Computer sex crime reversed

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A man who engaged in a sexually explicit on-line chat, and sent a webcam of himself to a person he thought was a 13-year-old girl, has won reversal of his conviction for using a computer to facilitate a child sex crime.

The Wisconsin Court of Appeals on Oct. 2 found that a necessary element of the crime is that the defendant engaged in an act “other than use a computerized communications system,” and that none of the defendant’s acts met this criteria.

Writing for the court, Judge Paul Lundsten wrote, “[The defendant’s] use of his webcam to transmit video of himself was, under the circumstances of this case, nothing more than the use of his computer to communicate with [the girl].”

The defendant, Eric Olson, engaged in an explicit on-line chat session with a special agent posing as an eighth-grade girl with the screen name “nora13queen.”

Olson asked nora13queen if she liked sex, probed for details about her sexual experiences, and asked, “so what would you do for me.”

Olson also used a webcam to transmit a live streaming video of himself shirtless while he and nora13queen continued chatting.

Olson was charged under sec. 948.075, with using a computer to facilitate a child sex crime. After unsuccessfully moving to dismiss the charge, he entered an Alford plea.
He later sought to withdraw the plea, arguing that it lacked a factual basis, but Wood County Circuit Court Judge James M. Mason denied the motion.

Olson appealed, and the Court of Appeals reversed.

The court found that prosecutors must prove two things about the relevant “act” under the statute: that it was intended to effect sexual contact; and that it be something other than “us[ing] a computerized communication system to communicate with the individual.”

It was undisputed that a webcam is part of a “computerized communication system.” Thus, the only question was whether Olson’s use of the webcam was “to communicate” with nora13quen, and thus, not a relevant act.

The court concluded it was.

The court reasoned, “We fail to discern a difference between Olson’s use of the webcam and Olson describing his appearance during his already ongoing chat. Indeed, the State does not offer any argument explaining why the statutory language ‘use a computerized communication system to communicate’ can reasonably be read to exclude all transmissions of a live video of oneself regardless of context.”

The court found the use of the webcam was nothing more than the use of his computer to communicate.

However, the court stressed that, if Olson had sent pornographic material to nora13queen, he could have been prosecuted under a different statute, for exposing a child to harmful material.

Finally, the court distinguished the case of State v. Schulpius, 2006 WI App 263, 298 Wis.2d 155, 726 N.W.2d 706. There, in addition to sending a photograph of a nude male, Schulpius also drove through what he thought was the girl’s neighborhood and purchased condoms.

Because driving and purchasing condoms are both “acts” apart from communicating with a computer, the court found Schulpius distinguishable.

Analysis

In its discussion, the court offers two hypothetical situations, but provides no guidance how it would rule in the situations.

“We take no position on what the proper result would be if nora13queen and Olson agreed to meet and Olson then used his computer to transmit an image of a sign with directions to the meeting spot,” Lundsten wrote. “We also do not take a position on what the proper result would be if Olson had used his computer to purchase and transmit an ‘e-ticket’ for nora13queen to travel to meet Olson.”

However, the plain language of the statute would appear to dictate clear results in both these hypotheticals.

In relevant part, subsec. (3) of the statute provides, “Proof that the actor did an act, other than use a computerized communication system to communicate with the individual, to effect the actor’s intent under sub. (1r) shall be necessary to prove that intent.”
In the first hypothetical, a factual basis would not be present; the transmission of an image with directions would clearly constitute communication with the underage victim, using a computerized communication system.

In the case at bar, the court found no relevant difference between Olson transmitting a webcam and providing a verbal description of his appearance.

Similarly, in the hypothetical, there would be no relevant difference between transmitting an image of a sign, and verbally giving directions to a meeting point.

In the latter hypothetical, however, a factual basis would support the charge. It may be true that the purchase of an e-ticket with a computer would constitute “use [of] a computerized communication system.”

However, it could not plausibly be used “to communicate with the [underage] individual.” Any “communication” would be with the carrier selling the e-ticket. Thus, the act of buying the ticket would satisfy this element of the crime.

Attorney Byron C. Lichstein, of the Frank J. Remington Center, at UW Law School, who represented Olson, agreed in an interview that purchasing an e-ticket would be an act other than communication.

Lichstein noted that the e-ticket hypothetical was raised in the parties’ briefs, with Lichstein arguing that purchasing an e-ticket would go beyond “communication,” because it would be a purchase of goods.

In Olson’s case, in contrast, everything he did was mere computerized communication.