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Thursday, April 07, 2011

Ind. Decisions - 7th Circuit issues one Indiana opinion today, another reversal

Note: The ILB has added links to the references cited in the concurring opinion.

In U.S. v. Taylor (ND Ind., Moody), a 21-page opinion, Judge Posner writes:

The defendant was charged with violating 18 U.S.C. § 2422(b), which provides that anyone who, “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.” He was convicted by a jury and sentenced to the statutory minimum of 10 years in prison. The appeal requires us to construe the statutory term “sexual activity”—surprisingly an issue on which there is very little law. * * *

To repeat our basic point: if “sexual activity” and “sexual act” are synonymous in Title 18, as they appear to be, then “sexual activity” requires contact because “sexual act,” we know, does. We cannot be certain that they are synonyms. * * *

Congress will have to define “sexual activity” more broadly than “sexual act” if it wants to bring the kind of behavior engaged in by the defendant in this case within the prohibition of section 2422(b) via the fondling and child-solicitation offenses found in the Indiana criminal code, when the defendant neither made nor, so far as appears, attempted or intended physical contact with the victim. In the meantime, however, assuming the defendant’s conception of the breadth of the Indiana statutes is correct, our interpretation of the federal statute will not allow the likes of the defendant to elude just punishment. For his more serious Indiana offense (child solicitation involving use of the Internet, which Indiana law treats as an aggravating circumstance), he could be sentenced to eight years in prison by an Indiana court. See Ind. Code §§ 35-42-4-6(b)(3), 35-50-2- 6(a).

The judgment is reversed with instructions to enter a judgment of acquittal. REVERSED AND REMANDED.

MANION, Circuit Judge, concurring. The court has presented a thorough comparative analysis of federal law and precedent to conclude that “sexual activity” and “sexual act” mean the same thing—under either label, any such act that does not involve physical contact between two people is excluded. I would not go so far and equate the term “sexual activity” with “sexual act.” Sexual activity is a broader term that includes things sexual that do not involve the actual physical encounter.

I do, however, agree that there are serious problems with this case: I do not believe that Jeffrey P. Taylor could be successfully prosecuted for either of the Indiana crimes that the government alleged he committed, and for that reason, I respectfully concur with the court’s judgment. * * *

It bears noting one final reason for giving the solicitation statute a limited reading. When this statute was passed in 1984, Taylor’s conduct was unimaginable. While law constantly trails crime, in the context of sexual behavior and technology the problem is particularly clear—the old laws will not do. The legislature has to specifically address this lamentable behavior and determine what the law truly proscribes. Under our current laws, with the advent and prevalence of “sexting” and virtual sexual behavior, many, many citizens are engaging in behavior that could make them felons. See Jordan J. Szymialis, Sexting: A Response To Prosecuting Those Growing Up with a Growing Trend, 44 Ind. L. Rev. 301 (2010) (a thorough article surveying the problem and offering suggestions for the legislature).[8] It is not enough to let the courts figure it out and to try to see if old definitions fit this new and troubling behavior.

In sum, although Taylor’s conduct was inappropriate and extremely troubling, I do not believe it would constitute a crime under either of the Indiana statutes listed in the indictment. For that reason, I concur with the court’s judgment.
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[8] See also Terri Day, The New Digital Dating Behavior—Sexting, 33 Hastings Comm. & Ent. L. J. 69 (2010); Robin Fretwell Wilson, Sex Play in Virtual Worlds, 66 Wash. & Lee L. Rev. 1127 (2009) (outlining how pedophiles use virtual worlds to solicit children, and the rise of virtual sex); Federal Trade Commission Report to Congress, Virtual Worlds and Kids: Mapping the Risks, 2009 WL 4755418 (F.T.C.) (giving recommendations to Congress on how to combat the threat to children in virtual worlds).

Posted by Marcia Oddi on April 7, 2011 01:03 PM
Posted to Ind. (7th Cir.) Decisions