An Adult Pretending To Be a Child Is Still an Adult

By TChris, Section Court Decisions
Posted on Sun Jan 04, 2009 at 10:42:49 PM EST
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A troubling trend that vexes those of us who believe the police should prevent or solve crimes, not manufacture them, is the detective sitting in a chat room posing as a 15 year old waiting to engage in salacious conversation with an adult. Courts have typically held that an adult who travels to meet the "15 year old" for a sexual encounter can be charged with attempted sexual assault of a minor, even though the defendant never chatted with a minor and no actual minor was ever at risk.

The Indiana Court of Appeals recently bucked that trend.

The court has ruled that two types of felony charges police had been using against sexual predators accused of luring underage victims via Internet "chat rooms" can't be leveled when the person at the other end of a "chat" is an undercover police officer, and not an actual child, The Indianapolis Star reported Sunday.

[more ...]

The dismissal of a charge of attempted sexual misconduct with a minor -- a Class B felony -- against a Shelbyville, Ind., man last week could mean new Internet child sex cases will lead to lighter sentences, prosecutors said.

"Lighter sentences" are appropriate when a chat room occupant makes a date with an adult police detective, not with a child. The law should recognize a distinction between attempted crimes that endanger real people and attempted crimes that are invited by the police.

[P]rosecutors are now relying on child solicitation charges, a Class C felony charge that applies as long as the defendant merely believes the intended victim is at least 14 and younger than 16.

Whether a mistaken belief about a chatter's age (when the belief is induced by a lying law enforcement officer) should lead to any form of criminal liability is questionable. Putting that question aside, it is reasonable to recognize, as Indiana now does (at least until the legislature closes this "loophole"), that people who don't put a child at risk deserve greater leniency than those who do.

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An Adult Pretending To Be a Child Is Still an Adult | 49 comments (49 topical)

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Brilliant (5.00 / 2) (#1)
by blogtopus on Sun Jan 04, 2009 at 10:53:27 PM EST

That's great to hear. Some actual LOGIC being used in our justice system.

Not that these guys should be let completely off the hook, but you're right; there's a difference between wanting to sleep with children, and people, you know, ACTUALLY SLEEPING WITH CHILDREN.

Correct (5.00 / 2) (#6)
by Steve M on Sun Jan 04, 2009 at 11:07:36 PM EST

and that's reflected in the difference between attempting to commit a crime and actually committing a crime. Note that this post discusses people being charged with "attempt."

While courts and juries need to remain vigilant regarding entrapment situations, generally speaking it's black-letter law that factual impossibility is not a barrier to a charge of attempt, and that seems right to me.


: The reason I agree is that (none / 0) (#19)
by eric on Mon Jan 05, 2009 at 07:12:08 AM EST

one need not get to factual impossibility to come to this decision. The Court seems to be saying, sure, this guy attempted to solicit sex with a minor, but no, he did not attempt to actually have sex with a minor. Both are factually impossible but one is simply too attenuated from the actual behavior of the defendant.

: Probably a distinction without a difference (none / 0) (#26)
by atlanta lawyer on Mon Jan 05, 2009 at 10:36:59 AM EST

In many states, with regard to sex crimes against children, legislatures have eliminated the sentencing difference b/t inchoate and choate crimes. (I.e. attempt or solicitation vs. completed crime.) In fact, an attempt or solicitation is defined as the crime itself, so you have the rather interesting issue of have a a double inchoate crime, like an attempted soliciation, or attempted attempt. I think it's the logic of that that offends many TL commentators. While it can certainly be done poorly, and entrapment is always possible, I can't see the argumrent that categorically, crime prevention is not, or cannot happen with these internet stings.

Good news, and the flip side (5.00 / 1) (#2)
by ThatOneVoter on Sun Jan 04, 2009 at 11:02:42 PM EST

of the standard which says that being mistaken about a minor's age is no excuse, under the law.
I hate the show "to catch a predator". Ugh.

So do I. I despise it. It gives me the (5.00 / 1) (#9)
by Teresa on Sun Jan 04, 2009 at 11:35:56 PM EST

creeps from both viewpoints.


