Courts unwinding Chris Hansen style net sex sting convictions without actual victims

[astro]

Rulings target Internet sex stings - Appeals court says there must be an actual victim

Adults trying to hook up with teenyboppers is not acceptable, but on the other hand it seems a lot of these net “sex sting” convictions via IM messages with police (or non-police in several cases) is pushing the boundaries of entrapment.

[Fell_through_the_Ice]

@astro

Rulings target Internet sex stings - Appeals court says there must be an actual victim

Adults trying to hook up with teenyboppers is not acceptable, but on the other hand it seems a lot of these net “sex sting” convictions via IM messages with police (or non-police in several cases) is pushing the boundaries of entrapment.

It’s not due to “entrapment”, it’s because there is no actual victim.

[Amp]

So now, are cops going to actually start hiring underage kids to sit and chat with these pervs so that there can be an actual victim?

[Jack_Batty]

I always thought that seemed a little odd. How could there be conspiracy to do something to someone who doesn’t exist?

[Giles]

@Amp

So now, are cops going to actually start hiring underage kids to sit and chat with these pervs so that there can be an actual victim?

Conceivably there would be ethical and legal issues with that, too.

I suspect that the proper course is to find actual victims, or near victims, who are lured independent of police action.

And I have a suggestion for improving statistics on convictions for theft: the police should scatter around apparently valuable objects, keep such objects under surveillance, and pounce on anyone who picks up and walks off with said objects. For example, leave some nice cars unlocked in bad neighbourhoods, to trap car thieves. Why wouldn’t that work?

[DigitalC]

Sucks for the people who commited suicide when they got caught by this type of sting.

[Amp]

@Giles

And I have a suggestion for improving statistics on convictions for theft: the police should scatter around apparently valuable objects, keep such objects under surveillance, and pounce on anyone who picks up and walks off with said objects. For example, leave some nice cars unlocked in bad neighbourhoods, to trap car thieves. Why wouldn’t that work?

They do that already. Have you ever heard of Bait Car?

[ZebraShaSha]

@Amp

They do that already. Have you ever heard of Bait Car?

Not to mention bicycles. I saw this great Cops episode where they propped up a bike in the center of the worst part of town late at night. Suspect comes, gets on bike, everyone swarms, person goes to jail. It only took about 30 seconds after propping up the bike that someone would try to take it. Kind of sad, on part of the officers, though.

[Rand_Rover]

One thing to keep in mind here is that the rulings hold that an actual victim is required only for certain offenses. They can still generally charge the guy with lesser offenses.

[Gfactor]

These cases usually turn not on a broad principle of criminal liability, but on statutory interpretation. The federal appellate courts have come out the opposite way. Here is a thread: What crime were the “To catch a predator” subjects committing?

Many of those acquitted under Indiana law could probably be charged under the federal statute.

[Gfactor]

Here are the cases discussed in the OP’s article:

http://www.in.gov/judiciary/opinions/pdf/07110803lmb.pdf
http://www.ai.org/judiciary/opinions/pdf/12310801nhv.pdf

[Odesio]

@DigitalC

Sucks for the people who commited suicide when they got caught by this type of sting.

Any sympathy I feel for them is mitigated by the fact that they were trying to contact minors for the purpose of having sex with them.  Not that I'm a big fan of the stings.

[JRDelirious]

Y’know, one would have thought that the crime of solicitation of a minor would by itself be good (bad) enough, specially when you have the suspect nailed down absolutely – and which only requires that the suspect believe there’s a minor involved (and which charges in this case DO still stand). But no, the prosecutor had to go for “attempted sexual assault”, which is the one that requires an actual victim. Different crime, different elements.

And Jack Batty, IANAL but I think that for “conspiracy” the crime is the conspiring itself, not the ultimate result.

