The Tricky Defense Of Entrapment

Does it matter if the young woman enticing you to take a trip between the sheets is really a police officer in disguise? When you are arrested for a sex crime, isn't this really entrapment? After all, if all you've done is talk you haven't really done anything illegal yet, right?

The defense of entrapment is far more limited than most folks realize. To succeed, a person putting on such a defense must show that the prohibited conduct of which they are accused is something they only did because the government induced them to do it. In a culture in which desire is used to market almost everything, can anyone real say that the government made me lust?

I see a lot of entrapment claims just now in the area of Internet solicitation scams. There is an active task force in Connecticut of law enforcement officers engaged in salacious talk in chat rooms. They look for a guy taking his libido for a walk on line, tell him they are curious, and then engage in all manner of salacious talk. Depending on how things progress, the defendant is then charged with solicitation of a minor, if he never leaves the comfort of his own home, or attempted risk of injury to a minor, if he shows up at a prearranged assignation. More than one of these young men has asked me whether they weren't entrapped.

Strictly speaking, the answer is no. One Connecticut case described entrapment in the following terms: "Entrapment is the inducement by a public servant or police officer of a person to engage in criminal conduct that had not been contemplated by him, for the sole purpose of instituting criminal prosecution against him. The defense is available to the defendant only if he would not have engaged in the proscribed conduct but for the inducement of the police officer." State v. Grant, 8 Conn.App. 158, 164 (1986).

Plenty of the language in this definition is helpful to the defense. Internet sting operations are designed solely for the purpose of instituting prosecutions. That's why officers troll pretending to be young teens.

But the defense fails typically for several important reasons. First, the defendant is the one who travels to a destination, whether virtual or real, expecting to make contact with a young person ready, willing and able to perform prohibited acts. No one forces the defendant to log on and inquire about the sexual experience of a perfect stranger.

In addition, and here's the real rub, in a society as saturated with desire as ours can anyone really claim that an amorous assignation is not something they've contemplated? We're wire to procreate. Many societies repress and channel this instinct into forms easy to control: we've set these instincts free. Is it any wonder that transgressions are common?

I'm not blaming Madison Avenue entirely. Nothing about the sale of aftershave justifies the molestation of a kindergartner. But the so-called Romeo and Juliet crimes, where a young woman just below the age of consent yields, are troubling. How many models hit the runway before the age of consent? How is it that we can use desire both to entice and to punish? Uncle Sam in drag as a dominatrix?

I raise these broader cultural issues merely to provide a setting for the fact-bound sorts of inquiries that take place in a courtroom. Relaxed though our general standards may be when it comes to sensuality, the law is savage in its consequences for crossing lines drawn by lawmakers. Don't expect to defend successfully a sex case by blaming society. We're expected to toe these lines, even if they make no sense.

It is sadly common when representing a young man in an Internet sting case for me to say something along the following lines: "If it seemed to good to be true, it probably was." The sad fact remains that many young men, when their hormones are revving and raring, have lost just enough self-control to lose the critical insight necessary to distinguish fact from fiction. This should not make them sex offenders; it merely labels them immature.

Which brings us to the following and final point, and it is a point that I have never tested with a jury. Does a young man playing at sex on the computer really intend to engage in criminal conduct?

On the surface, I suppose, the answer is clearly yes. A person soliciting the attentions of a fourteen-year-old for purposes of sex violates the law. But how many people playing games on line really believe that they are interacting with another person?

The Internet informs, but it also depersonalizes. Read the comments section to an on line newspaper sometime and ask yourself the following: How many of these folks would really have said the nasty, vile and intemperate sorts of things they posted if they were required to post their real name? How many folks would own what they write?

Not many, I suspect. I believe the same to be true about young men playing on line Lothario. On line sex has replaced yesteryear's pinup, only the sticky fingers remain the same.

Young men ought not to be headed to prison for flirting with an avatar. Something other than vagrant desire and fantasy unbound should be required to make out a crime. The law as it is now applied makes no effort to determine whether the defendant in solicitation cases actually believes that his lustful interlocutor is really a child, or whether the defendant actually intended to do more than dream about an encounter.

