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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 like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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