Wednesday, October 24, 2007

Soliciting sex from underage law enforcement decoys is against the law

It is against Federal law to attempt to solicit sex from minors. In a ruling handed down on October 22, the Court of Appeals (Walker, Calabresi and Sack) ruled that this law is violated even when a law enforcement decoy is posing as a 13 year-old girl.

The case is U.S. v. Gagliardi. The statement of facts reprises the usual sting operation in which older men solicit sex over the Internet, only to find that the girl is no girl at all but a decoy:

On July 7, 2005, Gagliardi, then sixty-two years old, entered an Internet chat room called “I Love Older Men” and initiated an instant-message conversation with “Lorie,” an adult government informant posing as a thirteen-year-old girl under the screen name “Teen2HoT4u.” The informant was a private citizen who had previously assisted the Federal Bureau of Investigation (“FBI”) in identifying child predators on the Internet. During this initial conversation, Gagliardi tried to verify that Lorie was in fact thirteen years old and broached the topic of sex. Gagliardi contacted Lorie again on August 29, 2005 and had the first of many online conversations in which he expressed his desire to have sex with her and used sexually explicit language to describe the acts he wished to perform with her. Gagliardi even offered to pay Lorie $200 to have sex with him, before telling her, “I want to meet you . . . make love to me anytime . . . no strings attached.” In the following weeks, Gagliardi repeatedly tried to convince Lorie to meet him in person,
asking her to “tell me where is good for you, I come to pick you up,” or offering to meet her in a public place.

But "Lorie" told Gagliardi that she was afraid to meet him alone and that he should contact her friend "Julie," another law enforcement decoy whom Gagliardi also propositioned. When Gagliardi showed up to meet "Lorie" and "Julie," he encountered law enforcement who arrested him and found two condoms and Viagra in his car.

Joining six other Federal circuit courts on the issue, the Second Circuit ruled that the law does not require that Gagliardi actually communicate with minors. It is enough for him to believe that he was propositioning minors even though he was actually communicating with law enforcement. Gagliardi cannot raise the defense of "factual impossibility" to an attempt charge, and his creative use of the legislative history behind the statute he violated -- always a Hail Mary in these cases -- was rejected as well. Moral of the story: don't try to have sex with minors.

No comments: