The "Crime de Jour" of the
90's
A History
| The Phobia
| > Allegations | Role-playing
& the Police |
A Final Word
Criminal Allegations on the Internet
How is it possible to sit at your own computer
exercising your 1st amendment rights and be the subject of a police
Internet sting operation? Actually, it is quite easy once you understand
the law.
Attempted Child Molestation (Penal Code § 664/288(a))
Let's suppose that the police want to create a
sting operation to catch a person who fences
(buys and resells) stolen property. The police pretend to be burglars
who have "stolen property"
to sell. The property is not actually stolen but the police pretend
that it is stolen. The "fence"
buys the allegedly stolen property from the police. In this scenario
it is factually impossible for the
"fence" to buy stolen property from the police since the
property is not stolen. However, if a
person attempts to commit a crime that is factually impossible to
commit he is still guilty of
"attempt". The "fence" would therefore be guilty
of "attempted receipt of stolen property".
Now, changing venues, let's suppose that the police want to create
a sting operation to catch a
molester, but this time on line. The police go on the Internet and
pretend to be thirteen years old.
They advertise in their "on-line profile" that they are
a minor looking forsex with an adult. They go
into sex chat room using this profile and chat with others in the
sex room. A suspect then
engages the police officer who is pretending to be a minor in sexual
chat and eventually a real life
meeting is arranged. The suspect is told to bring lubricants and
condoms so that they can have
a good time. The suspect arrives at a hotel as requested by the
police with condoms and
lubricant in his possession. At the hotel the suspect is arrested
for "attempted child molestation".
It is an attempt because it is factually impossible to be accused
of child molestation with a
forty-year-old police officer.
How serious is this? In the State of California all "attempt"
crimes carry as a sentence one
half of the underlying crime. Lewd acts with a minor under the age
of fourteen years
(Penal Code § 288(a)) carries eight years in prison; therefore,
attempted lewd acts with a
minor under the age of fourteen carries four years in the state
prison. Further, the defendant if
convicted must register as a sex offender every time he/she moves
and on his/her birthday
for the remainder of his/her life.
Harmful Matter (Penal Code § 288.2)
During this "sting chat" with the cyber
minor (a police officer) and the Internet user, the cyber
minor asks that the user--now a suspect-- send him pictures of himself.
Suspect sends a picture
of himself clothed. This isn't good enough for "cyber minor"
so he asks again for "special pictures".
The suspect sends a nude of himself or of others.
The suspect will now be charged with attempted sending of harmful
matter to a minor with the
intent to arouse, appeal to or gratify the lusts or passions or
sexual desires of the adult or of
"cyber minor". This charge carries with it three years
in the state prison or eighteen months
for the attempt. Each photograph might also be charged as a separate
offense, adding years
to the sentence.
Now consider this: what if the adult and "cyber minor"
engage in "cyber sex"? Again, the suspect
might be charged with "sending" harmful matter (the conversations)
to a minor. The law would not
make an oral conversation harmful "matter" but the prosecution
theory is that the electronic
transfer becomes "matter". There is currently no case
law which rules whether a "chat" on the
Internet is "matter" as defined in Penal Code § 288.2
or whether it is protected by the
1st Amendment.
| Constitutional Challenge
The Law Office of Patrick E. Clancy is currently
undertaking the first challenge to the constitutionality of
Penal Code § 288.2 in the state of California on the
grounds that it violates the 1st Amendment Freedom of Speech
Clause of the United States Constitutions and violated the
Commerce Clause of the United States Constitution. Those challenges
are currently working their way through the courts.
|
Child Pornography or Sexual Exploitation of a Child (Penal
Code § 311.3)
"Cyber minor" now asks the suspect to
send him some more pictures. This time the pictures
depict a minor engaged in a sex act or simulated sex act. The suspect
is now charged with the
Sexual Exploitation of a Minor . This offense carries one year in
the county jail on a first offense
and three years in state prison if the suspect has a prior offense.
However, if the suspect does not send any child pornography to "cyber
minor", that is not the
end of the investigation. When he is arrested for either attempted
child molestation or sending harmful matter to a minor, the police
get a search warrant for the suspect's computer. Mixed in
with adult with adult sexual matter on the hard drive are several
pictures depicting minors
engaged in sexual conduct. The suspect is then charged with child
pornography or Sexual
Exploitation of a Child (Penal Code § 311.3)
How such photos (depicting sexual acts between an adult and a minor)
come into the computer
is an important consideration. For example, what if the suspect
received an e-mail with a child pornography picture attached? According
to Penal Code §311.3(f) if the suspect receives
unsolicited child pornography over the Internet there is no violation
of the law so long as the
suspect doesn't make copies or send copies to others. There is no
mention in the law that he
must destroy these files. (However, our attorneys recommend that
anyone who receives such
un-solicited child pornography immediately destroy it. You don't
want to be put in the position
of proving that it got on your computer drive unsolicited.)
<< Previous
| Next
>>
Top of Page
|
