ILNews

Judge examines definition of 'sexual activity'

Michael W. Hoskins
January 1, 2007
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
A federal judge in northern Indiana has refused to acquit or order a retrial for a man convicted of using the Internet to expose himself to what he thought was a 13-year-old girl, even though it's unclear whether the man actually committed a crime as defined by federal statute.

In a 15-page order released today in U.S. v. Donald L. Cochran, No. 2:06-CR-161 PS, U.S. District Judge Philip Simon in Hammond denied the motions by defendant Cochran, whose online actions in July 2006 led to his prosecution of coercing and enticement of a minor.

Cochran visited an "Indiana romance" chat room and started talking online with a person identified as a 13-year-old girl; however "Ashley" was actually a detective with the Purdue University Police Department conducting an undercover sting operation to catch child predators online. They communicated seven times during several weeks, and more than once Cochran was accused of exposing himself through a web cam.

At trial, Cochran moved for an acquittal at the close of evidence arguing that his conduct didn't meet the elements of the statute, Title 18 of the U.S. Code, Section 2422. Judge Simon took the matter under advisement and submitted it to a jury, which returned a guilty verdict, but he admits the issue presents "a close call."

"What Donald Cochran did over the Internet last summer was undeniably a bit disturbing," he wrote. "But whether he violated the federal statute with which he was charged is not so simple a question. The statute in question ... is written in a way that only a lawyer could love."

That statute section prohibits people from using the Internet to persuade or entice children to engage in prohibited sexual activity, but doesn't define "sexual activity," Judge Simon wrote, noting the only limitation on the term is that the conduct must amount to a violation of a "criminal offense" which encompasses state law offenses.

In this case, Cochran's underlying criminal offense based on state law is Indiana Code 35-42-4-5c, or "vicarious sexual gratification; fondling in the presence of a minor."

Judge Simon determined the evidence was strong enough to prove the conduct was criminal, especially because Cochran didn't deny any of the factual allegations during trial.

"The more difficult question is whether the acts that form the basis for the commission of the Indiana offense ... amounts to 'any sexual activity' as that term is used in the federal statute," the judge wrote, comparing definitions of terms "sexual act" and "illicit sexual conduct" used repeatedly in various parts of the criminal code. "I presume that Congress meant what it said when it prohibited 'any sexual activity for which any person can be charged with a criminal offense."
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

ADVERTISEMENT