ILNews

Court tackles 'sexual activity' meaning in statute

Back to TopCommentsE-mailPrintBookmark and Share

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.”
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
2015 Distinguished Barrister &
Up and Coming Lawyer Reception

Tuesday, May 5, 2015 • 4:30 - 7:00 pm
Learn More


ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  2. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  3. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

  4. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  5. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

ADVERTISEMENT