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Attempted child seduction case exposes gap in law

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The Indiana Supreme Court is considering whether a teacher took a substantial step toward the crime of attempted child seduction when he sent explicit Facebook messages to a 16-year-old student and proposed arranging to meet for sex.

Robert Corbin was a teacher and swim team coach at Knox High School in northwest Indiana in 2012 when he allegedly sent Facebook messages to the student. In one, he encouraged her to sneak out after an adult at home was asleep so they could meet to “physically take care of” his arousal.

A relative of the student discovered the messages and notified authorities.

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Starke County Prosecutor Nicholas Bourff charged Corbin with two counts of Class D felony attempted child seduction. While the Court of Appeals called Corbin’s conduct deplorable and immoral, the panel reversed the trial court’s denial of his motion to dismiss, holding that he hadn’t taken the substantial step required under the general attempt statute, I.C. 35-41-5-1.

The Indiana Supreme Court heard oral arguments last month in Robert Corbin v. State of Indiana, 75S03-1401-CR-13.

Corbin’s attorney, Nicholas T. Otis of Newby Lewis Kaminski Jones LLP in LaPorte, argued before the justices that because Corbin was never in the physical presence of the child, he could not have committed child seduction, so the attempt statute cannot apply.

“The government is asking this court to expand the definition of the attempt statute well beyond the interpretation of any court in this state,” Otis told justices.

But the state argued that a teacher sending messages of a sexually explicit nature to a minor student and enticing the student to come to him should meet the substantial step requirement. The state also voiced concern about the public policy implications of dismissing the charges.

“This is going to be a common scenario” due to the rise of social media, Deputy Attorney General Justin Roebel argued.

Corbin was fired from his job after he was charged, and according to the Indiana Department of Education, his teaching license expired the same year as the alleged contact. But it is up to the court to determine whether his case should be dismissed or remanded for trial on the criminal charges.

Indiana School Board Association General Counsel Dave Emmert watched arguments in Corbin’s case and said he believes the law doesn’t address the particular actions alleged against the former teacher.

Emmert said the law requires proximity to a child and not just an intent or communication regarding an attempted sex crime involving a minor. It’s unclear, though, whether the law requires an opportunity for direct physical contact or a scenario such as someone sitting in a car outside the child’s home, for example.

“We don’t know where that line is, and that’s for the court to draw or for the Legislature to amend it,” Emmert said. “There is a gap in the law.”

School systems and individual schools, meantime, may provide a level of student protection by enacting policies that set forth expectations for teachers who do contact students via social media.

“They have to be policies that survive the First Amendment freedom of speech requirement,” Emmert said. Schools shouldn’t be advised to implement prohibitions on social media contact between students and teachers, he explained. Rather, they should craft policies that say teachers should present themselves as positive role models and that punishment for inappropriate communication with students may be grounds for termination.

Aside from the First Amendment problems arising from absolute prohibition, such a policy would be impractical, Emmert said. “Teachers are coaches in their spare time, some are youth leaders in their churches, some are Sunday school teachers, 4-H leaders, and they’re communicating with students all the time.”

Bourff, the prosecutor, also sees a gap in the law and said authorities are placed in a difficult situation when relatives come to them with evidence that someone, particularly a person in a position of trust such as a teacher, appears to be preying on children.

“We wouldn’t have filed the charge if we didn’t think he’d done something wrong,” Bourff said referring to Corbin. “The question we’re hoping the Supreme Court can answer is, ‘Where do we draw the line?’ I think both sides are looking for the answer.”

Chief Justice Brent Dickson and Justices Steven David, Robert Rucker and Loretta Rush each challenged Otis on whether the court had authority to dismiss a case where the factual allegations of the charges track the language of the statute, as is the case in Corbin.

Otis replied that even if the state proved each factual allegation against Corbin, the facts wouldn’t support a conviction for attempted child seduction.

“Are you sure?” David asked. “Who knows how facts are going to play out at trial? … You may be right, but it appears we may not be here at the right time for this.” He suggested a jury might find that Corbin had indeed taken the substantial step.

“He’s offering to go get her,” David said. “To me that changes the whole physical proximity situation.”

Otis contended, “The caselaw simply doesn’t support moving forward with this case.”

But Roebel argued for the state that Corbin’s actions didn’t merit dismissal, and that prior cases on point lacked the element present in his case. “Here we have (Corbin) basically taking a much more final step, telling the child to sneak out and come to me,” Roebel said.

Otis, though, said legislative intent in such cases was clearly articulated by an amendment to the general attempt statute passed this year and which takes effect July 1 – I.C. 35-41-5-1(c). The new language there specifies that an attempted sex crime against a child will require that someone who communicates about a sex crime against a child will also have to travel “to another location to meet the child or the individual the person believes to be a child.”

Rush seized on that new language to challenge Roebel. “Would you concede you would lose this issue,” she asked, under the statute taking effect July 1?

But Roebel contended the charge could still be made even under the new language that requires travel. “There’s no reason to think that there’s not other ways to attempt molestation,” he offered as an example in response.

Otis rebutted: “There is no legal way under the new attempt statute that Mr. Corbin could be convicted of attempted child seduction.”

Stephen Creason, chief counsel in the attorney general’s office, said in a statement after oral arguments that the state has an interest in seeing that children are protected from sex crimes which are “a widespread and pernicious danger that police and prosecutors throughout the state are determined to prevent.”

Corbin, Creason said, “asks the Indiana Supreme Court to adopt a rule that would require the child to be in the presence of the predator before he could be charged with attempting a sex act. The State believes this rule is too restrictive as it puts the child in danger before law enforcement authorities can act.”•
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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