Entrapment In Computer Sex Enticement Cases

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Cases involving law enforcement officers posing as juveniles online are common.  A typical scenario is found in the recent case of State v. Anderson (WD77202) from the Western District of Missouri Court of Appeals, which was decided in May 2015.  In the Anderson case, a law enforcement officer created a female online profile for a dating site, using a profile with the name Kaitlyn that alleged “she” was 19 years old.  The profile was then posted to the site.

Many of these computer “decoy” cases involve scenarios where a law enforcement officer is purporting to be a minor.  The issue then often becomes some version of this question:  did the defendant actively participate in the exchange, or was he tricked into doing something that he might not have done otherwise?

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Failure To Register As A Sex Offender In Missouri Not A Strict Liability Crime

In Missouri, failing to register as a sex offender is a class C felony, pursuant to RSMo. Sections 589.400 and 589.425.  The Missouri Court of Appeals for the Southern District recently had an opportunity to rule on some important aspects of this offense, and reached an interesting conclusion.  The case was State of Missouri v. William Wilder, No. SD33140, on appeal from Wright County, Missouri.  The decision was reached on January 16, 2015.

The background of the case was relatively simple.  On October 22, 2010, Wilder was charged by information with the class C felony of knowingly failing to register as a sex offender (Count I), in violation of sections 589.400 and 589.425; and the class C felony of sexual assault (Count II), in violation of section 566.040.  As the case proceeded to trial, a joint stipulation was entered between the State and the defense.  The stipulation contained the following information:

1.  Records from the State of California show that the defendant, William Wilder, was arrested by the Los Angeles Police Department on September 17, 1979.

2.  The defendant entered into a final plea on October 4, 1979 to counts 1 and 5 (forcible rape).

3.  The defendant was ultimately sentenced to eight (8) years in prison.

4.  The defendant thereafter was notified by the State of California that he must register as a sex offender.

5.  The Notification of Registration Requirement bears the defendant’s signature and right thumbprint and is dated September 17, 1984.

6.  The defendant’s criminal history record shows the defendant was convicted of “Rape with Force” and he was received at a California Penal Institution on March 2, 1982.

7.  On September 23, 2010, Wright County Missouri Deputy Tiffany Butts (Neill) received a report of sexual assault. The alleged victim, [B.R.], reported that the defendant was helping her move on September 3, 2010 and the defendant forced her to have sex with him. [Victim] reported that the defendant again forced her to have sex on September 11, 2010.

8.  The defendant was arrested in Missouri on the forcible rape charge on September 24, 2010 (21 days after the initial alleged rape within Wright County Missouri) and had never registered in Missouri as a sex offender.

9.  That defendant moved from the State of California to the State of Missouri in 1985, after being released from confinement.

10.  That at the time the defendant moved to the State of Missouri, the State of Missouri did not have any statutory requirement for anyone who was a sex offender to register as a sex offender.

11.  That the State of Missouri did not have any statutory requirement to register as a sex offender until 1997. (See Section 589.400 RSMo)

12.  That the defendant was notified upon his arrest to register as a sex offender in the State of Missouri by registering with the Wright County Sheriff’s Department and the defendant has complied with that request.

13.  That the notification that defendant received to register as a sex offender upon his arrest on September 24, 2010 was the first notification that he had received to register as a sex offender since he moved to Missouri in 1985.

Besides this joint stipulation, no other evidence was submitted to the trial court, and no witnesses testified.  In their briefing to the trial court, the parties admitted that when Wilder moved to Missouri in 1985, there was no federal requirement for registration by sex offenders.  After the submission of trial briefs, the court in 2013 entered its “Order,” with findings of fact and conclusions of law, finding Wilder “guilty of the Class C felony of Failing to Register as a Sex Offender, [pursuant] to RSMo. Section 589.425, beyond a reasonable doubt.”  The court sentenced Wilder to prison, but suspended the sentence and put him on probation.

