Can Internet chat be illegal?
May 8, 2008 by CJ
In the news lately is a story out of Utah where the Utah Supreme Court is debating a case where a man was convicted by a jury of soliciting of a minor.
In the story, James Gallegos was charged under the Utah Internet Enticement Statute for soliciting a minor who was actual an agent with the, ahem, Utah Attorney General’s Internet Crimes Against Children task force. Apparently the chat was fairly graphic, though I couldn’t find it any where. (And seriously makes me wonder if the agent gets off on this, heh.)
Cases like this are difficult, because its one of those situations where to come to the defense of the person is to defend a person who potentially preys on minors. It’d be easy to just crucify the defendent without actually considering the details of the case.
The Internet chat isn’t technically enough to convict him based on the law, but you wouldn’t know it based on the oral argument. The man also went to a meeting with the agent, but drove past.
So why does this matter? It matters because the Chief Justice says at one point.
If a person tells you they’re a minor you’d better log off.
It matters because this is a slippery slope. The State must prove beyond a reasonable doubt that the accused believes the person is a minor, and according to the Assistant Attorney General, sending the accused a picture of an underaged person is enough to prove without a doubt the accused believes it is a minor.
Even I’m sceptical that Gallegos didn’t have the actual intent to meet this underage person, but that doesn’t matter. The fact is, he didn’t meet her. So a convinction in this case would basically mean the man was convincted of cybersex. (Which a jury has already done).
Any one who has spent more than 5 minutes on the Internet knows that it is completely anonymous. Whenever I play an MMO, it is always a great surprise to talk to game friends over voice chat and see who they actually are. Finding out a mature roleplayer is thirteen, finding out a person I thought was a guy was actually a girl (usually reverse), or even finding out a PvP partner is a 60 year old retired grandma. All of those have happened to me, because you just don’t know who the person is on the other side of the “tubes”.
The other problem I have with the case is on the definition of enticement. As the attorney Ann Taliaferro says,
Who says if my speech is tempting enough? Who says if my speech is luring enough? Where is the line drawn?
What happens if the minor entices the adult, or initiates the suggestion to meet? What happens when you don’t know the person is a minor? What happens if the minor pretends to be older? Does it still count? (After all, I’m pretty sure “She told me she was 18″ is not a valid defense for statutory rape, but would it be here?).
It sucks to be routing for a guy who may be a potential child molestor, especially when you consider that if he gets off here, he could actually commit a crime at a future date, but that doesn’t mean we get the right to convict a person for a crime that he didn’t commit.
I’ll keep my eye on the case and try to provide an update when there is some resolution.
h/t DRJ
The chat logs I’ve seen personally with the men and women who participate in online enticement crimes leave very little ground for questions.
Generally the suspects have an age group that they focus their attention on. 8 year old boys. 12 year old girls. I don’t know why, but they generally have a very specific age range that they adhere to.
The pattern is almost always…
[Address age] (How old are you ? )
[Lead in] (Have you ever thought about…? Have you ever wanted to… ? )
[Graphic content] (I want… )
[Hook] (Let’s meet at… I will take you to… I will buy you a present… )
If you are chatting with someone that tells you they are a 10 year old girl who is going on a field trip and you then ask them to engage in anal sex with them in the restroom at the zoo… I’m not really sure why you would be asking this of someone who might be a sixty year old retiree other than that you are hoping this is indeed a 10 year old girl you can prey upon.
If you really must describe in excruciating detail sex acts on the internet, why would you do so to someone who just claimed they are an 11 year old boy? Whether that person is indeed an 11 year old boy or not is not the question here.
If you post plans on the internet about how you are going to shoot everyone at work, or how you are going to blow up your school it is not going to matter much to people whether you actually follow through with the action. The point is to prevent the action from occurring at all.
It is for this very reason that the secret service follow up on any threats, even online threats, about injuring the president. If you talk about it in a chat room or if you post it on a forum, you will be receiving a visit.
The legal level that generally must be met is known as taking a “substantial step”. This is what must be met to be convicted of a crime you have not committed yet.
One definition is: “significant activity undertaken in furtherance of some goal. An act or omission that is a significant part of a series of acts or omissions constituting a course of conduct planned to culminate in the commission of a crime.”
If you show intent (otherwise known as “mens rea” (http://en.wikipedia.org/wiki/Mens_rea) often ranging from “purposely”, “knowingly”, “recklessly” on down to “negligently” ) and take a “substantial step” towards following through on your described action then it is not difficult for the prosecution to convince a jury that you really planned to commit the crime.
The other thing I should note is that sexual intent is NEVER (or should NEVER) be suggested by the investigator. Any sexual conversation must be initiated by the suspect.
True that saying intent to do something illegal would result in a visit from the authorities. But I would argue that telling a friend “I am going to go visit this 10 year olds house and do naughty things to her” is a totally different animal that having a graphic conversation with some one claiming to be a 10-year old girl. It would also be different that having that same online conversation with a 10-year old you know in real life, and especially having that conversation with the boy in person.
There is a wall of anonymity that makes something like this a serious gray area. If that predator had done something as simple as parked the car and walked to the door, then the case would have some actual evidence to prosecute him on. But because he didn’t, the only thing the case is standing on is that online conversation.
And having a graphic conversation with some one claiming to be underage without actually knowing their true and actual age is not a direction that freedom of speech should be going. Listening to the oral argument of the prosecutor and supporting justices, it seems like they are all disappointed that it takes actual evidence and not just a conversation to convict him. (Though all of them try very hard not to actually admit it).
At the end of the day, we can’t just convict some one of a crime even if we know in our hearts they are guilty.
In this one particular case what you are saying may be true. What I am saying is that in the rest of the online sex crimes world it is much more clear. The majority of these suspects also have rape kits they bring with them to their meetings. Bags with materials and tools to assist in the capture, control and disposal of their victim.
No case should stand only on the basis of an internet chat log. This is why I mentioned the substantial step. If the prosecutors have done their job there should be some serious evidence that the suspect has indeed taken a “substantial step” towards committing the crime.
Otherwise you are correct, a person really should not be convicted of a pre-crime (ala Minority Report) without serious consequences for society and potential for abuse by law enforcement.
Your last statement is so important I am going to repeat it here:
“At the end of the day, we can’t just convict some one of a crime even if we know in our hearts they are guilty.”
During my training there was a similar phrase that was drilled in to me.
“There is a big difference between what you know and what you can prove.”
You may KNOW beyond a shadow of a doubt that a person has committed a crime, but unless you can prove it… that person is not going to be convicted of the crime.
This is how it should be. Does this mean that some criminals will get away with a crime and then go on to commit another?
Yes. We recently had a young man who was acquitted of rape and murder charges two years ago commit another rape and murder last fall. This time he wasn’t quite as thorough and THIS TIME he is going to be convicted. Maybe if enough evidence had been found the first time a 40 year old mother would not have been tortured to death… maybe not. It’s far too late now.
Despite this, I must still stand by the conviction that if a person should only be convicted of a crime if standardized levels of proof are met. Justice must be consistent and held to a set of standards.
While this particular case in Utah may have been poorly handled by the investigators and prosecutors, I sincerely hope that the fall out of a ruling will not hinder other good and thorough investigators from doing what they can to protect us from these predators.