Actually, nobody should feel relieved here: unless and until the moral panic subsides, a likely result of this sort of decision is for the legislature to rewrite the statutes to either (a) extend to sexual assault the provision that it suffices that the suspect believe there is a minor involved, whether the belief is true or not, or (b) ratchet up the criminal category and punishment for “mere” solicitation to a higher degree.

[Gfactor]

I note both appellate (majority) opinions fail to analyze an important statute:

Sec. 1. (a) A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same class as the crime attempted. However, an attempt to commit murder is a Class A felony.

(b) It is no defense that, because of a misapprehension of the circumstances, it would have been impossible for the accused person to commit the crime attempted.

Indiana General Assembly

The dissent in *Gibbs * recognizes that this statute rejects factual impossibility as a defense, which, IMO kills the whole argument:

The majority, agreeing with Aplin, views the difference between the sexual misconduct with a minor statute and the child solicitation statute as a policy decision by the General Assembly not to penalize a person for attempting to engage in sexual misconduct with someone who is not a minor. However, the attempt statute applies to all offenses except crimes of recklessness, Anthony v. State, 409 N.E.2d 632, 636 (Ind. 1980), and that statute provides that impossibility is not a defense. Ind. Code § 35-41-5-1(b).[sup]2[/sup] It is clear that section (b) of our statute rejects the defense of impossibility. It is not necessary that there be a present ability to complete the crime, nor is it necessary that the crime be factually possible. When the defendant has done all that he believes necessary to cause the particular result, regardless of what is actually possible under existing circumstances, he has committed an attempt. The liability of the defendant turns on his purpose as manifested through his conduct. If the defendant‟s conduct, in light of all the relevant facts involved, constitutes a substantial step toward the commission of the crime and is done with the necessary specific intent, then the defendant has committed an attempt.
Previous Indiana cases have sometimes narrowly interpreted an attempt as conduct “„which will apparently result in the crime, unless interrupted by circumstances independent of the doer‟s will.‟” However, the new statute shows that this interpretation focusing on the result of the conduct is no longer applicable and that the law now focuses on the substantial step that the defendant has completed, not on what was left undone. Zickefoose v. State, 388 N.E.2d 507, 510 (Ind. Ct. App. 1979) (emphasis added and citations omitted). Gibbs intended to have sex with a fifteen-year-old. He did all he believed was necessary to complete the offense of sexual misconduct of a minor, and he failed to complete the offense only because it was not possible under the circumstances.

---

[sup]2[/sup] The majority does not acknowledge the abrogation of the impossibility defense in Ind. Code § 35-41-5-1(b). Aplin mentioned it in a footnote: The State alleged that Aplin attempted to engage in sexual conduct with a specified adult, not that Aplin attempted to engage in sexual misconduct with a child but that it was impossible to do so because of his misapprehension of the circumstances. It is no defense that, because of misapprehension of the circumstances, it would have been impossible for the accused to commit the crime attempted. Ind. Code § 35-41-5-1(b). 889 N.E.2d 882, 884 n.4 (Ind. Ct. App. 2008), reh’g denied. Thus, Aplin appears to acknowledge that impossibility is not a defense, but faults the State for the language of the charging instrument. However, any time a defendant fails to complete an offense because it is impossible, the State will be unable to allege facts that would ordinarily constitute an offense. “[T]he purpose of a charging instrument is to provide a defendant with notice of the crime of which he is charged so that he is able to prepare a defense.” Brown v. State, 830 N.E.2d 956, 963 (Ind. Ct. App. 2005). The Aplin panel did not suggest the wording used by the State failed to apprise Aplin of the charges against him.

Indiana Judicial Branch: Appellate Decisions

[astro]

@Odesio

Any sympathy I feel for them is mitigated by the fact that they were trying to contact minors for the purpose of having sex with them. Not that I’m a big fan of the stings.

