The split between the 7th Circuit and other U.S. courts of appeal over whether conviction under 18 U.S.C. 2422(b) requires an intent to complete an illegal sexual act with a minor
Section 2422(b) of Title 18, United States Code, provides, in pertinent part: “Whoever, using … any … means of interstate … commerce … [e.g., an internet chat room] knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in … 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.”
The Seventh Circuit recently held in United States v. Gladish, 536 F.3d 646 (7th Cir. 2008), that, to be guilty of attempting to persuade a minor to engage in criminal sexual activity in violation of 18 U.S.C. 2422(b), “you must intend the completed crime” and take a “substantial step” toward its completion, and that explicit sexual talk on the internet (even with a person believed to be a minor) does not, by itself, amount to this kind of “substantial step.” This Seventh Circuit decision conflicts with the decisions of other U.S. courts of appeals on the same important matter. See United States v. Brand, 467 F.3d 179, 202 (2nd Cir. 2006); United States v. Thomas, 410 F.3d 1235, 1244 (10th Cir. 2005); United States v. Patten, 397 F.3d 1100, 1103 (8th Cir. 2005); United States v. Murrell, 368 F.3d 1283, 1286 (11th Cir. 2004); United States v. Bailey, 228 F.3d 637, 639 (6th Cir. 2000); United States v. Dwinells, 508 F.3d 63, 68-72 (1st Cir. 2007). But cf. United States v. Meek, 366 F.3d 705, 718 (9th Cir. 2004); United States v. Goetzke, 494 F.3d 1231, 1236 (9th Cir. 2007); United States v. Farner, 251 F.3d 510, 513 (5th Cir. 2001).
In United States v. Bailey, for example, the Sixth Circuit rejected the defendant’s argument that 2422(b) “requires the specific intent to commit illegal sexual acts rather than just the intent to persuade or solicit the minor victim to commit sexual acts.” The defendant had complained that “the trial court erroneously charged the jury the latter, rather than requiring a finding by the jury of an intent to commit the sexual act itself with the minor.” The Sixth Circuit held that “the intent to persuade and the follow-up intent to perform the act after persuasion … are two clearly separate and different intents and the Congress has made a clear choice to criminalize persuasion and the attempt to persuade, not the performance of the sexual acts themselves. Hence, a conviction under the statute only requires a finding that the defendant had an intent to persuade or to attempt to persuade.”
Despite the number of courts of appeals that have taken a position on this issue contrary to that of the Seventh Circuit in Gladish, it is very far from clear that the Seventh Circuit is wrong and the other courts are right in their respective interpretations of the language of 2422(b). Even if 2422(b) is interpreted to require an intent to actually engage in sexual activity with a minor, its incorporation of state criminal statutes (as the predicate for establishing that the intended sexual activity is activity “for which any person can be charged with a criminal offense”) already contains absurdities that make a mockery of the Eighth Amendment.
For instance, an eighteen-year-old who actually performs or submits with sexual intent to any fondling or touching with a fifteen-year-old commits a Class D Felony in Indiana. The maximum sentence for a Class D felony is 3 years, with 1 ½ years being the advisory sentence, and with any or all of the sentence suspendible. On the other hand, if that eighteen-year-old attempted in an internet chat room to persuade a fifteen-year-old to engage in fondling or touching, without success, he or she could be charged and convicted under 2422(b) and sentenced to the mandatory minimum ten years or even life imprisonment. That is, unsuccessfully attempting the crime would result in a minimum prison sentence in federal court more than three times greater than the maximum prison sentence in state court for actually committing the very same crime, not even counting the fact that a 3 year prison sentence in an Indiana state court actually means a 1 ½ year prison sentence with credit for good behavior.
As absurd as this result already is, it is beyond absurd if the eighteen-year-old doesn’t even have to intend to actually engage in sexual fondling or touching with the fifteen-year-old in order to be convicted and sentenced under 2422(b).
If the intent required for conviction under 2422(b) is the intent to complete an illegal sex act, as Gladish holds, then a trial court must charge the jury with finding an intent to commit the sexual act itself with a minor, rather than a mere “intent to persuade,” in order to convict under 2422(b). Given the obvious (and possibly unconstitutional) vagueness in the statutory language, such an instruction would almost certainly make a significant difference in the outcomes of many trials.
Let’s hope the U.S. Supreme Court has and takes the opportunity soon to set the courts of appeal straight on this issue.