How Un-Enticing Allegations Can Be Defended: Child Enticement Cases

Federal charges were recently filed in United States District Court in Boston against a Northbridge, MA attorney. The federal charges include allegations of possession and/or dissemination of child pornography, as well as enticement of a child. As an experienced criminal defense attorney who’s handled many sex crimes cases on both the state and federal level involving the same or similar charges, I can tell you that while straight possession cases leave little to defend against once possession/ownership is clear and 4th Amendment challenges have failed, child enticement/disseminating, or contributing to delinquency of minors, charges are often easier alleged than proven.

Generally, when the Commonwealth brings charges of enticement of a child, dissemination of child pornography or possession of child pornography, they fall under G.L. 265 § 26C; G.L. 272 §§ 28; 29, 29A29C; 30; 30D and/or 31, respectively, and carry maximum penalties of between 5 and 20 years. Under federal law, the like charges are usually brought under 18 U.S.C. §§ 2251 through 2252A; 2260; 2422; 2423; and/or 2425, and carry maximum penalties of up to life in prison under certain facts. Federal charges often also call for significant sentence enhancements when computers or other electronic devices are involved, or the internet is used in connection with the underlying crime(s). Even if the computer exchange/transaction(s) are between citizens of the same state, federal charges can still be brought whenever the internet is involved, as well. Moreover, crossing state lines with the intent to engage in sexual conduct with a minor carries even more significant penalties, even if the intended act is not consummated.

Most sex crimes charges of disseminating/contributing or child enticement that involve use of the internet are brought as a result of investigations stemming from law enforcement stings where undercover officers or state troopers go online posing as minors and engage in, and often encourage, online contact with a prospective target. For many criminal defense attorneys, the initial thought, therefore, is to challenge the charge(s) on the basis of factual impossibility, since the minor is actually not a minor at all, but rather a cop or state trooper pretending to be one. This is virtually never a viable defense. Courts have explicitly ruled that it’s the defendant’s intent to entice/have sex/cross state lines for sex with a minor that is at issue, and not whether or not he could have or did, in fact, engage in the proscribed conduct with a minor. In these cases, whether or not the victim was truly a minor is irrelevant in the courts’ view. The requisite intent can be proven just by agreeing to meet someone who says they are a minor for sexual purposes, even if they aren’t.

As an experienced Massachusetts criminal defense attorney who handles many sex crimes, cyber-crimes, and child pornography cases, not just here in the Commonwealth, but in other states and jurisdictions, too, I know that although the defendant’s intent will be used as the basis for such charges, it can also provide me the basis for viable defenses. This is because most cases involving undercover cops pretending to be minors are, by nature, inchoate (i.e., incomplete) since there is actually no minor to have, or even attempt to have, sex with. This creates a substantial evidentiary gap wherein the state/government must prove that what did occur was more than just talk/banter/cyber-fantasy/role playing. Often, in their eagerness to "catch a predator" and to conceal its own chicanery, the government has to act prematurely and effectuate the arrest before the necessary conduct, or steps, truly evincing the target’s actual intent occurs. Obviously, I’m not talking about those cases where the target of the sting shows up at a proposed rendezvous spot with condoms or sex toys or rope and handcuffs — those are easy to prove and rightfully should be prosecuted, or cases where it can be proven that the defendant took steps well beyond mere preparation. I’m talking about the majority of child enticement cases where there is online banter between a target and undercover, some braggadocio, maybe some photo-shopped images exchanged, but not much more. Those are the cases that should be aggressively challenged and vigorously defended because in many of these instances, all there is circumstantial evidence of what the government says the target’s subjective intent was when the target was on the computer/internet, not proof of what his intent actually would have been once he left his keyboard or closed his laptop. (But note to criminal defense attorneys new to defending sex crimes cases: as a result of the SJC definitively ruling in Commonwealth v. Zubiel that electronic correspondence of a "pornographic" nature had not been properly defined/included as "matter" necessary to prosecute dissemination/enticement cases, the MA Legislature has since re-worded the governing statute to include emails and instant messages, etc. to be included as "matter" for purposes of the aforementioned dissemination statutes.

As an experienced sex crimes attorney, I’m no one trick pony when it comes to defending any case and I’m well-aware that sufficiency of the evidence isn’t the only available defense in these types of cases. Often, a forensic psychiatric defense offered not in terms of challenging one’s criminal responsibility, but regarding one’s actual lack of intent (e.g., more and more people are suspending reality with cyber-space and role playing a fantasy life that exists online but does not reflect their intent to act in the real world, etc.) is both applicable and effective. There is also often a viable entrapment defense than can be presented, too. Troopers and cops who regularly trawl the internet for suspected child predators can be both aggressive (very pushy, insistent) and tricky/coy (e.g., going into adult chat rooms, luring someone already there into lengthy sexual dialogues, pretending to be an adult for a number of conversations, and then switching at the last instance to a minor’s profile). One egregious case I recently defended involved the police advertising online for adult ("over 18") massages/escorts, but then sending a minor to the agreed-upon rendezvous location instead. That I quickly got the charge dismissed there was less relevant than the fact that the charge was brought to begin with, and that was just one of many examples of outrageous governmental conduct resulting in entrapment that I have seen whereby individuals with no predisposition towards minors can be unwittingly ensnared in police-initiated "sting" operations!

To be sure, associated charges carry such a stigma in terms of the new "Scarlet Letter" with which most state legislatures try to label sexual offenders that many individuals accused of such crimes, even when not guilty, capitulate far too quickly in order not to endure the shame and humiliation that comes with salacious accusations. The government knows this and takes advantage of it, often by piling on with attenuated and over-reaching allegations. My response to most clients in these situations is "not so fast." These cases can be won/defended on the bases of 1.) insufficient proof of intent; 2.) forensic psychiatric evidence that the target had no intention of actually doing what their cyber-persona/alter-ego was fantasizing, or "talking", about doing online; and/or 3.) outrageous/improper government conduct in the form of entrapment. There are also almost always 4th Amendment implications at play in these types of cases as well, but I’ll save that discussion for another blog entry and end this one by saying the government can charge anyone with anything, but the difference between an accusation and proof beyond a reasonable doubt is a distinction well worth repeating, as is my frequent mantra and refrain "just because the government says it’s so, doesn’t mean it is"…

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828