if the officer tries to initiate things, any adult on the internet who is communicating with someone they believe to be a minor MUST act as if that person IS a minor and avoid anything of a sexual nature.

 

The ONLY defense I would accept is if the person could demonstrate that they believed the person to NOT be a minor, and I would have to see good evidence to support that belief.

[Lugh]

I have serious issues with the overruling of the case. He believed he was committing a crime, therefore he was.

 

The only issue I have with these types of sting operations is this:

 

if the adult/preditor does not instigate the redevous... then isn't that a form of entrapment?

 

I'm not saying it shouldn't be done... just done carefully.

 

Lugh

[Graeme]

if the adult/preditor does not instigate the redevous... then isn't that a form of entrapment?

An interesting question. I don't know the legalities (and certainly I don't know the USA legalities), but my understanding is that we don't have a reciprocal relationship here. It is okay for a minor to approach an adult for sex, but it is illegal for the adult to accept that approach, or to approach the minor for sex. It is a situation where the adult is responsible for making sure they stay legal -- arguing that the minor initiated the encounter is not a valid defense.

[C James]

I suspect that the Judge rulled correctly on the law, which means that the law needs to be amended, ASAP!

 

I think that the law should make it clear that luring a minor or someone the defendant believed to be a minor should both be equally illegal: Throw the book as the predator. However, even though the case is reprehensible, I can't fault the judge if he ruled in accordance to the law (that, after all, is his job).

 

I just wish that the defendant wasn't getting away with this. That disgusts me.

 

 

The issue of minors is, in my opinion, one that needs to be looked at closely regarding what the defendant plausibly believed. I'll give a real-life case as an example: A friend of mine in Phoenix was 20. He started talking with a guy at a club that you have to be 19 to enter. The guy was a Junior in college. The guy also told my friend directly that he was 19.

 

My Friend asked the "19" year-old out on a date. Apparently things went well, and after a few more dates, they became more than friends. Then, the new boyfriend mentions, offhand, that's he's turning 18 in a few days. He'd been lying about his age due to having started college at 16, and also to get into the club (which was where my friend asked him his age). The 17 y/o didn't see why any of this was a "big deal", though he apologized for his initial lie. I should mention that Arizona does not have an age of consent.

 

My friend, however, freaked, and phoned me. He really liked his new boyfriend, but was panicked over the law.

 

Technically, my friend did break the law. He met a minor (in person rather than online, granted) and pursued a sexual relationship. However, he had no idea that there was a minor involved, and had sound reasons to believe otherwise. This is why I feel that intent is so important in legal matters.

 

My other is this: Just because someone SAYS they are not a minor, doesn't mean they aren't. So, be very careful online. My own personal rule is that there are two kinds of people that I won't flirt with online: Minors and adults. Anyone else is fair game.

 

As a side note, the aforementioned friend and the boyfriend have been together for the three years since the event I recounted, and

are planning a commitment ceremony this summer.

[MMandM]

Boy you guys bring up some pretty good points.

 

Prosecutors are responsible for charging the appropriate crime. However, prosecutors routinely stack the deck in their favor by charging both criminal attempt and attempted enticement. The time is long overdue for prosecutors to be held accountable for their misuse of law.

 

Criminal attempt is a specific intent crime. It requires the defendant to specifically intend to commit a particular crime and he must purposefully/intentionally engage in conduct that constitutes a substantial step toward the commission of the crime.

 

A substantial step goes beyond mere preparation and is suitable for the purpose of committing the intended crime, but fails to result in the commission of the intended crime.

 

I will acknowledge that "attempted attempt" crimes are being formulated to create a broad and sweeping net to capture Internet predators of children, and while the ends are legitimate, the means used are constitutionally suspect.

 

Congress has the power to regulate the channels of interstate commerce. When looking at the federal statute that substantially defines a crime as follows:

 

Whoever--

1. Using a means of interstate commerce

2. Knowingly

3. solicits

4. any minor

5. to engage in illegal sexual activity

shall be fined and/or imprisoned.

 

Solicitation of another to engage in criminal activity is only prepatory to the crime and not an overt act, which would support a conviction for attempt. To call solicitation an attempt is to delete the overt act element necessary for an attempt.

 

Therefore, solicitation alone can never serve as a basis for attempted sexual abuse of a minor. It is too far attenuated, it lacks the substantial step necessary to constitute an attempt. At best, solicitation is in the nature of an attempt because the intent is there, but the overt act is missing.

