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Can I be prosecuted for just for talking about having sex with a minor over the internet?


Yes, you can. The prosecution of those looking to have sex with a minor over the internet has exploded in recent years. These cases are easy to prosecute: police officers pose as underage minors (or the minor's parents) and get people to make incriminating statements. Then, they arrest them; the prison sentences are long. And the entire crime is a complete fiction, since there was no possibility for the minors or those seeking them out to actually meet, because the 'minors' are actually police officers. But how can someone be prosecuted for attempting to commit a crime which could actually never come to pass? As a Jacksonville criminal defense attorney, I have seen it happen.

Consider the recent case of U.S. v. Howard, decided by the Fifth Circuit Court of Appeals on September 9, 2014. Jeffrey Howard, an unemployed and bedridden man in California, began corresponding on a social networking website with a woman in Texas. Howard asked if the woman knew of a fifteen year old girl he could have sex with. The woman went to the police. The police created a fictitious persona, complete with a fake e-mail address and a phony Facebook profile. The fictitious person (an undercover cop) told Howard she could get a fifteen year old girl for him to have sex with. The undercover cop and Howard went back and forth for three weeks. The cop tried to get Howard to book a flight to Texas, but Howard (who was really all talk) refused. Finally, the cop, pressing Howard, said "take it or leave it", and Howard responded "okay, I'll leave it." This message was the last time Howard communicated with the undercover cop. Three months later, Howard was arrested in California, tried and convicted in Texas for the crime of attempt to knowingly persuade, induce, entice, or coerce a minor to engage in illegal sexual activity.

Did Howard's conduct cross the line from "preparation" to "attempt"? Howard's lawyer argued at his trial that Howard did not take a "substantial step" and that his conduct amounted to mere preparation. The trial court rejected Howard's arguments, because Howard sent a picture of his penis to the undercover cop and asked her to show it to the fictional minor. The trial court believed this to be a "substantial step." Howard was sentenced to the mandatory minimum sentence of 120 months imprisonment (10 years)!

In federal court, one must take a "substantial step' in order to be convicted of an attempt to commit a crime. The "substantial step" must be conduct that strongly corroborates the firmness of one's criminal intent. Acts which are merely preparatory are not enough. Howard argued that his actions-talking to an undercover cop for less than a month-can best be described as mere preparation. The prosecutor's argued otherwise, citing U.S. v. Lee, a Florida case (11th. Circuit, 2010) for the proposition that firm plans to travel are not required.

Prosecutions like this one ordinarily are the result of sting operations. The accused discusses a specific meeting place with an undercover cop posing as a minor (or a minor's parent). The accused shows up at the meeting place and is arrested. The courts have held that traveling to a meeting place is a substantial step toward the commission of a crime and sufficient to establish attempt. Here in Florida, the court has held that it is sufficient to prosecute someone who makes arrangements to meet a minor to engage in sexual activity, whether or not the minor actually exists. U.S. v. Yost (11th. Circuit, 2007). The appeals court in Texas affirmed Howard's conviction, which means he spends the next 10 years in prison.

Lesson Learned:

While no one has sympathy for those looking to have sex with minors, these decisions , in my opinion, come dangerously close-or cross the line- from punishing action to punishing mere bad thoughts. Howard had absolutely no intent to travel from California to Texas to have sex with a minor. He had neither the financial nor physical ability to travel. Like many in his position, he was merely passing the time - unemployed and disabled - on a home computer, In no other area of the law are bad thoughts punished with substantial prison time. To those who would troll for sex with minors over the internet-don't even think about it. In nearly every case, the person you're communicating with is a police officer.

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