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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.

david David

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. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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