# What crime were the "To catch a predator" subjects committing? **URL:** \ **Category:** Factual Questions\ **Created:** [December 10, 2008, 12:35am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476 "2008-12-10T00:35:49Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Polerius](https://avatars.discourse-cdn.com/v4/letter/p/d78d45/32.png) [@Polerius](https://boards.straightdope.com/u/Polerius)\ **Post date:** [December 10, 2008, 12:35am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/1 "2008-12-10T00:35:49Z")
Over in [this thread](http://boards.straightdope.com/sdmb/showthread.php?t=496627&page=2) **Bricker** says [QUOTE=Bricker] You understand that the “Dateline”-profiled folks are committing a crime when they reply to a 47-year-old sheriff’s deputy online and tell him, “Yes, I’d love to teach you to suck cock,” right? [/QUOTE] I’m curious: What exact crime did they commit? Is there a law that says that you can’t talk dirty to people whom _you think_ are underage, even if they aren’t? If you have sex with a girl whom _you think_ is 16, but is actually 20, are you committing a crime? What are the applicable laws? ---
**Author:** ![dolphinboy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dolphinboy/32/330_2.png) [@dolphinboy](https://boards.straightdope.com/u/dolphinboy)\ **Post date:** [December 10, 2008, 12:39am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/2 "2008-12-10T00:39:23Z")
IANAL, but I’m pretty sure that soliciting sex over the phone with a presumed minor is a crime in most states… ---
**Author:** ![Rigamarole](https://avatars.discourse-cdn.com/v4/letter/r/77aa72/32.png) [@Rigamarole](https://boards.straightdope.com/u/Rigamarole)\ **Post date:** [December 10, 2008, 12:41am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/3 "2008-12-10T00:41:17Z")
What I always wondered is if it was a 13-year old claiming they were 18, would it be a crime then? ---
**Author:** ![JRDelirious](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jrdelirious/32/9531_2.png) [@JRDelirious](https://boards.straightdope.com/u/JRDelirious)\ **Post date:** [December 10, 2008, 1:08am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/4 "2008-12-10T01:08:09Z")
> [@dolphinboy](#): > > IANAL, but I’m pretty sure that soliciting sex over the phone with a presumed minor is a crime in most states… Right, plus a large number fo states over the last few years, after the rise of the 'net, have further refined their relevant statutes so that the conduct incurred by the TCAP subjects is **itself** explicitly defined as an offense. IIUIC with these statutes all that is needed is that the express communication made for the record be about one of the parties being a minor, regardless of that party’s real identity/age. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [December 10, 2008, 1:13am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/5 "2008-12-10T01:13:13Z")
There’s a family of crimes referred to as “specific intent” crimes, comission of which does not require the possibility that actual criminal act occurred. For example, if you hold up a bank with a toy gun, but you _believe_ it’s a real gun, you can still be charged with armed robbery in many jurisdictions. ---
**Author:** ![seodoa](https://avatars.discourse-cdn.com/v4/letter/s/4af34b/32.png) [@seodoa](https://boards.straightdope.com/u/seodoa)\ **Post date:** [December 10, 2008, 1:47am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/6 "2008-12-10T01:47:33Z")
> [@Rigamarole](#): > > What I always wondered is if it was a 13-year old claiming they were 18, would it be a crime then? Some states address this, saying that the accused had to have knowingly been a pervert. However, if it is obvious that the child is young and lying, but the creep sleeps with him/her anyway, then the court can decide that the accused was grossly negligent. The Ohio Revised Code has this to say: > [@](#): > > (A) No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, **or the offender is reckless in that regard**. > > (B) Whoever violates this section is guilty of unlawful sexual conduct with a minor. (bolding mine) WRT To Catch a Predator, this code applies: > [@](#): > > (C) No person shall solicit another by means of a telecommunications device, as defined in section 2913.01 of the Revised Code, to engage in sexual activity with the offender when the offender is eighteen years of age or older and either of the following applies: > > (1) The other person is less than thirteen years of age, and the offender knows that the other person is less than thirteen years of age or is reckless in that regard. > > (2) The other person is a law enforcement officer posing as a person who is less than thirteen years of age, and the offender believes that the other person is less than thirteen years of age or is reckless in that