Court rules in internet sex stings, saying for a crime to occur, the victim must be a minor...Chris Hansen looking for a job

[Terminator]

The Internet stings police consider key to protecting minors from sexual predators may lose some of their power after two recent Court of Appeals rulings.
The use of undercover investigators as bait in Internet chats has become routine in Central Indiana. But the attraction for law enforcement -- the lack of an actual victim -- also became the basis for the reversal of two convictions against a Shelbyville man Wednesday by the Indiana Court of Appeals. That leaves in place a third related conviction.
The reversal could mean new cases lead to lighter sentences. The decision and a similar ruling in July targeted the most serious charge usually leveled against suspects nabbed in online stings.
The court ruled 2-1 that attempted sexual misconduct with a minor, a Class B felony, requires that the victim be a minor; an undercover officer doesn't count. It also used the same reasoning to reverse Randy Gibbs' conviction of dissemination of matter harmful to a minor, leaving only a child solicitation conviction intact.
Gibbs, now 48, was arrested after he showed up at an Indianapolis apartment in 2006 with rope and condoms in his pockets following explicit online chats with an investigator posing as 15-year-old "Samantha."
Appeals Judge Melissa S. May dissented, arguing all charges should stand against Gibbs.
"He did all he believed was necessary to complete the offense of sexual misconduct of a minor," May wrote, "and he failed to complete the offense only because it was not possible under the circumstances."
Mario Massillamany, the Marion County prosecutor's spokesman, said the office had stopped using the attempted sexual misconduct charge in online sting cases after the July decision, which a different Court of Appeals panel issued in a Hamilton County case.
"We are always looking to protect children, " Massillamany said.
Now prosecutors must rely on charges of child solicitation, a Class C felony charge that applies under Indiana law as long as the defendant merely believes the intended victim is at least 14 and younger than 16.
The Class C felony carries a potential sentence of two to eight years in prison, far short of the maximum 20-year penalty for attempted sexual misconduct.
Hamilton County Prosecutor Sonia Leerkamp said she may lobby the General Assembly to broaden the sexual misconduct statute along the same lines as child solicitation. Until then, she said, her office will review how it charges online sting cases to conform to the rulings.
Leerkamp had hoped the Indiana Supreme Court would take up the Hamilton County case. Matthew Jachin Aplin, then 27, was arrested in 2006 after he chatted online with an investigator posing as a 15-year girl and showed up to a meeting inside a Fishers SuperTarget store.
But last month, the state Supreme Court declined to review the Court of Appeals' reversal of Aplin's attempted sexual misconduct conviction.
Prosecutors argue that online stings protect teenagers by snaring likely perpetrators, though judges often give reduced sentences or even probation -- as Aplin received -- because there are no actual victims.
No such luck for Gibbs, a Navy veteran with a clean record who expressed regret for bad judgment after a jury convicted him. Marion Superior Court Judge Sheila A. Carlisle gave him seven years in prison, including two years for child solicitation, with the possibility of spending the last four years in community corrections programs.
"I have serious concerns," Carlisle told him in October 2007, "about your ability to refrain from this conduct in the future."

[Five-0]

Yeah, we might as well let these monsters go after real kids so justice can be served.

[jmur5074]

Conspiracy to commit solicitation of a minor.


Problem solved.

Right?

[IndianaFuzz]

Geez, this makes me feel ashamed for my state. But I guess the answer is simple, pass a law making child solicitation a B Felony instead of a C.

[MacLean]

Conspiracy to commit solicitation of a minor.


Problem solved.

Right?

Nope - not if I understand them right.

[121Traffic]

Yeah, that sucks...you can be charged with Criminal Attempt for an offense here in Colorado, but it reduces the class of the offense...i.e. Class 1 Felony becomes an F2, etc. So you lose a level in sentencing, but the nastiest charges still go on their criminal history.

18-2-101. Criminal attempt.

(1) A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense. Factual or legal impossibility of committing the offense is not a defense if the offense could have been committed had the attendant circumstances been as the actor believed them to be, nor is it a defense that the crime attempted was actually perpetrated by the accused.

.......



(4) Criminal attempt to commit a class 1 felony is a class 2 felony; criminal attempt to commit a class 2 felony is a class 3 felony; criminal attempt to commit a class 3 felony is a class 4 felony; criminal attempt to commit a class 4 felony is a class 5 felony; criminal attempt to commit a class 5 or 6 felony is a class 6 felony.

[Terminator]

[Odd]

That just don't make sense.

This story had an officer posing as the minor, not the cast of Chris Hansen's amateur hour. What implications does this have for stopping a variety of other crimes?

[Rhino]

I assume this is a state court and not federal.

[lewisipso]

-- the lack of an actual victim --

Um...society? According to the court we would have to wait until a child is actually victimized before action could be taken. Why is it so hard to realize what it takes to help vicitms after they have been hurt. If the victim can be helped at all it sometimes takes a lifetime of mental assistance, at serious cost, for the victim to even exist in society. I sometimes think the people that need therapy are the judges. Morons.

[mtaylor]

How do these idiots actually pass the bar and then become judges?

