SL&P's special guest-bloggers point to US v. Gladish. For many people that practice criminal law, the scenario is sort of normal. Some guy gets on the internet and starts chatting with a cop. Only the cop claims to be a thirteen-year-old girl. Because this case contains a discussion of expert testimony as well as the substantive crime everyone should read it and discuss it on the internet.
Here are the facts:
The defendant lived in southern Indiana; "Abagail" purported to live in the northern part of the state. She agreed to have sex with the defendant and in a subsequent chat he discussed the possibility of traveling to meet her in a couple of weeks, but no arrangements were made. He was then arrested.
He was charged with violating 18 U.S.C. § 2422(b), which "which, so far as bears on this case, forbids knowingly attempting to persuade, induce, entice, or coerce a person under 18 to engage either in prostitution or in any sexual activity for which one could be charged with a criminal offense."
So, here it is: 1) No sex; 2) no contact; 3) just words. Posner, to his credit, takes a break from writing articles which explain why the executive should be able to detain random people (even partners at large law firms) without judicial review to write a quite coherent opinion about the law of the "substantial step."
First, he explains why the criminal law and tort law of "attempt" and "substantial steps" are different. But, even though the criminal law intends to reduce "dangerousness" Postner writes that "A person who demonstrates by his conduct that he has the intention and capability of committing a crime is punishable even if his plan was thwarted. The "substantial step" toward completion is the demonstration of dangerousness, and has been usefully described as "You have to do something that makes it reasonably clear that had you not been interrupted or made a mistake—for example, the person you thought you were shooting was actually a clothier's manikin—you would have completed the crime." Therefore:
You are not punished just for saying that you want or even intend to kill someone, because most such talk doesn't lead to action.
Posner explains that usually these stings involve the defendant going to meet the “girl” somewhere. Those, he says, are okay, even though, “It is always possible that had the intended victim been a real girl the defendant would have gotten cold feet at the last minute and not completed the crime even though he was in position to do so. But there is a sufficient likelihood that he would have completed it to allow a jury to deem the visit to meet the pretend girl a substantial step toward completion, and so the visit is conduct enough to make him guilty of an attempt and not merely an intent.”
The government seems to want to draw a line between “harmless banter” (with a fake girl) and “a conversation in which the defendant unmistakably proposes sex.”
But, Posner goes a bit further:
His talk and his sending her a video of himself masturbating (the basis of his unchallenged conviction) for violating 18 U.S.C. § 1470) are equally consistent with his having intended to obtain sexual satisfaction vicariously. There is no indication that he has ever had sex with an underage girl. Indeed, since she furnished no proof of her age, he could not have been sure and may indeed have doubted that she was a girl, or even a woman. He may have thought (this is common in Internet relationships) that they were both enacting a fantasy.
Got it? Playing games on the internet (where all parties are full of it), at least in the Seventh Circuit, is not a crime. Just don’t make plane reservations.
Treating speech (even obscene speech) as the "substantial step" would abolish any requirement of a substantial step. It would imply that if X says to Y, "I'm planning to rob a bank," X has committed the crime of attempted bank robbery, even though X says such things often and never acts.
And, since intent is now really relevant in attempt cases, Posner adds that "that the district judge should not have prevented the psychologist whom the defendant had hired as an
expert witness to testify with respect to the attempt." He explains that this wasn’t testimony as to the ultimate issue, but rather “The psychologist could not have been permitted to testify that the defendant did not intend to have sex with “Abagail,” but he could have testified
that it was unlikely, given the defendant’s psychology, that he would act on his intent.”
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