I despise entrapment. Whether (5.00 / 4) (#11)
by Cream City on Mon Jan 05, 2009 at 12:25:05 AM EST

it's by the law-and-order system, in a classroom, in a personal relationship, whatever. It's dishonest, despicable, and evil.


: I strongly feel (5.00 / 2) (#14)
by JamesTX on Mon Jan 05, 2009 at 12:57:13 AM EST

that way, too. Entrapment has become one of the major tools in the police arsenal over my adult lifetime. When I was young, it was still illegal, and everyone knew why. When I try to reason with conservatives about it, I get nowhere, though. Evidently, it represents some kind of fundamental difference among people in moral philosophy.
Whenever I am trying to get you to do something, and you eventually do it, then I have problems with the idea that you were acting on your own volition. The "opportunity" argument doesn't cut it with me. The key to human behavior is circumstances, and circumstances can be manipulated to cause most people to do very unusual things that they otherwise would not do. When those circumstances are manipulated by the government, with all its resources and all its knowledge about behavior, then the "target" is not really in control of their own behavior, at least not enough so to be completely responsible. It is bad, bad idea.
Belief in entrapment as a fair method seems to resonate well with those who also believe that privacy is not important. You know who I am talking about -- those people who say "if you are not doing anything wrong, then you have nothing to worry about if the government violates your privacy".

That show was upsetting on so many levels (none / 0) (#24)
by Inspector Gadget on Mon Jan 05, 2009 at 10:25:51 AM EST

I saw a portion of the first episode and immediately wrote to NBC that I would never watch Dateline again after their lure and trap approach to entertainment. So, they practically made it a series on MSNBC and showed trailers of men on the ground being restrained by police officers.

Not once do I recall them putting on a trailer, or during their periodic interviews (Chris something thought he was some national hero), saying they had caught someone who had a record, or because of the person being on TV previous victims came forward to identify him as the man who lured them.

They went looking for men who the Adult "teen" could engage and lure easily. So easily, in fact, that the predator side was more aptly put on the "teen".

The entertainment aspect was apparently supposed to come from publicly humiliating the men they were successful at luring into their setup.


: Here's an unlikely but possible scenario (none / 0) (#27)
by blogtopus on Mon Jan 05, 2009 at 10:38:17 AM EST

How about some guy is surfing the sex forums, sees this person claiming to be underage and 'wanting it', and decides to find out who this is and contact his/her parents?
What happens when this guy comes to the house? Here's something, what happens if this guy comes to the house with his wife? Would he still be arrested? What if he told his friends and family what he is doing, writes it down in black and white, and then proceeds to the house with a friend who happens to be a cop?
All these are funny questions, but as I said, highly unlikely scenarios. But the truth is a good samaritan would have to be EXTREMELY careful in this situation, which shows just how damaging and wrong this kind of sting operation is.

Let us not jump for joy yet (5.00 / 1) (#4)
by downtownted on Sun Jan 04, 2009 at 11:05:11 PM EST

Wait for the results of the rehearing (or whatever they call it in Indiana)
Wait to see if the Indiana Supreme Court follows or overturns.
Wait to see if any other Appellate Court follows

But this is amazing

Never been a fan (5.00 / 1) (#5)
by CoralGables on Sun Jan 04, 2009 at 11:06:06 PM EST

of entrapment although it seems to be standard operating procedure in many areas of law enforcement.

I read something (5.00 / 1) (#7)
by JamesTX on Sun Jan 04, 2009 at 11:12:34 PM EST

really frightening about this new vigilante hobby (catching "internet predators"). In some cases, they can arrest the person for simply going to the general location where the alleged bait is located. The obvious caveat here is that with all the cooked tech testimony that has been uncovered in computer crime investigation, a person could actually be convicted for simply driving somewhere. That is, they don't even have to go to the bait house. They just have to drive to the general vicinity -- such as the city or town -- where the trap was allegedly laid. This means that everything could be completely fabricated in "cyberspace", and then the person simply arrested for driving to a general location. In Texas, since juries convict regardless of evidence, this could turn out to be the perfect way to convict innocent people.

