A very popular sting operation police are using today involves online predators seeking to have sex with children. The sting begins with an officer going on the internet and pretending to be a young child, usually 14 yrs or younger. The officer will make an introduction that gives some personal information like, "14yr old female seeking new friend". Usually several people will respond to the introduction. The officer will then engage in a chat with them. Over a period of time, a predator will become more overt and begin sending signals to the child that leads to a meeting for sex. When the predator shows up, he is arrested. This type of police operation is a very useful tool in catching predators.
A very popular news program NBC's Dateline "To Catch a Predator" with Chris Hansen has brought to the forefront the problem we have with sexual predators exploiting and abusing our youth. "To Catch a Predator" shows how easy it is for these pedophiles to contact and arrange liaisons with our children through the internet. The premise of the show is to catch adults who come to a home with the belief that they are going to have sex with a young (usually 14yrs old or younger) teenager. The person they were really chatting with is an adult. The predator arrives, Chris Hansen confronts him, and he is then arrested by police for attempting to engage in lewd acts with a minor. Predators know how gullible and trusting our children are and exploit it for their own sexual deviant behaviors and fantasies. This is nothing new. Adults have always committed lewd acts with children. The internet, however, has made it infinitely easier for a predator to find and seduce victims. The instrument used for their exploitation is an online chat room. Children freely visit chat rooms and participate on a regular basis. Many of them are so comfortable in chat rooms that they become more and more trusting. They often exchange personal information and photos with other members they feel they can trust. This is the mistake that gets them ensnared by sexual predators.
Friendships made in chat rooms can seem as real as true inter-personal friendships developed at school, at work, or any other place. The problem is chat rooms are created in a cyber-world, not the real world. When a person sits in front of a computer, he can be anyone he wants to be. He can create any persona his wildest imagination can envision. Predators prowl through chat rooms looking for potential victims. Predators watch the chats looking for children exchanging personal information; their age, the town they live in, the school they attend, the place they work. The goal for the predator is to find a victim that is relatively close and meets the criteria for his fantasy. Each predator has his own criteria; male or female, within a certain range of age, physical characteristics, personal interests, etcetera. A predator that befriends a child in a chat room is accomplishing an exercise in fantasy role-playing with the goal of fulfilling a real-world sexual encounter with the child. Most of the time the predator wants only sex with the victim, which is devastating enough. Some of them, however, want to fulfill their sexual or other needs through inflicting pain or killing them. The game, the hunt, the rewards are so alluring to predators that they will risk spending many years in prison. This makes them potentially very dangerous.
The prevalence of sexual predators on the internet is astounding, as Chris Hansen demonstrated over the last three years. He has contacted over 200 predators during his investigations for Dateline. Online sexual predators must be dealt with head on by police. We must find them and get them off the streets. We must be smart about it, however, and do it in a manner that will withstand all legal challenges.
Generally, police officers are limited to two options when dealing with online sexual predators. The first is to wait for the victim and/or the victim's parents to contact the police and report that a predator had successfully manipulated and sexually abused the victim. The officers then have to initiate an investigation, obtain a rape kit, process the crime scene if possible, find the suspect who may be in another state, conduct interviews, submit evidence to the crime lab, and finally present charges. The investigation is laborious and ultimately dependent on a victim that, do to immaturity, shyness, embarrassment or other reasons, may prove to be a poor witness. The other option is the online sting. The online sting is the most effective way to hunt and capture predators while eliminating the trauma suffered on a young victim. I am sure every officer would agree that catching the predator before he actually harms a child is much better than waiting until he sexually abuses the child.
Federal, state, and local law enforcement agencies across the country are utilizing the online predator sting. And, as such, have met with extensive legal challenge from defense attorneys representing defendants arrested in these stings. Some of the challenges have succeeded, and some have not. There are a couple of points of law that are giving rise to the challenges. Investigating officers need to be familiar with these challenges and be prepared to defend against them.
The primary challenge that is raised by defense attorneys is the fact that there is no real minor child that is a victim. It is very important for a law enforcement agency to clearly understand the wording of a law under which a person caught in a sting will be charged. The wording may preclude the charging of a predator if there is no real targeted victim. The 11th Circuit court addressed this in the Root [1] case that the words "attempts to" added to the law removes the obstacle of having to complete the offense with an actual child as long as the defendant believes a child was involved. The 5th Circuit court stated that, "factual impossibility is not a defense to the crime if the defendant could have committed the crime had the attendant circumstances been as the actor believed them to be, while legal impossibility is where the defendant's actions, even if carried out, do not constitute a crime." The 5th Circuit court also listed two elements the government must prove to make an "attempt" case: "[F]irst,[the government must prove] that the defendant acted with the kind of culpability otherwise required for the commission of the underlying substantive offense, and, second, that the defendant had engaged in conduct which constitutes a substantial step toward the commission of the crime. The substantial step must be conduct which strongly corroborates the firmness of defendant's criminal attempt." [2] To paraphrase all this, the law needs to be written in such a way as to allow for the prosecution of an attempt to commit the crime, and, the defendant has to believe that a minor child is involved as well as take actions to fulfill the other elements of the crime.
Entrapment is the next defense often attempted against this type of operation. Police must clearly understand what Entrapment is, because it is easy to cross the line and blow a case. Entrapment is, "When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor." [3] The officer pretending to be a child online must be very careful to let the predator lead the conversation and make the suggestions, requests, and sexual overtures. The predator must initiate each step along the path through the elements of the crime without first being coaxed or influenced to do so by the officer. No officer should want to entice an innocent person who has no thought or design of committing an offense into breaking the law. In a way, that is the very technique the predator uses on a child.
Protecting our children is a compelling motivation for police to catch these predators. Many of the courts have also recognized the necessity to give law enforcement latitude in these investigations. The ultimate goal is to make cyberspace a high-risk hunting place for pedophiles who prey on our young.
[1] Root, 296 F.3d at 1227 (11th Cir)
[2] Farner, 251 F.3d at 512 (5th Cir.)