Wilder appealed his case, claiming that the trial court erred in that there was insufficient evidence for the trial court to find that Wilder knowingly failed to register as a sex offender in Missouri under RSMo. Section 589.425.  The appellate court agreed, finding that the critical element that had not been proven was the “knowingly” element.

The court found that a critical element of the “failure to register” statute is the “knowingly” element.  In other words, the State should have proven that the defendant knowingly or deliberately failed to register, after being aware that he had to do so.  A person cannot violate the statute by being negligent, careless, or reckless.

Section 589.425 provides: “A person commits the crime of failing to register as a sex offender when the person is required to register under sections 589.400 to 589.425 and fails to comply with any requirement of sections 589.400 to 589.425.” The State had the burden to show that Wilder knowingly failed to comply with the registration requirement of section 589.400 to 589.425.  This is consistent with the findings of State v. Jacobs, 421 S.W.3d 507, 513 (Mo.App. S.D. 2013) (en banc) and State v. Younger, 386 S.W.3d 848, 853 (Mo.App. W.D. 2012).

The appellate court had to conclude that no evidence was presented that Wilder knowingly failed to register.  Instead, the State claimed that “failing to register” should be seen as a “strict liability” crime; that is, no mental state should need to be proven.  In the State’s view, if you fail to register, you are guilty, period.  The appellate court rejected this view.  It clearly and unequivocally held that the State must prove that a person “knowingly” failed to register.  This clearly shows that the State must first demonstrate that a person knew he had to register, and then deliberately failed to do so.  And this it could not do.  You can’t be guilty of “failing to register” if you didn’t know you were supposed to register.  

In today’s mobile society, this places the burden on the State of actually informing people of their duty to register before trying to prosecute them.  Seen in this light, the Wilder decision is consistent with due process and fundamental fairness.

Read More:  Computer Crimes And Cyber Crimes

Sexting Laws In Kansas And Missouri

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“Sexting” is the term used to describe the sending or receiving of sexually explicit images, usually by means of a hand-held smart phone.  The ready access to photographic technology, and the ease with which photos can now be taken, mean that users of cell phones are more likely to take advantage of the technology.  Cell phones and smart phones are here to stay, and with this presence comes possible dangers.  What may seem funny or amusing is most certainly not.  When minors “sext” photos to others, even photos of themselves, serious criminal issues can be implicated.

“Sexual exploitation of a child” under Kansas law (K.S.A. 21-5510) is the following:

21-5510. Sexual exploitation of a child.  (a) Sexual exploitation of a child is:

(1) Employing, using, persuading, inducing, enticing or coercing a child under 18 years of age, or a person whom the offender believes to be a child under 18 years of age, to engage in sexually explicit conduct with the intent to promote any performance;

(2) possessing any visual depiction of a child under 18 years of age shown or heard engaging in sexually explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the offender or any other person;

(3) being a parent, guardian or other person having custody or control of a child under l8 years of age and knowingly permitting such child to engage in, or assist another to engage in, sexually explicit conduct for any purpose described in subsection (a)(1) or (2); or

(4) promoting any performance that includes sexually explicit conduct by a child under 18 years of age, or a person whom the offender believes to be a child under 18 years of age, knowing the character and content of the performance.

(b) (1) Sexual exploitation of a child as defined in:

(A) Subsection (a)(2) or (a)(3) is a severity level 5, person felony; and

(B) subsection (a)(1) or (a)(4) is a severity level 5, person felony, except as provided in subsection (b)(2).

(2) Sexual exploitation of a child as defined in subsection (a)(1) or (a)(4) or attempt, conspiracy or criminal solicitation to commit sexual exploitation of a child as defined in subsection (a)(1) or (a)(4) is an off-grid person felony, when the offender is 18 years of age or older and the child is under 14 years of age.