The setup artists (they are many times not the police, but vigilante computer groups that get off on the sting concept) would only have to predict the general area to which the target is going to drive, create the internet files, and you can stick a fork in 'em.

There are too many inconsistencies in the internet predator sting business. It has never made any sense to me.

My view on the matter is (5.00 / 1) (#8)
by ThatOneVoter on Sun Jan 04, 2009 at 11:22:29 PM EST

extremely unpopular, but I think a large part of the problem is the age of consent laws. They are irrational and arbitrary. There are plenty of civilized countries where 15 is the age of consent. Making 18 the age of consent fights nature and common sense.


I agree entirely. (none / 0) (#13)
by JamesTX on Mon Jan 05, 2009 at 12:39:27 AM EST

It may be necessary to have normative age definitions for life's legal milestones, but the laws based on those definitions should not be of the life-and-death sort that they are now. We are defying reason when we unconditionally tie such incredible outcomes as carried by conviction under current laws to an age cutoff that everyone knows is only a "best estimate" or "rough guideline" or "average", and that everyone knows varies widely by culture and individual. But then, nothing in the conservative social philosophy has ever been remotely reasonable. Why should I expect it now?

The important thing is that you should be able to bring up and talk about this topic without getting bashed. That is called free speech (it's a forgotten concept that existed before Reagan). The conservative plan is that we are all now supposed to attack you, call you a "pedophile", and make sure your fate is such that everyone knows such topics are not to be discussed. You are supposed to feel like you have done something horribly wrong and repulsive for even suggesting such ideas. The first thing we need to do is dismantle that norm so that the issues can even be analyzed.

Your point brings up some very serious issues about how adults baiting people in chatrooms serve as a logical/legal proxy for a "child". The idea here is that the target believes the adult is a child, so the adult is serving as a proxy for the child. The problem is, if the adult does not behave like a child, then it is not logical to conclude that the target believed he was dealing with a child. Some of the transcripts I have seen involve a level of seductive skill and romantic acumen on the part of that "child" that is not at all characteristic of a person under 18. The "child" (which is not a child to begin with) is behaving like an adult, using adult psychological seduction skills. The only evidence to the contrary is some isolated statement about age, but sexual banter and romantic play often involve making false statements and using language in very symbolic and metaphorical ways. I think it might be hard to actually prove (that is, prove to anyone who has enough wisdom to care) in some of these cases that the target actually believed the bait was under age. Romantic banter often involves "playful lies". There are some very serious problems with all of this, and our justice system is very sick for entertaining this crap. Something needs to be done.


Absolutely... (none / 0) (#29)
by kdog on Mon Jan 05, 2009 at 12:22:48 PM EST

like any and all laws that do not jive with mother nature and the will of the people, they will case nothing but headaches and problems.

Of course, it is understandable that we wish to prolong the innocence of childhood, but we don't make the rules of nature. If you are sexually mature at 15, that should be the age of consent, as creepy as it may make us feel at times.


Desire Should Be The Arbiter of Law? (none / 0) (#30)
by squeaky on Mon Jan 05, 2009 at 12:29:26 PM EST

So should a six year old be allowed to drive and own a gun, certainly the desire and motor skill are in place at six, no?


No... (none / 0) (#31)
by kdog on Mon Jan 05, 2009 at 12:45:36 PM EST

but a little common sense and acceptance of the natural world we live in wouldn't hurt squeaky.

Even the puritans were marrying and copulating before 17...because nature dictated as much. Sex is not man-made like cars and guns.

I see what you're getting at....desire cannot be the sole arbiter, but natural law and the will of free people must be a consideration. Sometimes it feels like not only are natural law and the will of the people not given due consideration, they are ignored all together. Drug laws and immigration laws come to mind...as well as some sex laws.


Don't Get Me Wrong (none / 0) (#32)
by squeaky on Mon Jan 05, 2009 at 01:03:18 PM EST

I think that age of consent is generally too high but it gets murky when you start bring in issues about the 'natural world'.

