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Court tackles 'sexual activity' meaning in statute

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The 7th Circuit Court of Appeals addressed Thursday the term “sexual activity” – an issue in which there is scant law – and ordered a man be acquitted. The man was convicted under federal statute for attempting to entice a girl he believed to be less than 18 years old to engage in any sexual activity while they chatted online.

Jeffrey Taylor appealed his conviction under 18 U.S.C. Section 2422(b), in which the government relied on two Indiana offenses to convict him: touching or fondling the person’s own body in the presence of someone less than 14 years old with the intent to arouse or satisfy the sexual desires of a child or the older person; and knowingly or intentionally soliciting a child under 14 years old to engage in fondling or touching intended to arouse or satisfy the sexual desires of the child or adult. Taylor chatted online with a girl he believed was 13 years old, but she was actually a police officer. Taylor fondled himself on his webcam and invited her to also touch herself.

The 7th Circuit addressed Taylor’s conduct and the meaning of the term “sexual activity” as it pertains to federal law. The term isn’t defined in the federal criminal code, but “sexual act” is defined. The judges had to decide whether “sexual activity” encompasses a broader range of acts than “sexual act.”

The judges hypothesized that perhaps because Congress didn’t define sexual activity, it considered the terms “sexual act” and "sexual activity" interchangeable. If they are synonymous, as they appear to be, then “sexual activity” requires contact because “sexual act” requires contact, wrote Judge Richard Posner.

“Congress will have to define ‘sexual activity’ more broadly than ‘sexual act’ if it wants to bring the kind of behavior engaged in by the defendant in this case within the prohibition of section 2422(b) via the fondling and child-solicitation offenses found in the Indiana criminal code, when the defendant neither made nor, so far as appears, attempted or intended physical contact with the victim,” wrote the judge.

In United States of America v. Jeffrey P. Taylor, No. 10-2715, the Circuit Court reversed Taylor’s conviction and ordered the lower court enter a judgment of acquittal.

Judge Daniel Manion didn’t agree with his colleagues’ assessment that the term “sexual activity” is the same as “sexual act,” but concurred with the majority that Taylor shouldn’t have been convicted. Judge Manion believed that Taylor couldn’t be successfully prosecuted for either of the Indiana crimes. He delved into one of the Indiana statutes used to convict Taylor – Indiana Code Section 35-42-4-(c)(3), which says it’s a crime when adults touch themselves in the presence of children less than 14 years old. But that statute doesn’t qualify the term “presence” with terms like “actual” or "constructive,” so Judge Manion believed since Taylor used a webcam when fondling himself, he wasn’t actually in the presence of the alleged minor. Other courts have held that phone conversations and webcams don’t put the adult in the presence of a child.

Judge Manion also argued Taylor couldn’t be convicted under Indiana law for solicitation because Taylor told the alleged minor that he didn’t want to meet her. He believed that statute was ambiguous, and when it was passed in the 1980s, Taylor’s conduct by using the Internet was unimaginable.

“While law constantly trails crime, in the context of sexual behavior and technology the problem is particularly clear—the old laws will not do. The legislature has to specifically address this lamentable behavior and determine what the law truly proscribes. Under our current laws, with the advent and prevalence of 'sexting' and virtual sexual behavior, many, many citizens are engaging in behavior that could make them felons,” he wrote. “It is not enough to let the courts figure it out and to try to see if old definitions fit this new and troubling behavior.”
 

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. 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

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