Patterico's Pontifications


Criminalizing Internet Chat

Filed under: Blogging Matters,Civil Liberties — DRJ @ 2:57 pm

[Guest post by DRJ]

Is sexually enticing speech on the internet a crime if it’s directed at minors? The Utah Supreme Court heard argument today on just that issue:

“Can the state convict someone of enticing a minor over the Internet based on their words alone? That issue was the subject of lively debate among justices of the Utah Supreme Court on Wednesday.

At issue is whether or not Utah’s Internet Enticement statute is unconstitutional by saying a person engaged in sexual speech over the Internet need only believe they are chatting with a minor in orded to be convicted.

“All you’re doing is criminalizing speech,” said attorney Ann Taliaferro. “There has to be something more.”

The Utah case concerns James Gallegos who was convicted and sentenced to a year in jail for enticing an adult Utah Internet Crimes agent posing as a 13-year-old girl on the internet. Gallegos chatted with the agent/girl twice online and described how he wanted to sexually touch her. They arranged a meeting but when Gallegos drove by the designated place, he sped off. Agents tracked him using his license number.

Gallegos claimed he just wanted to see what the person looked like:

“Gallegos claims he had never believed the person he was chatting with was a minor. At some point, Gallegos said he was convinced the person was a gay man posing as a girl because in the past he had arranged meetings with supposed females only to meet a man. The reason he showed up at the meeting site, was out of curiosity about this person.”

The statute requires that the suspect must believe the person they are chatting with is a minor. At one end of the spectrum was Gallego’s defense counsel who argued that internet chat is fantasy, not grounded in reality, and people can be anyone they want online. At the other end, a Justice suggested that if a party says they are a minor, “log off.”

Chief Justice Christine Durham noted that Gallegos went beyond sexual speech — he solicited a meeting with someone who claimed to be a minor and he showed up at the meeting place. She likened it to sexual solicitation of a 13-year-old on the street. However, another Justice was troubled by the law:

“Justice Michael Wilkins asked Gray if it was illegal for someone to have “cyber-sex” with someone claiming to be a minor. “Does the state consider cyber-sex to be sexual activity?” Wilkins asked. Gray said the state did not, but if the person solicited sex and believed it was a minor, that is what the law requires.

Wilkins wondered how the state can establish what a person believes short of having a full confession. He said he was “troubled” by the law and concerned about its constitutionality. In this case, Wilkins said it appeared all the state needed to do to convict someone was to go online, set up a meeting for sex and that is enough.

Typically, state agents will try to get the suspect to show up at a pre-arranged location and time in order to prove legal intent.”

Gallegos also complained that he was not allowed to call an expert witness whose testimony was offered to show that Gallegos is not attracted to young girls and is not a pedophile. The trial court ruled the evidence was not relevant but some justices indicated that if a crime involved intent, defendant should be allowed to challenge that with expert testimony.


31 Responses to “Criminalizing Internet Chat”

  1. Throw the book at the pervert.

    nk (1e7806)

  2. What’s creepier? The creepy alleged creep or the creepy attempt to creep the law a little closer to a law against a “thought crime”? There is an existing law already. Use it to get the creep later.

    EdWood (06cafa)

  3. Isn’t there some provision in the law where intent is overcame by the actual actions? I seem to remember something about conspiracy convictions – that if a person takes steps to leave the conspiracy then they are no longer a member. Shouldn’t it be the same here? Maybe the guy actually did intend to have sex with the “13 yo girl” and decided no that’s wrong and just drove right past. Maybe he really did think it was a guy and decided this was a chance for a no strings attached gay encounter and got scared. The point is except for driving past on a (presumably) public street he didn’t do anything that really shows he intended to have sex. I can’t say that this is the type of guy I would want around my 10 year old niece but like so many people in life that isn’t enough to throw him in jail or kill him.

    chad (719bfa)

  4. Yes, chad, and I think that’s what the Chief Justice was getting at when she said Gallegos did more than talk – he also solicited and went to the meeting place. That might also be evidence of intent but I’m not sure it establishes that Gallegos knew he was dealing with a minor.

    DRJ (a431ca)

  5. The kind of lawyer that would call this a free speech issue is the same lawyer who would let someone serve 26 years so he didn’t have to violate lawyer-client privilage.

    This is disgusting. If you cannot pretend to be 12 to lure molesters, then you have to wait until he actually kidnaps and rapes someone? Does that satisfy the lawyers soul?

    martin (cd5d90)

  6. martin, perhaps you have an argument to make besides bashing lawyers?

