Solicitation Of A Child By Computer and Law Enforcement Entrapment Defense

I recently handled a Solicitation of a Child By Computer case in a county where adult law enforcement officers are pretending to be underage girls on-line. They are posting Craigslist ads seeking the company of “older” men for sexual relationships.

Like it or not, it is perfectly legal for law enforcement officers to pretend to be an underage teenager in order to entice adults (usually men) to engage in a sexual dialogue online with the intent to commit an unlawful sex act. The Courts have determined that it is basically irrelevant that the “minor victim” in question never really existed. It is enough that the person charged with the crime believed the “minor victim” existed.

Soliciting a child by computer and appearing at the prearranged meeting is a Class G felony. This carries a maximum punishment of 47 months. Solicitation of a child by computer without appearing is a Class H felony. This carries a maximum sentence of 39 months. Both the Class G and the Class H convictions require registry as a sex offender.

NCGS 14-202.3:

The elements of Solicitation Of A Child By Computer Or Certain Other Electronic Devices to Commit An Unlawful Sex Act are as follows:

A person is guilty of solicitation of a child by computer if the person is 16 years of age or older;
1. and the person knowingly, with the intent to commit an unlawful sex act;
2. entices, advises, coerces, orders or commands, by means of a computer or any
3. other device capable of electronic data storage or transmission;
4. a child which is less than 16 years of age and at least five years younger than the defendant, or a person the defendant believes to be a child who is less than 16 years of age and who the defendant believes to be at least five years younger than the defendant;
5. to meet with the defendant or any other person for the purpose of committing an unlawful sex act.
Consent is not a defense to a charge under this section.

Entrapment Defense

Of course, the State has the burden of proof  beyond a reasonable doubt. They must prove all of the elements of the crime. If allowed, an Entrapment defense may be established as a matter of law.  A jury instruction of Entrapment can be used where a defendant meets a two pronged test:
“1)That there were acts of persuasion, trickery or fraud carried out by law enforcement officers or their agents to induce the Defendant to commit a crime and;
2) The origin of the intent or lack of criminal predisposition of the Defendant.” State v. Luster, 306 N.C. 566 (1982)

It can be difficult to get a Judge to permit a jury instruction on an Entrapment defense due to the above reference criteria. If a Judge does allow the instruction, the burden of proof shifts to the Defendant.

You must also consider the extreme difficulty of picking a jury that will not be prejudicial against a Defendant accused of this type of crime. Having handled many sex-offense related crimes, I’ve experienced the stigma and prejudice first hand in trying to select an unbiased jury. Many jurors conceive a predisposed opinion of guilt just based on the nature of the crime, even before the trial starts. I refer to this as the “boogie-man” stigma and it is difficult to find an impartial jury who will listen to all of the evidence before determining a Defendant’s guilt.

I’ve spoken to an undercover detective who has been doing this type of undercover sting operation for years. He reports that it still shocks him at how many responses he gets when he posts his ads pretending to be a 14 yr old girl looking for an older man. He agrees that it’s like shooting fish in a barrel.  The ease and frequency that he is able to get men to respond to his fake ads and then commit the crime of solicitation of a child by computer is mind-boggling. The ramifications of falling for this scheme are steep and all-encompassing. Not only will you most likely end up a convicted felon, but you will also required to be registered with the sex offender registry, which is often a lifetime sentence.