[countybear]

Ah, the radical libertarian school of thought, no victim = no crime.

The problem is that in the mind of the predator, he appeases and justifies himself in believing that the child is not a victim, but a willing participant. The Court is, in essence, agreeing with him, by taking the spotlight completely off of the criminal intent of the accused and placing it on the validity of there being an actual victim involved. The problem is, there are indeed victims, past, present, and potential. The online predator is an indiscriminate and opportunistic animal. Can we actually be so naive to believe that the small number of predators caught in sting operations like these are all 'first-timers', who have never endeavored to meet and rape (yes, I said it, R A P E) children in the past?

The court has dealt justice a stunning blow, but I certainly fear much worse in the future. They have said through this, that efforts to protect your children on the internet are flawed, America, because we aren't really using your children as bait to catch the depraved. The court here (in its effect), is saying that it is now improper to keep children shielded and insulated from the depravity of the online predator.

[Pinki]

It is unbelievable how disssociated judges and really society can become from victims and reality. It's very sad.

[MacLean]

Ah, the radical libertarian school of thought, no victim = no crime.

Although I am not a "radical" libertarian, but simply a "conservative" libertarian - I wonder if you can explain the tie you made there more thoroughly.

Neither of the courts in question are particularly libertarian, the decision isn't particularly libertarian, and you lost me somewhere between the two.

The rest of your post was incredibly accurate, as far as I can tell.

I would have placed this decision squarely in the liberal category, myself.

[TXCharlie]

It sounds like the Legislature has some work to do - If they will do it. I'm sure that 80% of the lawmakers are defense lawyers by trade.

[countybear]

Although I am not a "radical" libertarian, but simply a "conservative" libertarian - I wonder if you can explain the tie you made there more thoroughly.

The Stanford Encyclopedia of Philosophy states "libertarianism holds that agents initially fully own themselves and have moral powers to acquire property rights in external things under certain conditions." It notes that libertarianism is not a “right-wing” doctrine because of its opposition to laws restricting adult consensual sexual relationships and drug use, and its opposition to imposing religious views or practices and compulsory military service. However, it notes that there is a version known as “left-libertarianism” which also endorses full self-ownership, but "differs on unappropriated natural resources (land, air, water, etc.)." "Right-libertarianism" holds that such resources may be appropriated by individuals. "Left-libertarianism" holds that they belong to everyone and must be distributed in some egalitarian manner.[1]

I used the term "radical libertarianism", to refer to the school of thought which tends to view many criminal statutes using a 'no harm, no foul' approach. This idiocy, which is often hallmarked in that it holds opposition to compulsory military service, I define as an extremist mantra likened to anarchy (in my opinion), wherein even seemingly 'routine' intervention by the State is likened to authoritarianism. Thus, drug use (no harm, no foul), promiscuous sexual relationships, ie: prostitution (no harm, no foul), and other alledged 'victimless crimes', should be legalized or otherwise not enforced. This same premise goes so far as to say that the enforcement of many traffic offenses and traffic-related criminal offenses (DWI, Reckless Operation) should be abolished, unless "actual" harm is caused.

Neither of the courts in question are particularly libertarian, the decision isn't particularly libertarian, and you lost me somewhere between the two.

The rest of your post was incredibly accurate, as far as I can tell.

I would have placed this decision squarely in the liberal category, myself.

I believe that much of what we consider 'liberal' can be easily in agreement with libertarian extremism, and use for examples the legalization of currently illegal narcotics, reduction in sentencing for certain offenses, total anti-prohibitionist stances on certain offenses, (on which both libs and extreme libertarians agree).

Perhaps the primary reason that I called the court's decision libertarian, rather than liberal, is that the court severely limited the State's ability to investigate and prosecute this offense. A purely 'liberal' approach would have been to dismiss the cases with predjudice, thereby attacking the arrests made as violations of civil rights ('illegal siezures' of the defendants), and pave the way for the ACLU to act against the departments and prosecutors.

The largest difference between 'libertarianism', and 'liberalism', as I see it, is the trust and growth of the State, in that, liberals blame the society for the ills of people and look to the State as the answer, where (again, extremist) libertarians tend to blame the State as the root of societal ills, and look to abolition of State authority as the remedy.

I hope this explains my position.

[MacLean]

I hope this explains my position.

It does, and I was sort of thinking that was the direction you were going.

I think the court - and libertarians - are talking about two different sorts of "victimless crime," but now I understand the connection you drew.

The term "want of a victim" as used here by this court is not quite the same as the libertarian ideal of "no harm, no foul" that one typically associates with legalization arguments for drugs or prostitution.

I'd be amazed to see a libertarian defense of this court decision, and in fact find it flawed from a libertarian standpoint. I don't think the intent of the court was "victimless crime," but rather "lack of a victim comprising an element."

In Washington State, we avoid this sort of issue by composing all of our crimes in four mental states: Knowledge, Intent, Recklessness, or Criminal Negligence.

In the statute applied to this example, Intent would be the mental state - thus eliminating any confusion. It would be a simple matter to re-write the statute thusly in the afflicted States.

Anyhow, thanks for explaining your position.