If all things were equal, mostly having to do with homogeneous society which we do not have, there should be no reason that a six year old should not be able to drive, shoot a gun, drink and smoke, and explore their sexual feelings.

But we are faaaaaaaar away from that kind of homogeneous society and far away from a shared view of what the natural world is. So there are laws, which are often unjust but in many cases some sort of compromise we get in the tradeoff for having a diverse society rather than homogeneous.


And (none / 0) (#33)
by squeaky on Mon Jan 05, 2009 at 01:05:05 PM EST

Don't forget that guns are an extension of 'arms' and in that context quite as natural as the body parts used in sex.


I hear ya... (none / 0) (#34)
by kdog on Mon Jan 05, 2009 at 01:23:46 PM EST

if was all cut and dried and simple we wouldn't be here debating...I sure as hell don't have answers, only questions.

I am confident that adults posing as minors to coax adults into meeting with minors who in actuality are not minors is not kosher. Lets protect the kids and the teens from the creeps in such a way that isn't a slap in the face to liberty and free thought in a supposed free society.


Sounds good, initially, but I'm not so sure... (none / 0) (#36)
by sarcastic unnamed one on Mon Jan 05, 2009 at 01:49:40 PM EST

I think there's a pretty dramatic line between entrapping someone and arresting an adult who's attempting to entice/pressure a "tween," for example, into having sex with the adult.


Sounds they're working (5.00 / 1) (#37)
by jondee on Mon Jan 05, 2009 at 02:07:43 PM EST

just as hard to create a market for abberants as they are working to aprehend them.


: Hey (none / 0) (#39)
by squeaky on Mon Jan 05, 2009 at 02:11:57 PM EST

They teach some business at police academy, these guys are looking out to expand the market.

Agree (none / 0) (#38)
by squeaky on Mon Jan 05, 2009 at 02:10:36 PM EST

A line is crossed where actions are irrelevant but mind reading is prevalent. Not too far from thought crime prosecution. We have seen this already where fictional writing is cause for arrest.


: I tend to look at... (none / 0) (#41)
by kdog on Mon Jan 05, 2009 at 02:24:31 PM EST

real-deal pedophilia as a sickness...and if the sick are able to control these urges, or limit it to just fantasy...they should be allowed to live a free life. When they lay a hand on a child, throw the book at them hard.
The authorities sure as hell shouldn't be trying to coax them into acting on their sickness.
And I make a distinction between real-deal pedophilia...sexual attraction to the pre-pubescent...and an attraction to fully developed teens, which is creepy but not all together unnatural. I know I might see an attractive female walking down the street, and upon doing a double-take realize she may be only 15. I scold myself for being a dirty old man and leave at that...but the initial attraction is a natural reaction to a fully formed member of the opposite sex. The authorities shouldn't be exploiting that naturally occuring grey area to score a bust via entrapment...I don't think that serves anybody.

A real tragedy..... (5.00 / 3) (#12)
by NYShooter on Mon Jan 05, 2009 at 12:25:27 AM EST

In upstate NY, a gentleman was elected mayor of a totally depressed, and financially devastated small city. By all accounts, he began performing miracles, and, not to belabor the point, the city began enjoying a remarkable turnaround. He was a "Natural," bringing everybody together, and for the first time in decades, all the good indicators were pointing up, while the bad ones (crime, homelessness, unemployment, etc.) were pointing down.

Then, one day, the headlines splashed across the front pages, "MAYOR ARRESTED."

It seems this mayor, who had never been arrested, and who had a story book family life, without so much as a hint of any extra marital dalliances, succumbed to a police "decoy" on his evening walk home. Now, mind you, SHE solicited him; she was not just standing on a corner looking provocative, and waiting to be hit on. She was a pro, a knockout, and had been to all the schools to learn how to "get your man."

So now we have a crime, and a criminal, where no crime would have been committed sans the police department's elaborate entrapment scheme. We have a devastated family, a heart broken city, and a miscarriage of justice that shocks the conscience of any fair minded person.