regard. > > (D) No person shall solicit another by means of a telecommunications device, as defined in section 2913.01 of the Revised Code, to engage in sexual activity with the offender when the offender is eighteen years of age or older and either of the following applies: > > (1) The other person is thirteen years of age or older but less than sixteen years of age, the offender knows that the other person is thirteen years of age or older but less than sixteen years of age or is reckless in that regard, and the offender is four or more years older than the other person. > > (2) The other person is a law enforcement officer posing as a person who is thirteen years of age or older but less than sixteen years of age, the offender believes that the other person is thirteen years of age or older but less than sixteen years of age or is reckless in that regard, and the offender is four or more years older than the age the law enforcement officer assumes in posing as the person who is thirteen years of age or older but less than sixteen years of age. So, basically, if you solicit a minor over the internet, or even a cop posing as a minor over the internet, you’ve broken the law. (at least in the state of Ohio) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 10, 2008, 1:53am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/7 "2008-12-10T01:53:52Z")
Here’s the federal statute: > [@](#): > > (a) Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both. > \*\*(b) Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life. \*\* (Emphasis added.) [18 U.S. Code § 2422 - Coercion and enticement | U.S. Code | US Law | LII / Legal Information Institute](http://www4.law.cornell.edu/uscode/uscode18/usc_sec_18_00002422----000-.html) ---
**Author:** ![seodoa](https://avatars.discourse-cdn.com/v4/letter/s/4af34b/32.png) [@seodoa](https://boards.straightdope.com/u/seodoa)\ **Post date:** [December 10, 2008, 1:57am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/8 "2008-12-10T01:57:57Z")
> [@Gfactor](#): > > Here’s the federal statute: > > (Emphasis added.) [18 U.S. Code § 2422 - Coercion and enticement | U.S. Code | US Law | LII / Legal Information Institute](http://www4.law.cornell.edu/uscode/uscode18/usc_sec_18_00002422----000-.html) IANAL, but it seems that statute does not apply specifically to To Catch a Predator, as they are actually enticing law enforcement officers. There are state laws that work around this (as quoted above), but is there anything at the federal level that makes enticing an officer posing as a child equivalent to enticing a child? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 10, 2008, 2:08am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/9 "2008-12-10T02:08:23Z")
Allow me to illustrate: > [@](#): > > On appeal, Farner claims that the district court should have granted his motion for judgment of acquittal because it was legally impossible for him to have committed the crime since the “minor” involved in this case was actually an adult. > > * * * > > Relying on United States v. Contreras, 950 F.2d 232, 237 (5th Cir. 1991), cert. denied, 504 U.S. 941, 112 S. Ct. 2276, 119 L. Ed. 2d 202 (1992), the district court held that “factual impossibility is not a defense if the crime could have been committed had the attendant circumstances been as the actor believed them to be.” The court found beyond a reasonable doubt that Farner believed Cindy to be a minor and acted on that belief. On appeal, Farner insists that his defense was not factual impossibility, but rather legal impossibility. > > The distinction between factual and legal impossibility is elusive at best. See, e.g., United States v. Everett, 700 F.2d 900, 905 (3rd Cir. 1983) (stating that the doctrine has become a “source of utter frustration” and a “morass of confusion”). Most federal courts have repudiated the distinction or have at least openly questioned its usefulness. See Osborn v. United States, 385 U.S. 323, 333, 87 S. Ct. 429, 434, 17 L. Ed. 2d 394 (1966) (questioning whether “the doctrine of ‘impossibility’ with all its subtleties” should have continued validity); United States v. Powell, 1 F. Supp. 2d 1419, 1421 (N.D.Ala. 1998), aff’d, 177 F.3d 982 (“In the Eleventh Circuit…traditional factual impossibility/legal impossibility analysis has been discarded”); United States v. Darnell, 545 F.2d 595, 597 (8th Cir. 1976) (“Beyond the logical problem is the pragmatic: the difficulty of categorization [of the two impossibilities]. The tidy dichotomy of the theoretician becomes obscure in the courtroom”); United States v. Duran, 884 F. Supp. 577, 580 n.5 (D.D.C. 1995), aff’d, 321 U.S. App. D.C. 47, 96 F.3d 1495 (D.C. Cir. 1996) (“Categorizing a case as involving legal versus factual impossibility is difficult, if not pointless”); United States v. Quijada, 588 F.2d 1253, 1255 (9th Cir. 