    SPQR (26be8b)

  7. martin,

    I sympathize with your feelings. Lawyers spend a lot of time thinking about “what if” and that can lead to odd results sometimes.

    First, let’s assume Gallegos was telling the truth: He had no intention of doing anything with a 13-year-old girl but he was curious whether the person he was talking to was really a child. Haven’t we all wondered about the people we talk to online? Wouldn’t you be interested in seeing some of the people you talk to if you had the chance? It may be foolish to meet someone you met online in real life but lots of people do it.

    Second, I’ve been told that sexual discussion is rampant on the internet and it’s not hard for me to believe that’s true. I’m not interested in partaking but I don’t see how we can criminalize speech without causing a lot of peripheral problems.

    In this case, Utah has apparently criminalized sexually enticing speech that the speaker acts on with a minor. So Gallegos has to entice and act on it with a person he thinks is a minor. Most of the legal analysis addressed those 3 points — Did he entice? Did he act on it? Did he think the person he was chatting with was a minor?

    Maybe you are willing to answer “Yes” to all 3 questions but others might not be. After reading the report of today’s court hearing, it sounds like the Utah Supreme Court was also conflicted.

    DRJ (a431ca)

  8. i’ve been told that sexual discussion is rampant on the internet…

    which of the naughty nuns in your convent told you that?

    assistant devil's advocate (4a7b3f)

  9. The cute one, Sister Bunny.

    DRJ (a431ca)

  10. i’d like to help getting her out of her habit.

    assistant devil's advocate (4a7b3f)

  11. You win. I’m low on nun puns.

    DRJ (a431ca)

  12. i am so very conflicted on this. the guy is obviously a perv and somewhere is a potential victim for him. but in this case there was no underage kid for him to molest. there was no chance in this situation of any child being molested so it seems like a thought crime.

    chas (a235bf)

  13. You win. I’m low on nun puns.

    I guess you’re going to wimple out?

    Steverino (d6232c)

  14. “but in this case there was no underage kid for him to molest. there was no chance in this situation of any child being molested so it seems like a thought crime.”

    Wouldn’t that be the case in all undercover investigations?

    stef (56628b)

  15. This is like putting a purse in the seat of a car parked with the window open, and then waiting with officers to see if anyone wants to steal it.

    Just because the victim in this case is not an actual innocent person, the crook can only assume it is. For him to argue that “he was curious if it was a real purse” would be nuts.

    Any lawyer who would make this defense for him would be a lying sack of crap, and he would know it. But we are not dealing with a purse, or a thief. We are dealing with someone who has shown that he has what it takes to attempt to seduce a 13 year old. Arrest him now, or wait intil he has a body collection in the garden.

    When he does, I hope those children are all the spawn of lawyers with their precious “legal ethics” and theories.

    martin (cd5d90)

  16. I wonder how much of that rampant internet sex talk is trolling by law enforcement, and the replies.

    Just another thought crime, move along folks, nothing to see here.

    htom (412a17)

  17. Martin, you take your family to dinner…

    At dinner, a friend sends a bottle of wine to your table, waves, and you enjoy…your wife and you split the bottle…

    Dinner ends about an hour later, and you pay your bill, exit the restaurant…

    Heading for your car….

    Another patron, just observing, is waiting int he parking lot. That patron is a police officer. He witnessed you and your wife consume more alcohol in that hour than you can legally defend, and knows you will register above the legal limit. All he has to do is….

    Can you guess what will happen next???

    Should you be arrested “BEFORE” you commit the act? Or, should the officer wait until you get in the car, start driving, then arrest you? Or, should he wait until you crash the car, kill several people, maim others???

    Your argument is that you should be arrested BEFORE you commit an act you know would be illegal, right???

    Not what the law says….nor, is it what it should say.

    reff (bff229)

  18. Re 17, all I have to do is sit in the car with the keys in my possession, no need to drive.

    Pretty big stretch between that and “hey 13 year old girl (or boy), wanna get it on?” and then going to the meeting place.

    martin (cd5d90)

  19. reff #17,

    I actually had a case like that. The police told my client that they thought that he was too drunk to drive and that they would arrest him if he got in the car. He proved them right by getting in the car anyway. The car does not have to be moving for somebody to be guilty of DUI. All that is required is “actual physical control”. Sitting in the car with the keys in the ignition is enough.

    Utah’s law, in this case, may be badly written. But under the Model Penal Code, which a majority of States have adopted, he is guilty. Of solicitation and of attempt. Under federal conspiracy law, of conspiracy too.

