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Tennessee Police Officer Pleads Guilty to Federal Enticement Charges Involving 2 Minors

August 15, 2011, by The McKellar Law Firm, PLLC

According to a press release from the U.S. Attorney's Office for the Eastern District of Tennessee, a Deputy Sheriff in Grainger County, Tennessee has pled guilty to contacting 2 female minors in order to entice them to engage in sexual intercourse with him. The girls were 13 and 16 years old.

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Enticing a minor to engage in any sexual activity is an offense under 18 U.S.C. § 2422(b). According to subsection (b) of the statute, any person who uses "the mail or any facility or means of interstate or foreign commerce, ... [to] knowingly persuade[], induce[], entice[], or coerce[] any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be ... imprisoned not less than 10 years or for life."

On top of actually calling a minor to entice them to engage in illegal sexual activity like the deputy above, case law has shown that enticing a minor via the internet can also satisfy the statute. It also does not matter if the person enticed is actually a minor. In U.S. v. Kaye, 451 F.Supp.2d 775 (2006), the defendant was found guilty of enticing a minor to engage in a sexual act even though he was actually conversing with an undercover agent posing as a minor on an internet chat site. While the defendant tried to argue that he did not violate the statute since his activity was discovered during a sting operation where no minors were actually involved, the court did not agree with his position. Quoting the Virginia Supreme Court, "[w]hether the targeted victim is a child or an undercover agent, the defendant's conduct, intent, culpability, and dangerousness are all exactly the same." Id. at *2. This case is also an example of how this statute is used in the context of sting operations conducted by Federal agents to prevent the sexual abuse of children who use the internet.

Also, merely talking to a minor with the intent to persuade or attempt to persuade is enough to be indicted under 18 U.S.C. § 2422. No intent to actually perform a sexual act following persuasion needs to be found. In U.S. v. Bailey, 228 F.3d 637 (6th Cir. 2000), the defendant argued that in order to be found guilty under the statute, actual intent to perform the illegal sexual act should be found since finding otherwise would not only criminalize "mere sexual banter on the internet," it would also violate the right of free speech. Id. at 638. The Sixth Circuit, on the other hand, ruled that conviction under the statute "only requires a finding that the defendant had an intent to persuade or attempt to persuade" since "Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves." Id.