1979) [\*\*6] (rejecting impossibility defense). > > The illusory distinction between the two defenses is evident in the instant case. Thus, Farner says this is a case of legal impossibility because Kathy Crawford was an adult, and the statute does not address attempted sexual activity between adults. On the other hand, the district court viewed the impossibility as factual, because the defendant unquestionably intended to engage in the conduct proscribed by law but failed only because of circumstances unknown to him. We think the latter view is correct. > > In any event, in the case.this circuit has properly eschewed the semantical thicket of the impossibility defense in criminal attempt cases and has instead required proof of two elements: first, that the defendant acted with the kind of culpability otherwise required for the commission of the underlying substantive offense, and, second, that the defendant had engaged in conduct which constitutes a substantial step toward commission of the crime. The substantial step must be conduct which strongly corroborates the firmness of defendant’s criminal attempt. United States v. Mandujano, 499 F.2d 370, 376 (5th Cir. 1974); United States v. Oviedo, 525 F.2d 881, 885-86 (5th Cir. 1976); United States v. Contreras, supra. The Model Penal Code endorses this approach. See Model Penal Code § 5.01 (1985). In this case, the district court correctly concluded from the stipulated evidence, beyond a reasonable doubt, that Farner intended to engage in sexual acts with a 14-year-old girl and that he took substantial steps toward committing the crime. > > We need not hold that there can never be a case of true legal impossibility, although such a case would be rare. 2 HN4Go to this Headnote in the case.The typical definition of that defense is a situation “when the actions which the defendant performs or sets in motion, even if fully carried out as he desires, would not constitute a crime.” United States v. Oviedo, 525 F.2d at 883 (emphasis added). The one case cited by Farner which arguably invokes that doctrine is United States v. McInnis, 601 F.2d 1319 (5th Cir. 1979). The defendants there were charged with, among other things, conspiracy to violate the federal kidnapping statute, 18 U.S.C. § 1201. The intended scheme of the alleged co-conspirators was to entice the victim to travel into Mexico on his own volition so that he could [\*\*8] be kidnaped in Mexico. The co-conspirators “planned neither to cross state or international borders themselves nor to follow the abduction of (the victim) with international travel.” Id. at 1326. This court concluded that even if the scheme had been implemented exactly as planned, it did not violate the federal kidnapping statute. 3 The situation in the instant case is quite different. Defendant Farner’s scheme, if fully carried out as he “desired” or “planned,” was not to engage in sexual relations with an adult FBI officer. **By his own stipulation, the person whom he desired to entice was a 14-year-old girl. The only reason he failed was because the true facts were not as he believed them to be.** > > - > - > - > - > - > - > - > - > - > - > - > - > - > - Footnotes - - - - - - - - - - - - - - - > 2 Some courts have used the term “pure legal impossibility.” United States v. Hsu, 155 F.3d 189, 199 n.16 (3d Cir. 1998) (“Pure legal impossibility is always a defense”). Accord, In re Sealed Case, 343 U.S. App. D.C. 103, 223 F.3d 775, 779 (D.C. Cir. 2000).3 The McInnis opinion noted that the district court had dismissed the kidnapping count “on the ground of ‘legal impossibility.’” 601 F.2d at 1323. It then analyzed the federal statute and affirmed the dismissal, but did not apply the label of “legal impossibility” or any other label to its analysis. Another label that could describe the McInnis result is the “principle of legality.” Cf. United States v. Lanier, 520 U.S. 259, 117 S. Ct. 1219, 1225 n.5, 137 L. Ed. 2d 432 (1997) (conduct may not be treated as criminal unless it has been so defined by a competent authority); United States v. Berrigan, 482 F.2d 171, 186 (3d Cir. 1973). > > - > - > - > - > - > - > - > - > - > - > - > - End Footnotes- - - - - - - - - - - - - - > > [\*\*9] The judgment is affirmed. United States v. Farner, 251 F.3d 510; 2001 U.S. App. LEXIS 9226 (5th Cir. 2001) (Emphasis added.) ---
**Author:** ![seodoa](https://avatars.discourse-cdn.com/v4/letter/s/4af34b/32.png) [@seodoa](https://boards.straightdope.com/u/seodoa)\ **Post date:** [December 10, 2008, 2:12am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/10 "2008-12-10T02:12:42Z")
> [@Gfactor](#): > > Allow me to illustrate: > United States v. Farner, 251 F.3d 510; 2001 U.S. App. LEXIS 9226 (5th Cir. 2001) (Emphasis added.) Awesome, thanks. So basically, while it’s not spelled out in the law, it is interpreted as equivalent by the courts. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 10, 2008, 2:28am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/11 "2008-12-10T02:28:53Z")
