To Catch a Predator . . . Must There Be Prey?

We’re probably all familiar with the NBC Dateline “To Catch a Predator” programs.

In these Dateline episodes, reporter Chris Hansen films interviews with men who have shown up at a location intending to have sex with what they believe is a minor male or female.

The men are the targets of a “sting” operation. They've actually been chatting online with someone from the group Perverted Justice.

As one court noted, Perverted Justice “is an organization dedicated to exposing child molesters” which NBC pays for its contributions to the Dateline episodes. (United States v. Kaye, 451 F. Supp.2d 775 (E.D. Va. 2006)).

The Dateline-Perverted Justice collaboration is just one, isolated instance of a “sting” model that has become popular in the United States. Police officers in jurisdictions all over the country (including one police department in a city about 30 miles from where I am writing this) go online and pretend to be barely adolescent females or males. The purpose is to identify pedophiles who will try to lure the children to a meeting for the purposes of having sex. I have spoken to officers who have run stings like these, and they tell me “it’s shooting fish in a barrel,” i.e., that once they go into an appropriate chat room pretending to be barely-pubescent “Melissa” or “Heather,” the pedophiles pounce almost immediately.

The defendants in these cases will be prosecuted for what they have done. The charge, which takes slightly different forms in various states and at the federal level, is “luring” or enticing a child into a sexual rendezvous. I just read a relatively recent decision from a Virginia federal district court in which the defendant used a common argument in an effort to have the charges against him dismissed. (United States v. Kaye, 451 F. Supp.2d 775 (E.D. Va. 2006)).

This defendant, like many before him, argued that the charges against him should be dismissed because there was no child. That is, he said he was charged with luring or enticing a “child” into a sexual rendezvous, but the online chats he had were not with a child; they were with an adult representative of Perverted Justice. He argued, therefore, that the charges could not stand because no child was involved in what he did, and no child was ever in any danger of being sexually exploited.

That is a logical argument, and has succeeded on occasion, especially under older statutes which actually require that there have been a “child.” It fails, though, when the charges are brought (i) under a statute which makes the act of luring or enticing a child to a sexual rendezvous a crime in and of itself or (ii) under a provision which makes it a crime to attempt to lure or entice a child to a sexual rendezvous. Neither of these offenses requires that there have actually been a child victim. They focus on what the defendant intended to do, so if the evidence shows that the defendant believed he was corresponding with a child and if the defendant used that correspondence to entice what he truly believed was a child to a sexual rendezvous, then the defendant has committed this crime. It is irrelevant that he was actually corresponding with, say, a 45 year old male detective or a 30 year old female representative of Perverted Justice.

You might wonder why the law finds it necessary to adopt statutes which criminalize conduct that is impossible, which is the case here. As Kaye argued in the case I cited above, based on the facts involved in that instance it was both “factually and legally impossible” for him ever to have actually had sex with a minor, more precisely, with the minor male he apparently believed he was corresponding with. And Kaye is right; these statutes do criminalize conduct that is, at least in the contexts of these stings, totally impossible.

Why do that? The rationale is based in what the law calls inchoate, or incomplete, crimes. Attempt is an inchoate crime; it criminalizes unconsummated efforts toward the commission of a crime. So, say the FBI has learned that John Doe intends to rob the First National Bank. The FBI observes Doe as he “cases” the bank and makes other preparations and tracks him as he heads to the bank on the day he intends to commit the crime. FBI agents arrest him outside the bank before he is even able to begin the process of robbing it. Doe will be charged with attempting to rob the bank; he cannot be charged with robbing the bank because he never got the chance to do that.

The law criminalizes attempts on the theory that it protects public safety. If we did not criminalize attempts, the FBI would have to wait for Doe to rob the bank and then try to arrest him afterward. Aside from letting him take money that is not his, this could also expose people in the bank to the risk of death or serious injury if something went wrong in the robbery or if Doe simply became trigger-happy. The law says it is better to have a repertoire of inchoate offenses – like attempt in this scenario and like the luring or enticing offenses I noted above – to let law enforcement intervene and head off crime before it occurs.

Now, some claim that stings like those the Dateline crew films go too far . . . that they essentially represent the manufacture of a crime. Those who make this argument would say that the people, like Kaye, who are caught in the luring and enticing stings are not like Doe because they had not independently embarked on a course of criminal conduct. The critics of these stings say that law enforcement has played a much more active role in creating these crimes than in the bank robbery scenario I outlined above.

Advocates of the stings say they are taking a pro-active approach to protecting children, and that every sting represents the interception of what could have been a real crime.