Please spare me the but, but, buts. No one knows what one would do when placed into a situation one would never have voluntarily entered. Just show me what benefit was served by this insidious police waste of time and recources.

: Same story happened here (5.00 / 2) (#15)
by Cream City on Mon Jan 05, 2009 at 01:06:44 AM EST

to a college president, a fine man with a great career ahead of him, for whom I worked. He was driving to his wife's workplace to pick her up at the end of the day. He saw a young woman flagging him down, thought she was in trouble, pulled over -- and ended up in a confusing conversation that ended up with him arrested.
The judge eventually tossed it out but decided to use it to blast the cops about entrapment, so it got headlines and was spread across the state press -- and the career of the youngest college president in the history of my state was at a stop. He had been before Congress testifying, he was expected to be on his way to a post in the Dept of Education in D.C., etc., but instead, he stayed at the college (fighting back against a faculty rebellion, etc.) for decades until retirement. The college was a success story.
But the humiliation for him, his fine wife and family was awful to watch -- and the cost to the college, the students, perhaps the country, who knows? That's why I despise entrapment . . . and cops and judges more interested in their careers than those of the presumably innocent people before them.

Entrapment is still entrapment. (5.00 / 1) (#20)
by SeeEmDee on Mon Jan 05, 2009 at 07:24:57 AM EST

A couple years ago I had been in a drug law reform chat room, discussing finer points of law and assisting other members with tech problems, when a strange moniker showed up and immediately announced "I am a fourteen year old girl with blond hair and blue eyes."

The alarm bells immediately went off, as the site welcomes all, but for drug law discussions...and very little else. Like everyone else on the chat, I ignored the newcomer...who, when 'she' didn't get any response, repeated 'her' announcement again, verbatim. I suspected a cop online, but said nothing. Neither did anyone else.

The newcomer, when it was obvious there would be no 'bites' in this 'fishing expedition', departed quickly. Weeks later it was announced that another Internet 'sting' operation aimed at pedophiles had been underway and had caught some people.

What incensed me was the idea that some cop thought he'd have an easy collar by trolling a drug law reform group's Webchat...as if one a priori had to be a perv to be a drug law reformer. That's the kind of thinking that those who are seeking to change the drug laws of this country have to face...

: I would have been upset (none / 0) (#21)
by Fabian on Mon Jan 05, 2009 at 07:32:33 AM EST

that my tax dollars couldn't pay for a more sophisticated troller than that.
Then again...anyone who fell for something that clumsy and blatant doesn't have my sympathy.

: The MAP chatroom? (none / 0) (#52)
by Ben Masel on Wed Jan 07, 2009 at 02:33:29 AM EST

As I recall, I responded "This is a cop. There are no REAL 14 year olds on the net."

The idea (5.00 / 1) (#35)
by OldCity on Mon Jan 05, 2009 at 01:29:19 PM EST

that an adult experessing intrerest in carnal relations is somehow susceptible to a "trap" is a little tough to swallow. They are seeking to engage in an activity they know is illegal. Even if they are just looking for titillation, they're still in the wrong.

I agree that entrapment is not a good thing, but then again, I also don't think adults should be engaging in certain activities with children or seeking to, any more than I agree that public officials should accept bribes. I haven't heard the same hue and cry over the recent arrests in Boston of public officials taking bribes.

As for the folks debating "natural law", ask a pediatrician about the decision making abilities of a young teenager...their ability to discern. Take a look at history and the trreatment of women up until 30 years ago. Maybe explore the average life expectancy of the Puritans...And, if you're really into natural law, perhaps you should examine how our ancestors treated other "natural" human anomolies, like homosexuals, homaphrodites, or even albinos.

I'm not sympathetic to adults that want to have sex with kids. Let's not delude ourselves into thinking that innocent parties are being harmed, here. The innocents that are, are outliers in the extreme.

I don't agree. (none / 0) (#40)
by ThatOneVoter on Mon Jan 05, 2009 at 02:15:59 PM EST

It's perfectly natural for a 15 year old to want to have sex with someone who is 21---a crime which could result in many years in prison in some states.
IIRC, Will Durant married Ariel when he was around 30 and she was 15.
I don't understand your 3rd paragraph at all.
Don't you have it backwards? There's an implicit sexism in your examples, as well. What about under age males, esp. gay ones?
What goes against biology is the notion that homo sapiens under the age of 18 cannot have sex---especially if they are female.


I'm not sure anyone's saying (none / 0) (#42)
by sarcastic unnamed one on Mon Jan 05, 2009 at 02:27:23 PM EST

U-18s cannot/should not have sex, I think they're saying kids can be/are vulnerable to being pressured into having sex with adults by adults and that we as a society should try to reasonably protect our kids from this.

At least, that's pretty much what I got out of it...


Pretty close (5.00 / 1) (#45)
by OldCity on Mon Jan 05, 2009 at 04:58:17 PM EST

Kids of either orientation make bad decisions. I'd argue, actually, that gay boys make the worst decisions in that regard and are exploited more often because of the social prohibitions surrounding their orientation. People are coming to accept gay adults, but no gay kids, like it or not.

The reason I wrote about girls initially is because the laws were written with them in mind. I can pretty much guarantee that had Will Durant gone after my 15 year old daughter he absolutely would have needed a stenographer. and a good dentist. Honestly, if anyone has met a 15 year old girl recently, you wouldn't laud the maturity of their decision making. Sheer physical ability to participate in the act in no way qualifies a kid to actually engage in it. At 15 I wanted to be a rock star...now I'm a consultant. but the meme here is that at 15 I was fully capable of having sex and could have with a willing 22 year old. So, how much do you think an incompletely educated kid could have contributed to the subsequent issue of that relationship? A kid in this society taking care of a family? Get real.


Yep. (none / 0) (#46)
by sarcastic unnamed one on Mon Jan 05, 2009 at 05:05:40 PM EST

Recently my neighbor read her 8th grade/14 y/o daughter's email and found out she was planning on meeting a HS Sr. for a "date."

The daughter wrote to her friends that she hoped all she'd have to do is give him a BJ.

Just the fact that he was 18 y/o put pressure on her...and that all her girl friends knew about the "date."


The reason gay kids will search out (none / 0) (#47)
by ThatOneVoter on Mon Jan 05, 2009 at 05:34:07 PM EST

older people sometimes is that they can make approaches without being beaten up. I think that kind of thinking shows sensible decision making, personally.


Interesting. (5.00 / 1) (#48)
by sarcastic unnamed one on Mon Jan 05, 2009 at 05:36:40 PM EST

I'm not gay but the approaches I personally experienced as a child were from the adult to the child, not the other way around...


: It's quite common for gay (none / 0) (#50)
by ThatOneVoter on Mon Jan 05, 2009 at 06:53:21 PM EST

teenagers to seek out older guys. Obviously the reverse happens too. I don't know this from direct experience, but lots of gay friends have told me this is what they did when they were younger.

Interesting (none / 0) (#17)
by ericinatl on Mon Jan 05, 2009 at 07:07:33 AM EST

I handled a number of these types of cases when I worked as a staff attorney for a federal circuit case (we did all the criminal cases, as well as some other cases). The entrapment aspect always bothered me - I couldn't quite see how there was a crime if there was no child involved - though generally the defendants did have some sort of intent.

Unfortunately, the federal law seems to be pretty settled in this area, and these types of prosecutions may go under federal statutes if state laws are seen as "too lenient."

: federal circuit case = federal circuit court (none / 0) (#18)
by ericinatl on Mon Jan 05, 2009 at 07:09:22 AM EST

I hate Mondays.

sorry to bust your bubbles guys, (none / 0) (#22)
by cpinva on Mon Jan 05, 2009 at 08:30:26 AM EST

but too much cash is at stake, for any reform of either law enforcement, the legislature or the judiciary.

all have a vested financial interest in maintaining the status quo, with us, the taxpayer, footing the bill. given the proper incentives, our legislators will busily create more crimes, via statute. it's good for bidness!