Well, to be doctrinally accurate, if I think the person is a minor and I try to entice them to have sex with me, I am attempting to commit the crimes (glossing over a few details). So the law covers it expressly when it says “or attempts to do so.” The defendant in \*Farner \*(and many other cases) offered the defense that the crime he’s accused of attempting would be impossible to commit because he was mistaken about an important fact–he wanted to hook up with the 14-year old girl named Cindy. He was unaware that Cindy was really a hairy male FBI agent. Courts rejected this argument long ago because the guy is just as dangerous. If it really \*had \*been Cindy he was talking to, he would have had sex with a 14-year old girl. He tried to fit his defense into a slightly safer impossibility defense–legal impossiblity, which the court rejected. The problem with legal impossiblity is that it’s usually just factual impossiblity reframed slightly. See, e.g., [http://www3.fdle.state.fl.us/OGC/Case\_Updates/cu9911\_9-17.html](http://www3.fdle.state.fl.us/OGC/Case_Updates/cu9911_9-17.html) ---
**Author:** ![Mr.Slant](https://avatars.discourse-cdn.com/v4/letter/m/c57346/32.png) [@Mr.Slant](https://boards.straightdope.com/u/Mr.Slant)\ **Post date:** [December 10, 2008, 2:31am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/12 "2008-12-10T02:31:22Z")
So if you were just online cruising for hairy FBI agents pretending to be 14-year-old girls, you’d be legal, except it would be impossible to prove that you weren’t cruising for 14-year-old girls? What if you were married to David Duchovny’s character from X-files? ---
**Author:** ![Cagey\_Drifter](https://avatars.discourse-cdn.com/v4/letter/c/b2d939/32.png) [@Cagey\_Drifter](https://boards.straightdope.com/u/Cagey_Drifter)\ **Post date:** [December 10, 2008, 2:31am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/13 "2008-12-10T02:31:26Z")
Not directly related to the question, but I must share: There’s this underground comedian Josh London who has a routine where he’s talking about God, and he says “I don’t really have any strong thoughts on God, except that I sort of think of him as Chris Hansen in ‘To Catch a Predator.’” ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 10, 2008, 2:44am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/14 "2008-12-10T02:44:15Z")
> [@Rigamarole](#): > > What I always wondered is if it was a 13-year old claiming they were 18, would it be a crime then? Assuming the guy didn’t know the 13-year old was lying, probably not. See, e.g., _United States v. Meek_, 366 F.3d 705; 2004 U.S. App. LEXIS 7470 (9th Cir. 2004) (upholding section 2422 over First Amendment challenge because, “Knowledge of the age of the person induced is essential to the construction of § 2422(b) because, with few exceptions, the inducement of a person over the age of 17 into sexual activity is generally not illegal. Because we conclude that the term “knowingly,” as it is used in § 2422(b), requires the defendant to know or believe that the person whom he seeks to induce into sexual activity is a minor, § 2422(b) does not infringe on legitimate speech between adults.”) ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [December 10, 2008, 2:52am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/15 "2008-12-10T02:52:56Z")
> [@Gfactor](#): > > If it really \*had \*been Cindy he was talking to, he would have had sex with a 14-year old girl. And if I really had a hard 16 inch dick, I would be a porn star. Where is my money and my movie deals? I dunno. I know it’s the court’s decision, but it reeks of “We don’t like the guy, he’s a perv and we want to lock him up, but he hasn’t broken any laws. So let’s twist this law to be able to put him away”. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 10, 2008, 3:26am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/16 "2008-12-10T03:26:41Z")
> [@jtgain](#): > > And if I really had a hard 16 inch dick, I would be a porn star. Where is my money and my movie deals? > > I dunno. I know it’s the court’s decision, but it reeks of “We don’t like the guy, he’s a perv and we want to lock him up, but he hasn’t broken any laws. So let’s twist this law to be able to put him away”. But he has broken the law. > [@](#): > > The statute requires mens rea, that is, a guilty mind. The guilt arises from the defendant’s knowledge of what he intends to do. In this case, knowledge is subjective – it is what is in the mind of the defendant. Thus, a jury could reasonably infer that Meek knowingly sought sexual activity, and knowingly sought it with a minor. That he was mistaken in his knowledge is irrelevant. Meek possessed the guilty mind