ILNews

Judge examines definition of 'sexual activity'

Michael W. Hoskins
January 1, 2007
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A federal judge in northern Indiana has refused to acquit or order a retrial for a man convicted of using the Internet to expose himself to what he thought was a 13-year-old girl, even though it's unclear whether the man actually committed a crime as defined by federal statute.

In a 15-page order released today in U.S. v. Donald L. Cochran, No. 2:06-CR-161 PS, U.S. District Judge Philip Simon in Hammond denied the motions by defendant Cochran, whose online actions in July 2006 led to his prosecution of coercing and enticement of a minor.

Cochran visited an "Indiana romance" chat room and started talking online with a person identified as a 13-year-old girl; however "Ashley" was actually a detective with the Purdue University Police Department conducting an undercover sting operation to catch child predators online. They communicated seven times during several weeks, and more than once Cochran was accused of exposing himself through a web cam.

At trial, Cochran moved for an acquittal at the close of evidence arguing that his conduct didn't meet the elements of the statute, Title 18 of the U.S. Code, Section 2422. Judge Simon took the matter under advisement and submitted it to a jury, which returned a guilty verdict, but he admits the issue presents "a close call."

"What Donald Cochran did over the Internet last summer was undeniably a bit disturbing," he wrote. "But whether he violated the federal statute with which he was charged is not so simple a question. The statute in question ... is written in a way that only a lawyer could love."

That statute section prohibits people from using the Internet to persuade or entice children to engage in prohibited sexual activity, but doesn't define "sexual activity," Judge Simon wrote, noting the only limitation on the term is that the conduct must amount to a violation of a "criminal offense" which encompasses state law offenses.

In this case, Cochran's underlying criminal offense based on state law is Indiana Code 35-42-4-5c, or "vicarious sexual gratification; fondling in the presence of a minor."

Judge Simon determined the evidence was strong enough to prove the conduct was criminal, especially because Cochran didn't deny any of the factual allegations during trial.

"The more difficult question is whether the acts that form the basis for the commission of the Indiana offense ... amounts to 'any sexual activity' as that term is used in the federal statute," the judge wrote, comparing definitions of terms "sexual act" and "illicit sexual conduct" used repeatedly in various parts of the criminal code. "I presume that Congress meant what it said when it prohibited 'any sexual activity for which any person can be charged with a criminal offense."
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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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