 

Attempted solicitation or enticement would then be yet another step removed from the actual harm that the law seeks to prevent. At best, it is an attempt to commit a crime in the nature of an attempt.

 

Many courts have ruled that there is no such crime as an attempt to commit an attempt or an attempt to commit a crime that is in the nature of an attempt.

 

Punishing an individual's beliefs (or erroneous beliefs) or evil intent rather than his culpable conduct is just as reprehensible under our Constitution as punishing status rather than culpable conduct.

 

Read commonwealth vs. Jerry Hamel;

 

http://caselaw.lp.findlaw.com/scripts/getc...913&invol=1

 

Another case discussing the MPC's focus on the actor's mind:

 

http://www.courts.state.ny.us/reporter/arc...s/p_dlugash.htm

 

A review of the decision and the law of criminal attempt discloses several constitutional defects in the prosecution of the defendant in this case.

 

Strong arguments can be made that:

 

1) The statute is constitutionally void for vagueness because it fails to provide notice of the elements of the crime of attempt and because it fails to provide courts with clearly defined standards for applying the law.

 

2) The federal court, in adopting the Model Penal Code (MPC) definition of criminal attempt, violated the constitutional separation of powers doctrine and usurped the power of the legislative branch to define crimes. The people of this country did not elect the American Law Institute (ALI) or the drafters of the MPC to make public policy decisions and to define crimes. The legislative branch's power to define crimes (to set forth the essential elements that constitute a crime) reflects the public policy decisions of our elected representatives in Congress and this power/duty cannot be delegated to the ALI or the judicial branch.

 

3) If the common law definition of the crime of attempt is applied to this case, than the MPC definition then the evidence was insufficient as a matter of law to prove the overt act (CONDUCT) element of the offense. It cannot be proved that the defendant's conduct came dangerously close to the commission of the actual crime.

 

The bottom line in this case is if there is no act there is no crime, the culpable conduct is being diluted to the point where we are no longer trying to prevent or punish crime, rather, we are punishing the mere possession of an evil mind.

[tesIII]

I watched that show twice. I HATED it.

 

There was just this grotesque assembly line of middle-age guys stepping forward to recieve their "inhuman monster" stamp from the national news media. What a witch hunt!

- First of all, we would do well to remember that people that do "bad" things are people, not monsters. We are all capable of their weaknesses; that's right, us. Nobody is a monster, and no person's evil-doing is possible without the influence of society as a whole on es behavior.

- Second, why were there so very many of them? Isn't the very premise of our community that just because we are a minority doesn't make us abnormal? If one or two showed up, we could safely assume they were exceptionally twisted. Since so many showed up, we can only assume that some brain characteristic or social circumstance causes these individuals to engage in this kind of behavior. This is why we need more positive measures: we need to appeal to the obviously diverse group that experience these urges with the message that adults seeking sex with minors is inappropriate for x, y, and z reasons, and that it is never a sign of weakness to seek the assistance of counseling in dealing with those urges and thoughts.

- The deceptions of their online actor call attention to the actual behavior of the online girls causing this kind of behavior outside of NBC's experiment. These issues within the online community could not exist without both groups of willing participants. Without at all detracting from the terrible reality of rape or the often-problematic unwillingness of women to report it, should we consider the possibility that many of these men are "repeat offenders" because actual girls got involved consentingly and enjoyed the attentions of older men?

 

Before you ask, I'm 18 years old, and not a pedophile defending pedophiles. I think the consequences of their actions can be horrible, but I think the consequences of Salem/HUAC style paranoia are at least as bad.

 

To me, the legal issues of arresting those guys are one thing, the fact that To Catch a Predator is typical of thoughtless, sensational, bad television is another.

[JamesSavik]

I can't address this topic without swerving off into politics. I will try to stay in the middle of the road but if the mods kill this post I'll understand

 

FUD= Fear, Uncertianty and Doubt

 

Whenever politicians are slinging FUD, you can be sure they expect you to give up some freedoms.

 

The FUD bandwagon is pounding the drums loudly about sexual predators. CNN and Fox both have hour long shows that talk about very little else. Politicians love to sign their names to tougher and tougher laws: life-long registration of sex offenders, life imprisionment for a first offense, mandatory minimum sentencing. We are told day after day that pedophiles are unredeemable and must be put away forever. This crime is such a horror- constution? We don't need no stinking constution. Illegal searches- don't matter. Due process? Entrapment? Forgetaboutit. The ends justify the means, right?