required by the statute. > > Meek’s crime was an attempted violation of § 2422(b). The attempt provision of this statute underscores Congress’s effort to impose liability regardless of whether the defendant succeeded in the commission of his intended crime. It would be contrary to the purpose of the statute to distinguish the defendant who attempts to induce an individual who turns out to be a minor from the defendant who, through dumb luck, mistakes an adult for a minor. To hold otherwise would bestow a windfall to one defendant when both are equally culpable. > > The attempt provision here is no different than an attempted solicitation of prostitution, where the criminal conduct is the knowing effort to solicit an individual for prostitution. That the individual turns out to be a decoy undercover officer does not vitiate the criminal conduct–indeed, such sting operations are “common practice.” Rodriguez v. Panayiotou, 314 F.3d 979, 984 (9th Cir. 2002). \*Meek \* > [@](#): > > II. “Actual Minor” and §§ 2422(b) & 2423(b) > > Tykarsky’s first contention is that the evidence was insufficient to support his conviction on either count because it showed only that he had communicated and traveled to engage in sexual activity with an adult undercover agent. Raising the defense of legal impossibility, he contends that both § 2422(b) and § 2423(b) require the involvement of an actual minor. The District Court, relying on cases from the Fifth, Ninth and Eleventh Circuit Courts of Appeals, rejected this contention and held that “an actual victim is not required for a prosecution of attempt under § 2422 or for travel with the requisite intent under § 2423.” This case presents the first opportunity for us to address whether the attempt provision of § 2422(b) and the travel provision of § 2423(b) require the involvement of an “actual minor.” We will discuss each in turn. > A. > > Section 2422(b) of Title 18 reads: > > ``` > Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, knowingly persuades, induces, entices, or coerces any individual who has [**13] not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both. > > ``` > > 18 U.S.C. § 2422(b) (2002) (emphasis added). > > As we observed in United States v. Hsu, “[t]he law of impossible attempts has received much scholarly attention, but remains a murky area of the law.” 155 F.3d 189, 199 (3d Cir. 1998). The common law distinguishes between legal and factual impossibilities, providing that the former is a defense an that the latter is not. Factual impossibility “‘is said to occur when extraneous circumstances unknown to the actor or beyond his control prevent consummation of the intended crime.’” Id. (quoting United States v. Berrigan, 482 F.2d 171, 188 (3d Cir. 1973)). By contrast, “‘[l]egal impossibility is said to occur where the intended acts, even if completed, would not amount to a crime.’” Id. (quoting Berrigan, 482 F.2d at 188). Legal impossibility has been held to apply when a person accepts goods mistakenly believed [\*\*14] to be stolen, see People v. Jaffe, 185 N.Y. 497, 78 N.E. 169 (N.Y. 1906), when a hunter shoots a stuffed deer believing it to be alive, see State v. Guffey, 262 S.W.2d 152 (Mo. Ct. App. 1953), and when a prisoner attempts to smuggle letters out of prison under the mistaken belief that the warden has not consented, see Berrigan, 482 F.2d at 190. 3 A classic example of factual impossibility is when a person fires a gun at a bed intending to kill another person, but the intended victim is not in the bed; the crime cannot be completed because of extraneous factors beyond the shooter’s control. Hsu, 155 F.3d at 199. > > - > - > - > - > - > - > - > - > - > - > - > - > - > - Footnotes - - - - - - - - - - - - - - - > 3 These cases have been termed by many commentators as examples of “hybrid legal impossibility.” See Hsu, 155 F.3d at 199 n.16. “Pure” legal impossibility, which is always a defense, occurs when the law does not even “proscribe the goal that the defendant sought to achieve.” Id. > > - > - > - > - > - > - > - > - > - > - > - > - End Footnotes- - - - - - - - - - - - - - > > Here, Tykarsky contends that it [\*\*15] was legally impossible for him to persuade a minor to engage in “sexual activity for which any person can be charged with a criminal offense” because “HeatherJet14” was an adult and, as a legal matter, any sexual activity between him and the undercover agent would not be criminal. The Government contends that this is a case of factual impossibility because Tykarsky intended to engage in the conduct proscribed by law but failed only because of circumstances unknown to him. As we have recognized, the difficulty in these types of cases “is that the distinction between factual and legal impossibility is essentially a [\*466] matter of semantics, for every case of legal impossibility can reasonably