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‘Sexual activity’ requires contact

Arguably, any 18 year old in Wisconsin who uses the Internet to arrange a consensual sexual encounter with a 17 year old faces 10 years to life in federal prison.

But dicta in an April 7 opinion from the 7th Circuit suggests that is not the case.

The court suggested that, to support a conviction for using interstate commerce to entice a minor to engage in unlawful sexual activity, the underlying activity must be criminal under federal, rather than state law.

18 U.S.C. 2422(b) provides, “Whoever, 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.”

The court addressed the definitions of two terms in the statute: “sexual activity” and “criminal offense.”

The court held that “sexual activity” is synonymous with “sexual act,” and thus, physical contact must be an element of the underlying crime.

In most prosecutions under the statute, however, this element will not be an issue, because the defendant’s objectives usually do include sexual contact with the victim.

However, the discussion of “criminal offense” may provide a defense to defendants charged under the statute if the underlying crime is only illegal under state law.

Jeffrey P. Taylor was charged under the statute after he masturbated in front of a webcam, believing that a 13-year-old girl was watching online. The “girl” was actually an adult police officer.

The underlying “criminal offense” supporting the federal charge was an Indiana statute making it a crime to masturbate in the presence of a child less than 14 years of age.

Taylor was convicted, but the 7th Circuit reversed in an opinion by Judge Richard Posner.

The court first addressed the meaning of the term, “criminal offense.”

The court acknowledged that, in U.S. v. Mannava, 565 F.3d 412 (7th Cir. 2009), it assumed that the term referred to either a state or federal sex crime.

But the court questioned the validity of that assumption, noting that the statute does not say that explicitly. In contrast, the RICO statute, 18 U.S.C. 1959(a), does say that the predicate offense supporting a conviction for racketeering may be either federal or state.

The court added that it would be a “questionable practice” to include state offenses in this definition, noting that Congress cannot know in advance what conduct a state will make criminal, and that conviction carries a 10-year minimum prison sentence.

But because Taylor did not raise the definition of “criminal offense” as a defense, the court moved on to the defense he did raise – the meaning of “sexual activity.”

The court acknowledged that “sexual activity” could be interpreted more broadly than “sexual act.” But it declined to do so, noting that some definitions of the term are broad enough to include flirting.

Interpreting “sexual activity” to be synonymous with “sexual act,” the court held that it cannot include masturbation, because the definition of “sexual act” requires contact between the defendant and victim. Accordingly, the court reversed Taylor’s conviction.

Judge Daniel Manion wrote a concurrence, opining that Taylor could not be guilty of the federal offense, because Taylor was not guilty of any state offense. Manion concluded that Taylor’s acts, which were only transmitted over a webcam, were not committed in the “presence” of the viewer.

Analysis

The court’s dicta concerning the meaning of “criminal offense” is significant because of the difference in the age of consent.

Under Wisconsin law, the age of consent is 18. Consensual sexual contact with a person 16 or 17 years of age is a “criminal offense,” albeit a misdemeanor only.

As a result, if “criminal offense” includes state crimes, anyone who uses the internet to facilitate consensual sexual contact with a 16- or 17-year-old is technically subject to a 10-year mandatory minimum, even though the maximum for the underlying conduct under Wisconsin law is only nine months in jail.

But under federal law, 16 is the age of consent. If “criminal offense” is limited to federal crimes, then the statute applies only if the child is 15 years old or younger, and the defendant is at least four years older than the child.

What the Court Held

Case: U.S. v. Taylor, No. 10-2715

Issue: What is the definition of “sexual activity” in 18 U.S.C. 2422?

Holding: “Sexual activity” is synonymous with “sexual act,” a term that requires physical contact.

David Ziemer can be reached at david.ziemer@wislawjournal.

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