“It’s Y2K Pimpin” (Online Sex Trafficking)

The Mann Act of 1910, also known as the “White-Slave Traffic Act,” made it a crime to transport women across state lines “for the purpose of prostitution or debauchery, or for any other immoral purpose.”  The primary stated intent of this Act was to address prostitution, immorality, and human trafficking.  Congress updated the definition of “transportation” in 1978, and added protection for minors, both male and female, against commercial sexual exploitation.  In 1986, an amendment further protected minors and replaced “debauchery” and “any other immoral purpose” with “any sexual activity for which any person can be charged with a criminal offense.”  Section 3 of the Mann Act was the precursor to 18 U.S.C. § 2422, and stated:

That any person who shall knowingly persuade, induce, entice, or coerce, or cause to be persuaded, induced, enticed, or coerced, or aid or assist in persuading, inducing, enticing or coercing any woman or girl to go from one place to another in interstate or foreign commerce, or in any Territory or the District of Columbia, for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose on the part of such person that such woman or girl shall engage in the practice of prostitution or debauchery, or any other immoral practice, whether with or without her consent, and who shall thereby knowingly cause or aid or assist in causing such woman or girl to go and be carried or transported as a passenger upon the line or route of any common carrier or carriers in interstate or foreign commerce, or any Territory or the District of Columbia, shall be deemed guilty of a felony and on conviction thereof shall be punished by a fine of not more than five thousand dollars, or by imprisonment for a term not exceeding five years, or by both fine and imprisonment, in the discretion of the court.

The scope and purpose of § 2422 underwent a significant shift in 1996 when Congress passed the Telecommunications Act of 1996.  Congress amended § 2422 by adding subsection (b), which specifically targeted the persuasion of minors, eliminated the requirement of “travel in interstate [or] foreign commerce,” and added an attempt provision.  The focus of § 2422(b) became “whether a person used a facility of interstate commerce to persuade, or attempt to persuade, a minor to engage in an illegal sexual activity.”  Although as I mentioned in my previous blog entry, it was the PROTECT Act that really cracked down on cyber-predators who victimize children.

The current version of § 2422(b) 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 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.”

§ 2422(b) is all encompassing in a way.  The cases that allege violations of § 2422(b) all involve minor victims.  Because of this specification, statutory rape is a common criminal offense that the alleged predator could have been charged with.  This statute does not require that the actual crime of statutory rape, or whatever the criminal offense may be, is committed.  In fact, this statute does not even require that an attempt to commit that specific criminal offense is made.  It simply prohibits the persuasion, inducement, enticement, or coercion of a minor to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or the attempt to persuade, induce, entice or coerce a minor to engage in such activities.

Numerous appeals to a conviction of violating § 2422(b) have been brought; however, only a few have been successful.  This blog  entry will discuss the Legal Impossibility Defense, my next blog entry will discuss First Amendment Challenges.

The Legal Impossibility Defense:

Sting operations are common among law enforcement officials in catching sexual predators who use the Internet to target and lure minors into dangerous sexual encounters.  Those that are caught in sting operations are typically charged and convicted of violating § 2422(b).  As many of you have seen on Dateline NBC’s To Catch A Predator, a typical case arising from a sting operation starts with the predator initiating a conversation online with a law-enforcement agent posing as a minor.  The predator then discusses performing sexual acts with the purported minor and suggests meeting the purported minor in person.  After the meeting is arranged, the predator travels to the meeting place where he is arrested by law enforcement.

A recurring issue courts were initially faced with when dealing with these typical sting operation cases was whether the legal impossibility defense could be successfully raised.  As defined by the Third Circuit Court in United States v. Berrigan, 482 F.2d 171, 188 (3d Cir. 1973), legal impossibility occurs when “the intended acts, even if completed, would not amount to a crime.”  So, the predators in these sting operation cases often claimed that they could not be convicted of an attempt under § 2422(b) because they “attempted to persuade an undercover officer who was an adult – not a minor – to engage in sexual activity.”

Courts have consistently rejected legal impossibility as a valid defense to an attempt charge under § 2422(b).  United States v. Helder, 452 F.3d 751, 753 (8th Cir. 2006). Many times the defense is rejected because the courts recharacterize it as a factual impossibility defense, which is generally considered an invalid defense to criminal attempt charges.  Although United States Supreme Court has yet to address these issues, most of the Circuit Courts of Appeals have.  The Fifth Circuit does a good job discussing the legal impossibility and factual impossibility defenses in its opinion in United States v. Farner, 251 F.3d 510 (5th Cir. 2001), which has been relied upon by its “sister” circuits.

In Farner, the defendant met “Cindy” on AOL.  She sent him an instant message saying she was “a 14-year-old girl named Cindy.”  Farner asked her if she was looking for an older man, to which she responded that she was.  He then told her he wanted to meet her in person.  For the next three months, Farner kept in contact with Cindy through instant messaging, e-mail, and telephone calls.  During these conversations, Farner “attempted to persuade, induce, entice, and coerce Cindy into having sexual relations with him,” and would send her pornographic pictures.  Farner finally made arrangements to meet Cindy at a local restaurant so that they could engage in sexual activity.  Farner drove to the parking lot of the restaurant and was confronted and arrested by law enforcement officials.  Cindy was an FBI agent participating in an undercover sting operation.

Farner waived his right to a jury trial and was found guilty of violating § 2422(b) after the district court denied his motion for judgment of acquittal.  Finding that Farner “believed Cindy to be a minor and acted on that belief,” 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.”

On appeal, Farner insisted that his defense was not factual impossibility, but rather legal impossibility, claiming that because it was “legally impossible for him to have committed the crime since the ‘minor’ involved in this case was actually an adult,” and the statute doesn’t prohibit sexual activity between two adults, the district court should have granted his motion for judgment of acquittal.  The Fifth Circuit rejected Farner’s argument and instead agreed with the district court, viewing the case as one of factual impossibility because the defendant unquestionably intended to engage in the conduct proscribed by law but failed to only because of the circumstances unknown to him.

The Third Circuit noted in United States v. Tykarsky, 446 F.3d 458, 466 (3d Cir. 2006), a case similar to Farner, that “the distinction between factual and legal impossibility is essentially a mater of semantics.  Even assuming that this is a case of legal impossibility, it is well established in this Court that the availability of legal impossibility as a defense to a crime is a matter of legislative intent.”  The Third Circuit concluded 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).”

To summarize what the Fifth Circuit said, and what numerous other circuit courts have said since the Farner decision, an actual minor victim is not required for an attempt conviction under § 2422(b).


~ by natalielaw on November 15, 2010.

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