Entrapment and the Culture of Desire

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.

Comments: (4)

  • Yes, child porn and underage sex do appear to be t...
    Yes, child porn and underage sex do appear to be the new crack cocaine. I've noticed this in the news. There's another story on almost a weekly basis of some poor unfortunate slob who made a silly mistake and wound up in handcuffs. It's absurd. It is the new hysteria sweeping the land.
    Personally, I think entrapment itself should be made a 'crime'. Those officials engaged in the illegal and unlawful game of entrapment should themselves be arrested, charged, tried, and sentenced to lengthy prison sentences, by preferably female judges, of course. And their probation officers should be female as well. Ha!
    Undercover female cops tried to entrap me in New Haven once. Fortunately, I had my wits about me this one time. Still, it took me an hour to weasel out of what could have been a totally disastrous situation. Overtures were made to me and rebuffed by me, definitively. I don't think the public-at-large has a clue as to the big bag of dirty tricks utilized by dirty, underhanded, low-life cops in some jurisdictions. (Disclosure: Not all cops are 'bad'. Certainly not. Some are actually 'good'.)
    These things do appear to go in cycles. In any case, you have nothing to fear but Law Enforcement itself, as we slide irrevocably into a police state. Hint: If someone you don't know invites you to meet them in a motel in New Hampshire for illicit purposes, don't do it. The State Police in the Live-Free-Or-Die state are busy like bees these days rounding up a tsunami of virtual sex offenders on the loose, ruining the morals of children and young women everywhere. How totally ironic?!?
    P.S., if you're a priest, just say No to online chatting and solicitations. The lousy cops just love to slam the innocent, pure priests in N.H., the libertarian state par excellence.
    Posted on May 17, 2010 at 1:44 am by William Doriss
  • While your point is well taken, and perhaps a bett...
    While your point is well taken, and perhaps a better example than the runway are the beauty pageants where 8 year olds dress in sexy outfits and dance provocatively, while their parents deny any connection to enticing pedophilia.
    That said, when it comes to adults who either solicit, or acquiesce in the enticement, of teenaged girls, there is a line crossed that isn't so easily excused. We have free will and modicum of intelligence. We can chose not to engage with young girls, whether with harmful intentions or otherwise. There is a line of sick conduct that need not be crossed, no matter how enticing the come-ons may be.
    Let's not allow the severity of the penalty conflate the issue of the propriety of the conduct. Sane, healthy adults do not seek to have sex with children, nor are the susceptible to being enticed into such a situation.
    Posted on May 17, 2010 at 2:59 am by shg
  • I feel your pain, shg. However, am I to presuppose...
    I feel your pain, shg. However, am I to presuppose that you would consign 'unhealthy adults' to lengthy prison sentences when they have in actuality committed no crime and done nothing wrong? In other words, where is the crime? Where is the victim and the victimization? If I am not mistaken: Where there is no victim (with v. few exceptions), and/or the body cannot be found (in the case of murder), well then there is no 'crime', simpley.
    The State of Konnecticut actually knows this as a matter of fact in the law, and acts accordingly in the toughest of cases. I personally know of a CT murder case where the victim's body did turn up belatedly. The State knows full, and I personally know, who most likely or probably committed this murder, but BECAUSE of the belateness of the discovery, which erased all DNA and any other potential evidence, the State does not act against the murderer; it does not have enough evidence to come into court and get a conviction in the real world of current jurisprudence, without lying and fabricating evidence--which it has chosen not to do in over 20 years. (However, it's not over till it's over, as we have seen in Skakel and Grant.)
    Furthermore--more in line with my own CT cases--there is another case in Stamford where the State knows full-well who the perpetrator is--she is not in hiding--but will not press charges, for reasons that are totally inexplicable to me. Somebody has been attacked and seriously injured for life, and the State WILL NOT ACT against the known perpetrator.
    The State picks, as another commenter posted earlier, the 'low-hanging fruit', those cases which are easy to get a plea bargain out of, or what they think is an easy conviction. In my own cases, the State hit me with 69 years. They got 2 years, suspended. They wasted your time, my time, and the taxpayer's money over a trifle that could very easily have been settled with a civil agreement or judgment. But no, the State wanted to paint an innocent man--a veteran, a father, a businessman with no priors and a senior citizen--a 'violent' criminal to be locked up for 3 life sentences. (A 'life sentence' is 25 years, give or take.)
    It's a farce. It does not work, simpley. It does keep a lot of judicial employees, corrections officers, probation officers, police officers, halfway house operators, drug counselors, psychologists, appellate judges and Habeas Corpus people busily employed, feeding at the Public Trough. My own opinion: The State of CT is operating nothing short of a criminal justice 'Ponzi Scheme', as previously posted by me on this blogsite.
    Entrapment is wrong. Lustful thinking and fantasizing are protected under our U.S. Constitution. That is affirmative. No victim, no crime!?! If you cannot possibly to do the crime, you should not be forced to do the time? That's the flip-side of a well-worn cliche. Nonetheless equally true.
    Posted on May 17, 2010 at 7:21 am by William Doriss
  • Here's the cool part: the cops get to get their ro...
    Here's the cool part: the cops get to get their rocks off once. THEN the arrest the guy who helped them, which gets their rocks off AGAIN!
    Posted on May 24, 2010 at 12:28 pm by Rick Horowitz

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