Under current law, you play on line at your risk, and I advise against it for both moral and legal reasons. But I still think the law is wrong. I've seen young men guilty of no more than taking Madison Avenue a little too seriously go to prison. It's madness.

Also listed under: Sex Offenders and Justice

Comments: (2)

  • First off, laws that require people to register ar...
    First off, laws that require people to register are Bills of Attainder (Bills of Pains and Penalties) as determined in US v. Brown (1965) and Yick Wo v. Hopkins (1886).
    And, in Olmstead v. US (1928) @470 it states that:
    "Therefore we must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected, and, to that end, that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crime, when they are the means by which the evidence is to be obtained. If it pays its officers for having got evidence by crime I do not see why it may not as well pay them for getting it in the same way, and I can attach no importance to protestations of disapproval if it knowingly accepts and pays and announces that, in future it will pay for the fruits. We have to choose, and, for my part, I think it a less evil that some criminals should escape than that the Government should play an ignoble part."
    As well as (@472 in the Dissent):
    ""We must never forget," said Mr. Chief Justice Marshall in 17 U. S. 407, "that it is a constitution we are expounding." Since then, this Court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the Fathers could not have dreamed. See Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1, 96 U. S. 9; Northern Pacific Ry. Co. v. North Dakota, 250 U. S. 135; Dakota Central Telephone Co. v. South Dakota, 250 U. S. 163; Brooks v. United States, 267 U. S. 432. We have likewise held that general limitations on the powers of Government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the States from meeting modern conditions by regulations which, "a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive." Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 272 U. S. 387; Buck v. Bell, 274 U.S. 200. Clauses guaranteeing to the individual protection against specific abuses of power must have a similar capacity of adaptation to a changing world. It was with reference to such a clause that this Court said, in Weems v. United States,@ 217 U. S. 349, 217 U. S. 373:
    "Legislation, both statutory and constitutional, is enacted, it is true, from an experience of evils, but its general language should not, therefore, be necessarily confined to the form that evil had theretofore taken. Time works changes, brings into existence new conditions and purposes. Therefore, a principle, to be vital, must be capable of wider application than the mischief which gave it birth. This is peculiarly true of constitutions. They are not ephemeral enactments, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall 'designed to approach immortality as nearly as human institutions can approach it.' The future is their care, and provision for events of good and bad tendencies of which no prophecy can be made. In the application of a constitution, therefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule, a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality.""
    While the last is said in the dissent of the case, the principles are nonetheless concrete and as true today as the day the Constitution was formed.
    Posted on May 17, 2010 at 4:41 am by Avendora
  • Continued... Our Constitutionally protected right...
    Our Constitutionally protected rights must grow with science at the same rate as the ability of the Government to "discover" criminal behavior.
    When Congress passes laws that removes our Constitutionally guaranteed rights, even long after our sentence is complete, and in such a way that is not shared by the rest of society, Bills of Attainder are created.
    These "kids" that you talk about (Romeo and Juliets), they are criminalized for consensual sex. The male (in most cases) is rushed through the system, threatened with up to life in prison (duress) if he doesn't take the plea deal (which is a contract), and then demonized once on the registry. His life is over at the ripe old age of 18.
    Then, laws are passed each and every year that increase his "regulatory" restrictions. His right to see his original sentence carried out to the fullest is denied. His "plea deal" (contract) is continually changed after the fact with no recourse.
    His ability to find housing, a job, or any sort of normalcy is removed. He carries a life sentence whether or not he was sentenced to life.
    Does that fit the crime?
    Does our Constitution mean anything anymore?
    Are we all really just property of the Government and live our lives at their leisure?
    In reality, the Government would not exist at all if it were not for the authority given by the people in the making of the Constitution.
    How can the government seek to own that which gave it power in the first place?
    Can it be argued against the fact that anyone on a "registry" is property of the government and therefore a slave?
    Sorry for the rant, but the issue goes FAR beyond mere entrapment.
    Posted on May 17, 2010 at 4:41 am by Avendora

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