BDSM and Prosecutorial Misconduct

As I explained in a post I did a while back, law enforcement officers (assisted, for a while, by NBS’s Chris Hansen) often run “sting” operations that are designed to catch predators. As I noted in that post, the sting takes the form of having a law enforcement officer (an adult, obviously) log into likely chat rooms and pretend to be a minor (usually female, but sometimes they pretend to be a male).

As I explained in that earlier post, the people (usually males) who chat up the “minor” and eventually arrange to meet him/her at some appropriate place for the purpose of having sex are arrested when they show up for the rendezvous. They’re then charged with the crime of “luring” -- or enticing -- a child for sexual purposes; the crime goes by slightly different names in various states, but that’s the essence of it. As you can tell from the name of the crime, it’s what the law calls an inchoate – or incomplete – crime.

The luring/enticing a minor for sexual purposes crime is really a freestanding attempt offense. As I explained in another post, when someone is charged with attempt, they’re being prosecuted for trying to commit a crime (murder, say) but not having succeeded in doing so. (For more on that, see my earlier post.) The enticing/luring a minor offense is a specialized, dedicated attempt crime; the men who fall for these stings are prosecuted for trying to meet a minor and have sex with him/her; since they’re arrested before they can do so (and since there’s no real minor, anyway), they did not, and could not have, succeed.

One more thing and we’ll get to the case this post is about. Defendants in luring/enticing cases often argue that they can’t be prosecuted because they didn’t really lure/entice (or try to lure/entice) a minor because there was no minor; they were corresponding with, say, a 45-year-old male police officer. That doesn’t matter because, as I explained in my earlier post on this crime, since the luring/enticing crime is a type of attempt, it doesn’t matter that there was a real child. You can be charged and convicted as long as the prosecution proves, beyond a reasonable doubt, that you believed you were conversing with a minor and believed you were going to meet that minor and have sex with him or her.

That result follows from the logic of attempt crimes; as I explained, we criminalize attempts on the premise that if you try to commit a crime, you’ve demonstrated that you’re dangerous, and we prosecute you to try to discourage you from being dangerous in the future. We want to give you a wake-up call, basically. So it doesn’t matter that there was no “real” minor.

I rarely do a post on luring/enticing cases because they’re usually so straightforward there aren’t any interesting issues to discuss. This post, though, is about a luring case that has some unusual facts and a couple of interesting legal issues.

The case is State v. Bvocik, 2010 WL 363459 (Wisconsin Court of Appeals 2010), and this is how it arose:

[A] twenty-eight-year-old female, who had a free trial membership in a website devoted to BDSM for consenting adults, contacted [Clifford] Bvocik by email through this site. Bvocik was an active, paid member of the site. Members fill out a `profile’ indicating their specific sexual interests and experience. These profiles are available for other members to peruse. Both the female and Bvocik had a profile, and the female wrote that she had looked up his profile. Bvocik, in turn, looked up the female's profile. The profile listed her birth date as February 14, 1977 (making her twenty-eight years old at the time). Among many other things, she had indicated her interest and intermediate experience in `age-play’ (appearing to be either older or younger than actual). She also indicated that she had experience with sex toys, was a heavy smoker, and was into receiving BDSM. An email relationship evolved. Without getting into specifics, she confirmed her interest in receiving BDSM and he wrote about his interest in giving this type of sex.

[From] the email correspondence . . . it is apparent that Bvocik regularly and relentlessly suggested that the two meet . . . to have this type of sex. . . . [She] was not unresponsive to that idea. But . . . for reasons that were not forthcoming in the [trial] (mainly because [she] never testified), the female wrote Bvocik saying she was underage-asking him to guess her real age. Eventually, [she] said she was, in all `honesty,’ only fourteen. While Bvocik questioned whether she was really underage, he continued to suggest a meeting. Eventually, the female went to the Manitowoc police and told police Bvocik wanted to meet with her even though she had informed him that she was underage. The police took it from there and appropriated [her] online persona for further communications with Bvocik. Subsequently a meeting place, date and time were agreed upon, and Bvocik went to Manitowoc for the meeting. The police were there instead, and he was arrested.

State v. Bvocik, supra. Bvocik was charged with, and ultimately convicted of, violating Wisconsin Statutes § 948.075(1), which provides as follows:

Whoever uses a computerized communication system to communicate with an individual who the actor believes or has reason to believe has not attained the age of 16 years with intent to have sexual contact or sexual intercourse with the individual in violation [Wisconsin Statutes] § 948.02(1) or (2) is guilty of a Class C felony.

Wisconsin Statutes § 948.02(2) makes it a Class C felony for an adult to “have sexual contact or sexual intercourse with a person who has not attained the age of 16 years”.

Bvocik appealed his conviction, claiming prosecutorial misconduct that required the reversal of his conviction. State v. Bvocik, supra. His misconduct argument was based on what happened at trial:

Bvocik's theory of defense was that he could not reasonably have known that the female he was communicating with might be only fourteen years old. His main evidence was the profile that the female had provided, giving her birth date as February 14, 1977, which would have made her twenty-eight years old at the time of the email correspondence. He further contended that the language and tone of the female's email correspondence did nothing to dissuade him from believing that he was dealing with a twenty-eight-year-old woman, even after she claimed to be only fourteen. After all, he contended, the profile of the female said that she was into age-play. He accented her email correspondence where the woman recounted her vast experience in BDSM, her knowledge of sex toys commonly used in the BDSM culture, and her graphic depictions of what she wanted him to do to her. Bvocik's assertion was that this was not the language and knowledge of a fourteen-year-old girl, but rather of an adult.

The State's theory was that Bvocik had reason to believe he was communicating with a fourteen-year-old and pursued a meeting nevertheless. The State used the emails that were in evidence to hammer home the point that the female (and the officers thereafter) repeatedly told him she was only fourteen. . . . Rather than stay away, Bvocik charged ahead and wanted to meet. The State discounted the graphic language used by the female by suggesting that fourteen-year-olds are just as capable of using this language as adults. The State noted that it was not required to prove that Bvocik knew, for certain, that the female involved . . . was fourteen. All the State had to prove under [§ 948.075] was that Bvocik `ha[d] reason to believe’ she was under sixteen. . . .

State v. Bvocik, supra. The “centerpiece of Bvocik’s defense”, therefore, was that the woman’s profile showed that she was “twenty-eight and interested in age-play.” State v. Bvocik, supra. The prosecutor attacked this theory in his “rebuttal closing argument”:

[PROSECUTOR]: Now, there's a couple things I missed. And it didn't even dawn on me until closing arguments. It says right here, she was born February 14, 1977. Whoa, if I am going to make up a date, on a find a man site, for sex, February 14th is the first date I come up with. You know, there's these kind of clues. And then he said.

[DEFENSE ATTORNEY]: Your honor, if I may address-approach the bench?

THE COURT: Okay.

(Side bar taken) [Unrecorded]

[PROSECUTOR]: . . . [W]hether that's a true date or not, if you are looking to see whether someone is being honest with you and it's a site to find a partner, and now they say, I'm not really [who] I said I was, doesn't February 14th sound a little more suspicious than another date. . . .

State v. Bvocik, supra. After closing arguments and after being instructed on the law by the court, the jury retired to deliberate. While deliberating, “the jury asked the trial court the following written question: `How old was the girl who actually initiated and came to the police?’” State v. Bvocik, supra. The question “spawned an interesting discussion between counsel and the trial court.” State v. Bvocik, supra.

THE COURT: . . . I should put on the record that during the State's rebuttal argument, the Court conducted a side bar conference at the request of defense counsel, who pointed out that apparently the actual birthday of the young lady who originally was on the web site that led to the Complaint to the police . . . was February 14 of a different year, but that her actual date of birth was February 14th; is that correct?

[PROSECUTOR]: No, no, I think, actually, if we looked at the report, I think the date of birth she gave was probably right, wasn't it?

[DEFENSE ATTORNEY]: Yes. The point I was making is, [the prosecutor], in his closing, began to indicate that this was a fictitious birth date. And then I pointed out that it was actually her real birth date and he did follow up with, whether it's her birthday or not.

[PROSECUTOR]: And my point was, I wasn't trying to say it was fictitious, it's just, if you're going to come up with a date, that would be it. And so the problem it became was, we never got into evidence any reference to her birth date. . . .

THE COURT: All right. So her-the profile on the . . . website had the correct date, February 14th, but the wrong year?

[PROSECUTOR]: No.

[DEFENSE ATTORNEY]: Everything was correct. Right year, right date, everything.

THE COURT: How did she represent herself as being 28 years old if the date of birth she put on the website showed she was only 14?

[PROSECUTOR]: No, no, no. She said she was 28 on the website. . . .

THE COURT: . . . . Just for my own information . . . what was the age of the actual person that was on this website that brought the Complaint to the police?

[BOTH COUNSEL: 28.]

THE COURT: . . . [S]o . . . you are telling me . . . she told the defendant she was 14 because she thought what?

[PROSECUTOR]: . . . [We] didn't go into all this on the record, but she decides at some point, at least what she represents . . . is, she was a little creeped out, and thought she was in over her head or something. And so she goes and gives a young age, thinking that this person will wander off.

THE COURT: Okay.

[PROSECUTOR]: And then the person didn't wander off, and that bothered her, so she went to the police and said, I told this guy I was 14, or I told him I was underage and he still continued to pursue me.

THE COURT: All right . . . I somewhat understand why the jury is curious. . . . I assume [the jury] believed that there was a 14 year old, or some underage girl who came to the police, although . . . I don't believe any information about the reporter's age, actual age, was placed in the record.

State v. Bvocik, supra (emphasis in the original). No wonder the jury was confused; the judge was confused. After all this, he told the jury “the court was not allowed to comment on the evidence introduced during the trial, the jury continued deliberating and finally returned a verdict of guilty, which Bvocik appealed. State v. Bvocik, supra.

The Court of Appeals found, first, that the prosecutor committed misconduct:

[O]ne of the facts Bvocik relied upon to argue that he had no reason to believe the emails were from a fourteen-year-old girl was the birth date listed in the female's profile making her twenty-eight. Taking aim at this reliance in rebuttal closing argument, the prosecutor suggested to the jury that the profile listing the woman as being twenty-eight and having been born on February 14, 1977, was obviously suspicious, i.e., it was apparent that it was false. The prosecutor was undoubtedly suggesting that any reasonable male in Bvocik's shoes would understand that the profile was possibly false because the listed date, February 14, was Valentine's Day.

In . . . fact, the prosecutor knew . . . that the birth date in the profile was absolutely true. Yet, he suggested to the jury that it might be false. Even after defense counsel called him on it in an unrecorded side-bar, the prosecutor still would not let it go. When the prosecutor resumed his rebuttal, he suggested that the date, whether true or not, should have put Bvocik on notice. Thus, what the prosecutor did here was to suggest that the birth date could be untrue when he knew it was true.

State v. Bvocik, supra. As the court explained in a later passage, by asking the jury to infer that the profile was false, the prosecutor was “able to argue that the profile was not credible and Bvocik should not have relied on it”; and if the jury accepted that the profile was not reliable, it could reject Bvocik’s defense. State v. Bvocik, supra.

As I noted earlier, the court found that this intentional misrepresentation of the facts was prosecutorial misconduct. The court also that the misconduct required it the reversal of Bvocik’s conviction because it “had a great effect on the jury.” State v. Bvocik, supra.

First, . . . the jury's written question to the court convinces us that the prosecutor's remark had the intended effect. The jury wanted to know the correct age of the `girl’. . . . It wanted confirmation that the profile was false. Second, the jury never heard evidence that the woman in question was really twenty-eight. Third, what the jury did hear was a police officer testifying that a woman had come to the police department to complain about a person on the Internet who was trying to have sex with her, even though `she told this person that she was 14 years old.’ Then, when the prosecutor asked the officer where he met with the woman, the officer, who identified himself as the police liaison for the public high school, [said] she “was brought to my office at Lincoln High School and I went on that [website] on the high school computer.. . . And she gave me her password [and] her . . . user name.” That the female was brought to the public high school for a meeting between the police officer simply added to the mystery of [her] age. It would not be outside the realm of speculation for a jury to believe it to be perfectly reasonable that an underage girl would be brought to the local high school's police liaison officer, one with experience talking to juveniles. Fourth, the email correspondence between the female and Bvocik, placed into the record and read to the jury, was also ambiguous about her age because, even though her profile listed her as being twenty-eight, a heavy smoker, amply experienced in BDSM activities, and into age-play, she (and the police officer portraying her thereafter) . . .claimed that in all “honesty” she was only fourteen.

State v. Bvocik, supra. So Bvocik will get a new trial on the charge, or maybe the case will plead out. The prosecutor could drop the charges, but I somehow doubt that’s going to happen. If you want to read the Court of Appeals’ opinion, you can find it here.