be characterized as a factual impossibility.” Id. For example, in the case involving the stuffed deer, had the facts been as the hunter believed, i.e. the deer was alive, the hunter would be guilty of shooting a deer out of season. The elusiveness of this distinction and the belief that the impossibility defense exonerates defendants “in situations where attempt liability most certainly should be imposed,” ALI Model Penal Code and Commentaries § 5.01, Comment at 308-309, has led many jurisdictions [\*\*16] to eschew the distinction between legal and factual impossibility and abolish the defense altogether. See Hsu, 155 F.3d at 199 (collecting cases and observing that few jurisdictions still recognize impossibility as a defense); United States v. Farner, 251 F.3d 510, 512 (5th Cir. 2001) (“The distinction between factual and legal impossibility is elusive at best. Most federal courts have repudiated the distinction or have at least openly questioned its usefulness.”); see also ALI Model Penal Code and Commentaries § 5.01, Comment at 578 (“The purpose of [the MPC’s definition of attempt] is to eliminate legal impossibility as a defense to an attempt charge.”). > > Two of our sister courts of appeals have held that the absence of an actual minor in a § 2422(b) prosecution is a matter of factual impossibility. See Farner, 251 F.3d at 513; United States v. Sims, 428 F.3d 945, 959-960 (10th Cir. 2005). We, however, find it unnecessary to resolve this thorny semantical question here. Even assuming that this is a case of legal impossibility, it is well established in this Court that the availability of legal impossibility [\*\*17] as a defense to a crime is a matter of legislative intent. See Hsu, 155 F.3d at 200 (examining legislative intent to determine whether Congress meant to permit a defense of impossibility to an “attempt” crime under the Economic Espionage Act); United States v. Everett, 700 F.2d 900, 904 (3d Cir. 1983) (reviewing the legislative history of the Drug Control Act and concluding that “Congress intended to eliminate the defense of impossibility when it enacted section 846”). Although when Congress uses a common law term such as “attempt” we generally presume that it intended to adopt the term’s widely-accepted common law meaning, including any common law defenses such as impossibility, “the courts will not impose that meaning if there are grounds for inferring an affirmative instruction from Congress to define it otherwise.” Hsu, 155 F.3d at 200 (citations and internal quotations omitted). Indeed, regardless of whether we frame Tykarsky’s challenge as relating to the defense of legal impossibility or to the Government’s failure to establish the necessary elements of § 2422(b), our task is the same: to discern legislative intent. > > After [\*\*18] examining the text of the statute, its broad purpose and its legislative history, we conclude that Congress did not intend to allow the use of an adult decoy, rather than an actual minor, to be asserted as a defense to § 2422(b). First, the plain language of the statute, which includes an “attempt” provision, indicates that something less than the actual persuasion of a minor is necessary for conviction. See United States v. Meek, 366 F.3d 705, 718 (9th Cir. 2004) (observing that the inclusion of the attempt provision “underscores Congress’s effort to impose liability regardless of whether the defendant succeeded in the commission of his intended crime”); United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002) (observing that the attempt provision indicates that “[t]he fact that [the defendant’s] crime had not ripened into a completed offense is no obstacle [to a conviction]”). Interpreting § 2422(b) to require the involvement of an actual minor would render the attempt provision largely [\*467] meaningless because, as a practical matter, little exists to differentiate those acts constituting “enticement” and those constituting "attempted enticement. [\*\*19] " The attempt provision is therefore most naturally read to focus on the subjective intent of the defendant, not the actual age of the victim. See Meek, 366 F.3d at 718 (holding that because the scienter requirement applies to both the act of persuasion and the age of the victim, attempt liability turns on the defendant’s subjective belief). We therefore believe that the statute’s plain language, though not conclusive, supports our holding. > > Second, as in Hsu and Everett, the underlying purposes of the law provide substantial evidence of a congressional intent that the defense of legal impossibility should not apply. In both Hsu and Everett, we stressed that the statutes at issue were designed to offer “comprehensive” solutions to the conduct being regulated. See Hsu, 155 F.3d at 201; Everett, 700 F.2d at 906-907. From this we concluded “that Congress