 

Never mind the fact that up to 30% of sex crimes end up being false accusations. Many of them only come up when a divorce is in progress or there is some money or a grudge involved.

 

Does any of this sound at all familiar? Remember the Drug War? How about the Patriot Act?

 

Does it make you feel any safer that the goverenment can suspend constutional liberties and protections when they are inconvenient? Since those changes in the law have been made to fight drugs and terrorists, are we now more or less vulnerable to malicious manupulation and misuse of those laws?

 

Are there less drugs and terrorists now?

 

Are there grandstanding D.A.s just waiting to jump into the limelight with a spicy sex case like the prosecutor in the Duke Lacrosse rape case? You bet your ass there are.

 

We don't have to worry about our country becoming a dictatorship. It is well on its way. Every constutional liberty that we relenquish out of fear is another nail in the coffin of liberty.

 

If you think I'm being alarmist, where do you think sex laws came from? For generations, in a different form, sex laws (sodomy laws) were used as a legal club to beat homosexuals and run them out of town. It has only been since the seventies that sex laws have become about protecting women and children.

[MMandM]

Excellent James There is a lot of truth to that statement.

 

Due process protects the accused against conviction except upon proof beyond a reasonable doubt of EVERY FACT NECESSARY to constitute the crime with which the accused is charged.

 

The government must prove the essential elements of the crime charged. The essential elements of the crime of attempt are 1) specific intent to commit the underlying substantive crime, and 2) overt act.

 

The critical overt act element must be proved beyond a reasonable doubt. EVIDENCE of the overt act must be sufficient to prove (to allow a rational jury to conclude) that the accused engaged in CONDUCT "very near to the accomplishment" of the attempted offense. People v. Rizzo, 246 N.Y. 334, 158 N.E. 888, 889 (N.Y. 1929). The law of criminal attempt "considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable PROBABILITY the crime itself would have been committed but for timely interference.

 

Under Rule 401, Federal Rules of EVIDENCE, ""Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 402 provides, "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible."

 

Certainly, in a prosecution for the crime of attempt, any evidence that shows that the Defendant's conduct did or did not come dangerously close to the accomplishment of the attempted offense is relevant and admissible. There is no existing ACT of CONGRESS or Supreme Court rule that makes evidence of "impossibility" inadmissible to demonstrate the probable existence or nonexistence of an essential element of a crime (e.g., the critical overt act element of the crime of attempt). Although some claim "impossibility" has been "thoroughly discredited" as a defense, you cannot deny that evidence of "impossibility" is relevant and admissible if the evidence tends to make the existence of a essential fact (element) of a crime less probable.

 

In defining crimes, Congress often uses the word "endeavor" in place of the word "attempt." Although the Supreme Court previously failed to apprehend that the two words are synonymous when it said in dicta that using the word "endeavor" gets rid of the technicalities which might be urged as besetting the word "attempt," U.S. v. Russell, 255 U.S. 138 (1921), no substitution of a word in a statute can evade the essential purpose of the law to regulate and punish wrongful CONDUCT. Accordingly, the Court later noted that an "endeavor" to commit a crime cannot be punished unless the endeavor has the "natural and probable effect" of bringing about the wrong that the law seeks to prohibit.

 

United States v. Aguilar, 515 U.S. 593 (1995).

 

Citation of authority;

 

In United States v. Aguilar, the defendant was convicted of endeavoring to obstruct the due administration of justice. The Court examined the relevant evidence admitted at trial to determine whether the evidence was sufficient to sustain the conviction. The Court, citing Pettibone v. United States, 148 U.S. 197 (1893) stated, "a person is not sufficiently charged with obstructing or impeding the due administration of justice in a court UNLESS it appears that he KNEW or had notice that justice was being administered by such court." A person lacking knowledge of a judicial proceeding lacks the evil intent to obstruct. Accordingly, the elements of "endeavoring" to obstruct the due administration of justice are 1) specific intent to obstruct a pending proceeding, and 2) an overt act that has the "natural and probable effect" of obstructing a pending proceeding.

The court stated;

 

 

"We have traditionally exercised RESTRAINT in assessing the REACH of a federal criminal statute, both out of deference to Congress [citation omitted], and out of concern that 'a fair warning should be given to the world in language that the common world will understand, of what the law intends to do IF A CERTAIN LINE is passed.'"

