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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. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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