could not have intended to adopt the impossibility defense, ‘whose viability at common law was questionable at best,’ because doing so would only ‘hamper federal efforts to enforce the drug [and corporate espionage] laws.’” Hsu, 155 F.3d at 201 (quoting [\*\*20] Everett, 700 F.2d at 906-907). > > * * * > > Seeking to undermine this evidence of legislative intent, Tykarsky points to two unpublished decisions from the Western District of Missouri that determined [\*\*22] that the legislative history indicates that the involvement of an actual minor is a prerequisite to conviction under § 2422(b). See United States v. Helder, 2005 U.S. Dist. LEXIS 38874, No. 05-00125-01-CR-W-DW (W.D. Mo. Aug. 5, 2005) (unpublished), United States v. Hicks, 2005 U.S. Dist. LEXIS 36625, No. 05-00042-01-CR-W-DW [\*468] > (W.D. Mo. Aug. 29, 2005) (unpublished). Both cases rely heavily upon an unadopted amendment to § 2422 that would have added a new subsection (c), making it a crime to “knowingly contact an individual, who has been represented to the person making the contact as not having attained the age of 18 years” for the purpose of engaging in sexual activity. See Helder, 2005 U.S. Dist. LEXIS 38874 at \*2-3, No. 05-00125-01-CR-W-DW (quoting H.R. 3494, § 101, 105th Cong., 2d Sess. (1998). By not adopting this amendment, the District Court for the Western District of Missouri reasoned, Congress specifically considered and rejected liability resulting from law enforcement agents posing as minors. Id. > > We disagree. Although legislative history is often an undependable guide to legislative intent, “failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute.” See United States v. Craft, 535 U.S. 274, 287, 122 S. Ct. 1414, 152 L. Ed. 2d 437 (2002) [\*\*23] (internal quotations omitted); see also Meek, 366 F.3d at 720 (“Sorting through the dustbin of discarded legislative proposals is a notoriously dubious proposition.”). We should be especially wary where, as here, the failed legislative proposal differs in fundamental ways from the enacted legislation. The failed legislative proposal cited by Tykarsky addresses “knowing contact,” rather than knowing “persuasion,” “inducement,” “enticement” and “coercion,” and was intended to supplement, not replace, § 2422(b). We therefore do not embrace the District Court for the Western District of Missouri’s interpretation of the legislative history and conclude that it is not persuasive here. > > Third, we deem significant that the statute here, like those at issue in Hsu and Everett, “was drafted at a time when ‘the doctrine of impossibility had become mired in fine distinctions and had lost whatever acceptance at common law it may have possessed when the statute considered in Berrigan was first enacted in 1930.’” Hsu, 155 F.3d at 202 (quoting Everett, 700 F.2d at 905). The first version of § 2422(b) was added to Title 18 in 1996, [\*\*24] almost three decades after the Model Penal Code reporters first advocated the elimination of the impossibility defense and the National Commission on Reform of the Federal Criminal Laws had concluded that the abolition of legal impossibility was already “the overwhelming modern position.” See id. (discussing the changing views on the impossibility defense). We therefore doubt that Congress intended to permit legal impossibility to be asserted as a defense to § 2422(b). > > Finally, we are mindful “of the potential damage that the [defendant’s] position could work on law enforcement under the statute.” Id.; see also Everett, 700 F.2d at 907 n.16. We mention this not because of our own policy preferences, but because it is relevant to Congress’s intent. It is common knowledge that law enforcement officials rely heavily on decoys and sting operations in enforcing solicitation and child predation crimes such as [\*\*25] § 2422(b). We consider it unlikely that Congress intended to prohibit this method of enforcement. Indeed, if we were to adopt Tykarsky’s reading of the statute, law enforcement officials would have to use actual minors in conducting sting operations. We do not believe Congress intended such a result. > > In light of § 2422(b)'s text, legislative purpose and history, and the unlikeliness that Congress intended the now-disfavored doctrine of legal impossibility to apply, we hold that the lack of an actual minor is not a defense to a charge of attempted persuasion, [\*469] inducement, enticement or coercion of a minor in violation of § 2422(b). We therefore join the Courts of Appeals for the Fifth, Ninth, Tenth and Eleventh Circuits in concluding that a conviction under the attempt provision of § 2422(b) does not require the involvement of an actual minor. Meek, 366 F.3d at 719; Farner, 251 F.3d at 512; Root, 296 F.3d at 1227; Sims, 428 F.3d at 959-960. > > Applying our interpretation of § 2422(b) here, we