 

[Note: At common law, evidence of mere preparation to commit a crime was insufficient as a matter of law to constitute a criminal attempt. The CERTAIN LINE, where criminality would attach, was drawn at the point where the conduct came dangerously close to the commission of the actual crime.]

 

In Aguilar, the Court considered conduct that falls before or after that CERTAIN LINE. If the defendant had delivered his false statement directly to the grand jury, then he would be criminally liable for endeavoring to obstruct justice. However, defendant's conduct fell short of that CERTAIN LINE. Defendant delivered his false statement to a government agent who was not subpoenaed or otherwise directed to appear before the grand jury. It is far too speculative to determine whether his conduct would tend to obstruct justice. The Court stated, "We think it [defendant's conduct] cannot be said to have the 'natural and probable effect' of interfering with the due administration of justice.

 

In response to Scalia's dissent, the Court said:

 

"JUSTICE SCALIA'S dissent criticizes our treatment of the statutory language for reading the word 'endeavor' out of it, inasmuch as it excludes defendants who have an evil purpose but use means that would 'only unnaturally and improbably be sucessful.' This criticism is unwarranted. Our reading of the statute gives the term 'endeavor' a useful function to fulfill: it makes conduct punishable where the defendant acts with an INTENT TO OBSTRUCT justice, in in a manner that is LIKELY TO OBSTRUCT justice, but is foiled in some way."

 

In other words, the essential overt act element of the crime of "endeavor" (like the overt act element of the crime of attempt) must be an act that will LIKELY (naturally and probably) be successful (e.g., come dangerously close to the actual commission of the prohibited wrong) unless it is foiled in some way. Accordingly, unless the accused KNOWS that an actual pending proceeding--and unless the accused KNOWS that his false statements will in fact be delivered to an actual pending proceeding--it is improbable (impossible) for him to endeavor to obstruct the due administration of justice, and THUS, he is NOT CULPABLE.

 

I find the Aguilar case to be a PARADOX in many respects--and worthy of considerable discussion--but in final analysis, the fact remains that no matter how hard the legislature or the courts work to GET RID of the "technicalities" that allegedly plague the law of criminal attempt--those "technicalities" were developed at common law for a reason. Fundamental due process and the prohibition against cruel and unusual punishments does not allow the law to penalize an individual's thoughts or beliefs (or status) no matter how morally reprehensible those thoughts or beliefs (or status) may be. The law may only constitutionally prohibit and penalize harmful conduct--and conduct that has no likelihood of causing the harm that the law seeks to prohibit is NOT CULPABLE.

 

Accordingly, due to fundamental constitutional principles, the PROBABILTY or IMPROBABILITY (and thus POSSIBILITY and IMPOSSIBILITY) of success in committing the intended crime will ALWAYS be admissible evidence that is relevant to the culpability of the accused actor's CONDUCT with respect to the inchoate crime of attempt (and the synonymous inchoate crime of endeavor).

 

The Supreme Court is the final say and the Constitution will always rein supreme.

Edited April 26, 2007 by MarkESQ

[Raro]

Hey,

 

(I'm gonna mention several things that came to mind reading this. Forgive me for not citing sources, I forget where I came across most of this.)

 

In the last few years there's been a growing and powerful push to address the "internet/child/sex" issue. I've put the slashes in there because it's sometimes unclear if this issue is being more driven by people who are uncomfortable with the internet, sex, or children in general. (To quote an unrelated novel: "they have a word for people our age. They call us children and treat us like mice.")

 

There has been a ridiculous array of proposals for dealing with this "issue". I feel obliged to summarize a few just to emphasize how strange this campaign is.

 

Myr posted something on his blog about some proposed US law that would require sex offenders to federally register every internet avatar they use, and would require all entities involved in the internet to keep track of these people.

 

There was a law (recently struck down, I believe) that required "age verification" to view certain kinds of content online, with credit cards numbers the expected form of "proof". The upshot of this was a whole slew of websites being forced to demand a credit card number (that they promised not to charge to) before viewing the content. Of course, very few people would give a sex-related website their credit details, and this ended up as de facto censorship.

 

I've heard a few times about some government initiative to "document" all the child porn they can find. The stated reason? So that they can rescue the involved children. So, what does this mean in practical terms? We've got offices full of government employees whose jobs are to memorize child porn images all day, on the off chance that they'll encounter one of these kids in real life to "rescue" him or her...