Yeah but what disturbs me a bit is that in a number of these scenarios the incipient pervs were surfing sites where young teens congregate to chat, and it’s my understanding (I haven’t read the actual dialogs) that the IMing officers were not being coy in the least, and were actually aggressively pursuing some of these guys via increasingly and directly sexual come ons if they (the pervs) began to back off to get them to make a commitment to meet.

Adult men pursuing, and enticing young female teens to have sex is disturbing, but the flip side is (and I didn’t realize thisuntil I addressed a post about it,) is that apparently there are a number of surprisingly young teen girls who are quite sexual (ie horny) and *want *older male attention.

I’m not going to say this is like shooting fish in a barrel perp wise, but it’s pretty damn close re almost re almost manufacturing a crime. There are an almost endless supply of stupid, horny men willing to believe that some teenager finds them absolutely fascinating. I would rather these men not be bothering teenagers but I’m not sure this is an entirely ethical approach even if they are perverts.

[Gfactor]

@JRDelirious

Actually, nobody should feel relieved here: unless and until the moral panic subsides, a likely result of this sort of decision is for the legislature to rewrite the statutes to either (a) extend to sexual assault the provision that it suffices that the suspect believe there is a minor involved, whether the belief is true or not, or (b) ratchet up the criminal category and punishment for “mere” solicitation to a higher degree.

These decisions are from the Indiana Court of Appeals. The Indiana Supreme Court still has a shot at getting it right in the *Gibbs *case or a subsequent one.

[Odesio]

@astro

Yeah but what disturbs me a bit is that in a number of these scenarios the incipient pervs were surfing sites where young teens congregate to chat, and it’s my understanding (I haven’t read the actual dialogs) that the IMing officers were not being coy in the least, and were actually aggressively pursuing some of these guys via increasingly and directly sexual come ons if they (the pervs) began to back off to get them to make a commitment to meet.

I understand where you’re coming from. I’m against the three strikes laws but, and this might sound strange, I’m not really all that sympathetic to most of those who end up being sent to jail for long periods of time for getting their third strike. I don’t care how direct these “teens” are it doesn’t conjure up any sympathy on my part.

Odesio

[sqweels]

@Odesio

Any sympathy I feel for them is mitigated by the fact that they were trying to contact minors for the purpose of having sex with them. Not that I’m a big fan of the stings.

My question is, are these guys given an opportunity to have sex with an adult woman and they passed it up because they’d rather have sex with a minor? Or is the apparent minor the only female who would give them the time of day?

[Jack_Batty]

@JRDelirious

And Jack Batty, IANAL but I think that for “conspiracy” the crime is the conspiring itself, not the ultimate result.

Yeah, I get that, but the only conspiracy is in the pervert’s head, until Perverted Justice gives him the opportunity to conspire with someone else.

To tie in the bait-car thing … it seems to me it would be almost like instead of a bait car, there is a sign three blocks away that says “Unlocked Car! Quick! Steal it!” and then when someone shows up, there’s an empty parking lot and a cop accusing him of wanting to steal a car that’s not there.

[tumbleddown]

@sqweels

My question is, are these guys given an opportunity to have sex with an adult woman and they passed it up because they’d rather have sex with a minor? Or is the apparent minor the only female who would give them the time of day?

That’s what I wondered myself. Had an appropriate-aged person been available to keep these guys from starting the conversation with the “girl” in the first place, willing to engage in conversation herself, would they have gone after the girl instead?

I mean, no question that they crossed a very bright line when they went to the houses, but it’s very “Sliding Doors” territory for me.

I also question “attempted sexual assault” for anyone other than the guys who came in and stripped off. I mean, even if the invitation was explicit “come over to my house and we will have sex” simply being in the house doesn’t mean that the guys would have had sex. If a real 15 year old had walked out of the back room and said “hi, here I am, screw me” and they had a pang of conscience and said “hmm, no, let’s sit and talk” and then extricated themselves and left before sex occurred, is it attempted assault just because they were there with a plan if the plan doesn’t come to fruition and no physical overtures are made?