also conclude that Tykarsky’s conduct falls squarely within our definition of criminal attempt. A person is guilty of an attempt [\*\*26] to commit a crime “‘if, acting with the kind of culpability otherwise required for commission of the crime, he . . . purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.’” Hsu, 155 F.3d at 202-203, 203 n.19 (quoting and adopting Model Penal Code § 5.01(1)(c) (1985)). Thus, an attempt conviction requires evidence that a defendant (1) acted with the requisite intent to violate the statute, and (2) performed an act that, under the circumstances as he believes them to be, constitutes a substantial step in the commission of the crime. See id. at 203. > > The evidence in this case satisfies both elements. The instant messages and the statements that Tykarsky made to FBI agents upon his arrest establish Tykarsky’s subjective intent, and his appearance at the Holiday Inn according to the plan established over the instant messages provides the requisite “measure of objective evidence” corroborating his intent. See Everett, 700 F.2d at 908 (holding that “some measure of objective [\*\*27] evidence corroborating” the criminal intent is necessary for an attempt conviction). The instant messages also provide sufficient evidence that he took substantial steps towards “persuading, inducing, enticing or coercing” a minor to engage in sexual activity. Accordingly, we will affirm his conviction under § 2422(b). _United States v. Tykarsky_, 446 F.3d 458; 2006 U.S. App. LEXIS 11622 (3d Cir. 2006) ---
**Author:** ![Polerius](https://avatars.discourse-cdn.com/v4/letter/p/d78d45/32.png) [@Polerius](https://boards.straightdope.com/u/Polerius)\ **Post date:** [December 10, 2008, 3:35am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/17 "2008-12-10T03:35:27Z")
> [@Gfactor](#): > > The statute requires mens rea, that is, a guilty mind. The guilt arises from the defendant’s knowledge of what he intends to do. In this case, knowledge is subjective – it is what is in the mind of the defendant. Thus, a jury could reasonably infer that Meek knowingly sought sexual activity, and knowingly sought it with a minor. That he was mistaken in his knowledge is irrelevant. Meek possessed the guilty mind required by the statute. So can police set up a fake bank, and if you go in there with the intent to rob it, you will be charged with attempted bank robbery, even though there was no bank there to begin with? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [December 10, 2008, 3:51am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/18 "2008-12-10T03:51:28Z")
They use decoy cars [http://www.abcactionnews.com/news/local/story/Hillsborough-Sheriff-receives-bait-car-to-catch/TmbhP1QBy0eiIOjGc2ttig.cspx](http://www.abcactionnews.com/news/local/story/Hillsborough-Sheriff-receives-bait-car-to-catch/TmbhP1QBy0eiIOjGc2ttig.cspx) , decoy hookers [Undercover as Sex Workers: The Attitudes and Experiences of Female Vice Officers | Office of Justice Programs](http://www.ncjrs.gov/App/Publications/abstract.aspx?ID=239779) , and decoy drug dealers [http://www.nydailynews.com/archives/ny\_local/2002/04/19/2002-04-19\_sting\_nets\_alleged\_hitman\_hi.html](http://www.nydailynews.com/archives/ny_local/2002/04/19/2002-04-19_sting_nets_alleged_hitman_hi.html) . Why not a decoy bank? 😉 ---
**Author:** ![askeptic](https://avatars.discourse-cdn.com/v4/letter/a/eb9ed0/32.png) [@askeptic](https://boards.straightdope.com/u/askeptic)\ **Post date:** [December 10, 2008, 4:08am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/19 "2008-12-10T04:08:39Z")
> [@Polerius](#): > > So can police set up a fake bank, and if you go in there with the intent to rob it, you will be charged with attempted bank robbery, even though there was no bank there to begin with? Let me ask you this, say you and I got into an argument and I got so mad I wanted to kill you. I see a gun and some bullets on a table I pick it up and put the bullets into the gun I cock the gun and point it at your head and scream “Die mother fucker Die!” and pull the trigger. Nothing happens. In fact the gun had no firing pin although I did not know that. It was not possible for the gun to fire. Have I attempted to kill you? The answer is yes. ---
**Author:** ![Shawn1767](https://avatars.discourse-cdn.com/v4/letter/s/ee7513/32.png) [@Shawn1767](https://boards.straightdope.com/u/Shawn1767)\ **Post date:** [December 10, 2008, 4:50am UTC](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476/20 "2008-12-10T04:50:51Z")
Askeptic, in your example, the person you attempted to kill actually exists. What if you attempted to kill someone who didn’t exist? Would you still be expected to be charged with attempted murder? [Next page](https://boards.straightdope.com/t/what-crime-were-the-to-catch-a-predator-subjects-committing/476476.md?page=2)