(c) If the offender is 18 years of age or older and the child is under 14 years of age, the provisions of:

(1) Subsection (c) of K.S.A. 2012 Supp. 21-5301, and amendments thereto, shall not apply to a violation of attempting to commit the crime of sexual exploitation of a child as defined in subsection (a)(1) or (a)(4);

(2) subsection (c) of K.S.A. 2012 Supp. 21-5302, and amendments thereto, shall not apply to a violation of conspiracy to commit the crime of sexual exploitation of a child as defined in subsection (a)(1) or (a)(4); and

(3) subsection (d) of K.S.A. 2012 Supp. 21-5303, and amendments thereto, shall not apply to a violation of criminal solicitation to commit the crime of sexual exploitation of a child as defined in subsection (a)(1) or (a)(4).

(d) As used in this section:

(1) ”Sexually explicit conduct” means actual or simulated: Exhibition in the nude; sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex; masturbation; sado-masochistic abuse with the intent of sexual stimulation; or lewd exhibition of the genitals, female breasts or pubic area of any person;

(2) ”promoting” means procuring, transmitting, distributing, circulating, presenting, producing, directing, manufacturing, issuing, publishing, displaying, exhibiting or advertising:

(A) For pecuniary profit; or

(B) with intent to arouse or gratify the sexual desire or appeal to the prurient interest of the offender or any other person;

(3) ”performance” means any film, photograph, negative, slide, book, magazine or other printed or visual medium, any audio tape recording or any photocopy, video tape, video laser disk, computer hardware, software, floppy disk or any other computer related equipment or computer generated image that contains or incorporates in any manner any film, photograph, negative, photocopy, video tape or video laser disk or any play or other live presentation;

(4) ”nude” means any state of undress in which the human genitals, pubic region, buttock or female breast, at a point below the top of the areola, is less than completely and opaquely covered; and

(5) ”visual depiction” means any photograph, film, video picture, digital or computer-generated image or picture, whether made or produced by electronic, mechanical or other means.

texting

Sexting could also fall under the Kansas statute for “promoting obscenity to a minor”, which is codified in K.S.A. 21-6401, shown in part below.  Note here that the mental state required is only “recklessly”, which is a lower mental state than “knowingly” or “deliberately.”

21-6401. Promoting obscenity; promoting obscenity to minors.

(a) Promoting obscenity is recklessly:

(1) Manufacturing, mailing, transmitting, publishing, distributing, presenting, exhibiting or advertising any obscene material or obscene device;

(2) possessing any obscene material or obscene device with intent to mail, transmit, publish, distribute, present, exhibit or advertise such material or device;

(3) offering or agreeing to manufacture, mail, transmit, publish, distribute, present, exhibit or advertise any obscene material or obscene device; or

(4) producing, presenting or directing an obscene performance or participating in a portion thereof which is obscene or which contributes to its obscenity.

(b) Promoting obscenity to minors is promoting obscenity, as defined in subsection (a), where a recipient of the obscene material or obscene device or a member of the audience of an obscene performance is a child under the age of 18 years.

(c) (1) Promoting obscenity is a:

(A) Class A nonperson misdemeanor, except as provided in (c)(1)(B); and

(B) severity level 9, person felony upon a second or subsequent conviction.

(2) Promoting obscenity to minors is a:

(A) Class A nonperson misdemeanor, except as provided in (c)(2)(B); and

(B) severity level 8, person felony upon a second or subsequent conviction.

In Missouri, there are several statutes that can be used to cover “sexting.”  These laws revolve around prohibitions of possession, making, or distributing child pornography.  The younger the victim is, the more severe the penalty.  Missouri statutes covering these offenses are:  RSMO Sections 573.010, 573.023, 573.025, 573.035, and 573.037.  Furthermore, the crime of “sexual misconduct involving a child” is covered under RSMo. 566.083:

566.083. 1. A person commits the offense of sexual misconduct involving a child if such person:

(1) Knowingly exposes his or her genitals to a child less than fifteen years of age under circumstances in which he or she knows that his or her conduct is likely to cause affront or alarm to the child;

(2) Knowingly exposes his or her genitals to a child less than fifteen years of age for the purpose of arousing or gratifying the sexual desire of any person, including the child;

(3) Knowingly coerces or induces a child less than fifteen years of age to expose the child’s genitals for the purpose of arousing or gratifying the sexual desire of any person, including the child; or

(4) Knowingly coerces or induces a child who is known by such person to be less than fifteen years of age to expose the breasts of a female child through the internet or other electronic means for the purpose of arousing or gratifying the sexual desire of any person, including the child.