    This is not a “thought crime”. Soliciting illicit sex is an overt act. The same as soliciting a contract killing. The “I was just kidding” defense is a question of fact for the jury and not a question of law.

    nk (1e7806)

  20. Soliciting non-illicit sex, too. Be prepared to show up and pay for dinner and at least a movie. And call her again 😉

    nk (1e7806)

  21. And to correct my #19, “overt act” is a term of art. To avoid confusion, make that, *Soliciting illicit sex is an act.*

    nk (1e7806)

  22. Had an inlaw who went to a huge party out on a farm. Late at night (well, early in the morning) he walked back to his car, which had been properly parked off the county road, thought about it, tossed the keys in the front seat, got in the back seat, and took a nap. Woke up a couple of hours later when the deputy was banging on his window.

    Guilty of DUI (although it might more realisticly been “attempting to complete field sobriety test while half-away and hung-over.)

    The reason I say that this is a thought crime is because it involves the LEO intentionally attempting to create thoughts in another’s mind that the LEO can then use to justify the arrest, and then claiming that those thoughts existed even when told that there are other explanations for an observable act. I think that the charge says more about the morals of the LEO than of the accused.

    htom (412a17)

  23. Entrapment. But it’s hard to prove. Mostly it’s a case of opportunists seeing a seeming opportunity.

    And most crime is opportunistic. A weak, witless punk of a criminal finding a vulnerability which gives him a victim.

    If I had been on this guy’s jury, I would have had no qualms voting to convict.

    nk (1e7806)

  24. What if the officer had tempted him into robbing a little old lady who was known to take a cash deposit to the bank on Thursday afternoons, and he’d driven by the bank on Thursday afternoon, seen the little old lady, and then driven on by without robbing her?

    Convict him of robbery? Attempted robbery? What if he has an account in that bank?

    htom (412a17)

  25. Nothing. He voluntarily abandoned the conspiracy/attempt.

    Different facts, different crime. Different crime, different defenses.

    Let’s just stick to the facts of this case. I think the crime was complete, as a question of law, when he solicited sex with a thirteen-year old. Whether he meant it is a question of fact.

    nk (8f20b5)

  26. I’m sorry, but I believe there is an affirmative duty for a grown man not to “flirt” with a thirteen-year old girl. On Al Gore’s internets as well as everywhere else. “Affirmative duty” means, “Buddy you asked for everything you got coming”.

    nk (8f20b5)

  27. #22 – htom – Your inlaw’s story is an example of the state using law enforcement to prohibit alcohol consumption without legislation. I don’t see it as pertaining to the case in the post, but it is definitely one of the reasons so many are quick to question the motives of the justice system.

    As for the molester, he is definitely guilty of soliciting sex with a minor, as per his chat session and then showing up at the location. However, I do think the law is poorly written, as it seems vague enough to make me worry more about ‘mission creep’ than the specifics of this case. What constitutes “entice”? Is just clicking a link enough? Answering an email?

    As an example, clicking on an email link to “young girls” could mean a lot of different things to a 60 year old vs. a 20 year old. 45 year olds might be “young” to the 60 year old, but hardly count as minors. DRJ is right, this case may not be easy to sympathize with, but the possibilities are worth concern.

    Apogee (366e8b)

  28. Let’s just stick to the facts of this case. I think the crime was complete, as a question of law, when he solicited sex with a thirteen-year old. Whether he meant it is a question of fact.

    Except that there was no 13 year old. Had there been, you’d be right. Instead, I’m reminded of the CGI kiddie pr0n issue. It’s a crime of a real child is involved, but can it be a crime based on the illusion of a child? That leads to divining and punishing intent, and not actions.

    Pablo (99243e)

  29. So Pablo thinks that sting operations of all kinds should be outlawed. And that it is better to have children get molested than it is to have the police pretend to be a child as a lure.

    How nice.

    martin (cd5d90)

  30. Pablo: it doesn’t matter that there was no 13 year old. He *believed* there was a 13 year old. Soliciting sex with a girl you believe to be 13 years old is a crime, whether or not your belief is correct.

    aphrael (e0cdc9)

  31. I would not take it so far, aphrael. I would analogize it to the prostitution stings. A man sees a woman dressed in a way she thinks a prostitute dresses and solicits her for sex for pay. She turns out to be a police decoy. He is still guilty of soliciting for the purpose of prostitution. His request was the crime. Society’s interest is not having such requests made. His “I was just kidding” should have come before the decoy’s backup pulled him out of his car and cuffed him.

    In this case, the perv’s “I was just kidding” should have been sent a minute after his solicitation.

    nk (8f20b5)

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