 

And finally, there's this project on the internet to recruit volunteers to entrap "child predators". Their website (again, I forget the reference) proudly boasted that they have 30,000 volunteers who have helped out. Their methods are essentially anything that will work. Perhaps you start a conversation claiming to have just turned 18, then get the mark interested and committed, arrange a meeting, then right at the end act all tearful and say you're actually only 17 and really sensitive --suicidal?-- and you really hope this doesn't change anything... "can we still meet?". So the mark, perhaps now not intending anything more than comforting a presumably troubled teen gets busted for "crossing state lines with sexual intent towards a minor" (or however the wording goes).

 

Whether the accusation sticks or not, this ruins lives. As a somewhat personal example, I recently heard that one of my favorite teachers from middle school had been accused of doing something sexual with a student, perhaps 25 years previously. (The accusation was made in the wake of the US catholic priest sex abuse scandal. It was a sensitive issue.) So, many of the teachers at the school tried to help with his defense, he ended up selling his house when legal fees mounted. Ultimately it was settled out of court, very hush-hush, the school had itself to protect, and the guy was forced to leave the state.

 

In sum, all kinds of people --mostly innocent-- are being harassed because of a series of initiatives that don't seem to be having anything like their intended effect. Is child abuse an issue? Certainly; but child sex abuse is not the only form of child abuse, and possibly not even the worst. An alarming percentage of children are "slipping through the cracks", some with parents too concerned with their own problems to feed them, send them to school, or instill in them some sense of how they fit into society; some get caught up with drugs or violent crime through influencial siblings or friends; some get picked up by internet child sex rings.... Whoever finally picks up these children who "slipped through the cracks", pedophile or not, the outcome may not be pretty. But the problems for these children started long before they met the hypothetical pedophile, by a systemic failure of parents, friends, schools, social services, etc. to keep these kids from slipping through the cracks. Get rid of the pedaphile and he might be replaced by a drug dealer.

 

A big portion of the problem is that our society treats its children like mice --very very precious mice. No thought is given to how a well-adjusted, well-informed child would deal with a sexual predator. Instead of the current program of trying to identify the sexual intentions of adults worldwide, we could far more effectively help our children by removing the rigid taboos against making children sexually well-adjusted and well-informed, or more fundamentally, preventing children from falling through the nets that reasonable parenting and education hope to provide.

 

In short, let's not witch-hunt for predators; let's protect and nourish the "prey": our children.

 

Raro

Edited April 26, 2007 by Raro

[JamesSavik]

Back in the day, plain clothes cops could not sell drugs and then turn around and arrest a person for possessing drugs. It was called entrapment and its a cheap and easy way to make a lot of arrests and generate positive crime statistics that don't really mean anything.

 

In the drug war hoopla the law was changed and now instead of entrapment, they call it a buy bust.

 

In a similar manner, it wasn't legal for plain clothes cops to pose as prostitutes and then arrest Johns for proposition them. The law changed and now they call it a prostitution sting.

 

In both cases, the police provide enticement (drugs, sexy would be hookers) and opportunity, key elements of the crime.

 

Would a crime actually take place if the cops we're there? No drugs are waved under anyones nose, no sexy would-be hooker shakes their butt at some hungry mutt looking to score.

 

This is NOT good police work. All you end up doing is busting a lot of people for minor drug or soliciting charges and ruining marriages and lives. No drugs are off the street and hookers just change corners.

 

The Dateline NBC "To Catch A Predator" is the most crass type of sensationalism. Recently in my area the Perverted Justice people teamed up with the local DA and the TV news and caught about 20 people ages 20~45. None of the cases have gone to court yet. The DAs and Sheriff got a chance to be tough on crime in front of the camera.

 

My thoughts on this sort of thing are that it is doing something for mere perception of taking positive action. I seriously doubt that the majority of the idiots they catch are serious predators. Most appear to be garden variety dumbasses.

[Gandalf]

I spent my career as a child welfare worker and believe there are more than enough laws to deal with crimes of child abuse. I would point out that most abuse is by relatives or acquaintances and the stranger stuff is relatively small. As has been mentioned the political reasons for this tack have to do with abridgement of rights. Pedophiles are an easy target but who knows who is next. Martin Nieboler's quote about Germany in the 1930's is very appropriate to this political climate here in the US. Shit dont get me going that is why I have left my foster kids and other people I have raised to sail away from all this insanity. As I just said in another message.. I hope the next generation is much more successful than we were in sorting things out. Pax Steve SV Gandalf Sevilla Es.