The provisions of this section shall apply regardless of whether the person violates this section in person or via the internet or other electronic means.

It is not a defense to prosecution for a violation of this section that the other person was a peace officer masquerading as a minor.

The offense of sexual misconduct involving a child is a class E felony unless the person has previously been found guilty of an offense under this chapter or the person has previously been found guilty of an offense in another jurisdiction which would constitute an offense under this chapter, in which case it is a class D felony.

Missouri also has a statute that forbids the furnishing of pornographic materials to a minor, RSMo. Sect. 573.040:

573.040. 1. A person commits the offense of furnishing pornographic material to minors if, knowing of its content and character, he or she:

(1) Furnishes any material pornographic for minors, knowing that the person to whom it is furnished is a minor or acting in reckless disregard of the likelihood that such person is a minor; or

(2) Produces, presents, directs or participates in any performance pornographic for minors that is furnished to a minor knowing that any person viewing such performance is a minor or acting in reckless disregard of the likelihood that a minor is viewing the performance; or

(3) Furnishes, produces, presents, directs, participates in any performance or otherwise makes available material that is pornographic for minors via computer, electronic transfer, internet or computer network if the person made the matter available to a specific individual known by the defendant to be a minor.

  1. It is not a defense to a prosecution for a violation of this section that the person being furnished the pornographic material is a peace officer masquerading as a minor.

  2. The offense of furnishing pornographic material to minors or attempting to furnish pornographic material to minors is a class A misdemeanor unless the person has been found guilty of an offense committed at a different time pursuant to this chapter, chapter 566 or chapter 568, in which case it is a class E felony.

There are a number of federal statutes that could possibly cover “sexting” types of scenarios, but these are not commonly used in this manner.  The point here is that “sexting” can be an extremely serious matter.  Sex offender registration is also an issue with these cases.  Parents and those in positions of authority should educate their children that under no circumstances should “sexting” be engaged in.

Read More:  Computer Child Pornography Cases In Kansas And Missouri

Computer-Based Pornography Cases In Kansas And Missouri

Internet-based prosecutions for child pornography have skyrocketed since 1997.  Simply stated, internet obscenity cases have skyrocketed.  From 1997 to 2004, there was a 422% increase in federal cases of this type.  The numbers have grown steadily since then.  In 2011, prosecutions were up by 40% since 2006, with an increasing number of more than 9,000 active cases.

Similar numbers have been observed for state-level cases.  We will discuss the background, nature, and defense of computer-based child pornography cases to better understand this expanding and serious area of federal and state prosecution.  Law enforcement agencies have adopted the latest state-of-the art technologies in devoting resources to this area, and deploy their resources accordingly.

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Entrapment As A Defense In Kansas And Missouri

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Entrapment is a defense available to defendants as a remedy for over-zealous prosecutions.  The defense is defined slightly differently in Kansas and Missouri.  In Missouri, entrapment is defined in R.SMo Section 562.066:

1.  The commission of acts which would otherwise constitute an offense is not criminal if the actor engaged in the prescribed conduct because he was entrapped by a law enforcement officer or a person acting in cooperation with such an officer.

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Sex Crimes And Sex Offenses In Kansas City

There are few criminal accusations in today’s society that are more emotionally-charged than an alleged sex offense.  Public misperceptions and stigmas around these cases have been current for many years.  Besides facing criminal penalties, defendants are also facing the prospect of some form of offender registration upon conviction of the underlying crime.

An experienced law firm that has actually tried these cases and handled them at the state and federal level is a requirement in this area of the law.  With our extensive trial experience with sex offenses, we understand the importance of investigations, expert testimony, deposition practice, computer forensics, medical evidence and expert testimony to secure successful outcomes for our clients.

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