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Sexual misconduct may not be abusive

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The 7th Circuit Court of Appeals vacated today a man's sentence following a guilty plea on a child pornography charge because it was unsure whether his previous conviction in Indiana for sexual misconduct with a minor should be considered abusive and allow for his minimum sentence to be increased.

In United States of America v. Sean Osborne, No. 08-1176, Sean Osborne pleaded guilty to possessing and distributing child pornography in violation of 18 U.S.C. Section 2252(a). Under that section, a defendant with a previous conviction in any state relating to aggravated sexual abuse, sexual abuse, or abusive sexual misconduct with a minor or ward would have an increased minimum sentence of 15 years. Osborne was convicted in 2002 of violating Indiana Code Section 35-42-4-9(b), which makes it a crime for someone 18 or older to fondle or touch someone age 14 or 15 with intent to arouse the sexual desires of the child or adult.

The question in this case is whether Osborne's sexual misconduct in the 2002 case was abusive. The District Court ruled every conviction under that state statute arises from abusive sexual conduct and sentenced him to the 15-year minimum.

The federal statute section doesn't define what is abusive nor has any appellate court addressed what makes sexual conduct involving a minor abusive. Interpreting that any offense out of sexual conduct with a minor is abusive would make the use of the word unnecessary in the statute, wrote Judge Frank Easterbrook.

Under I.C. Section 35-42-4-9(b), it's possible for an 18-year-old high school student to be convicted for sexual contact with his or her 15-year-old significant other that may be considered typical behavior for high school students in a relationship.

"Exploratory touching between students in high school is not a form of 'abusive' sexual contact, as that word is ordinarily understood," wrote the judge.

Because of the lack of a definition of abusive under federal Section 2252, the 7th Circuit ruled it's best to say as a matter of federal law that sexual behavior is abusive only if it is similar to one of the crimes denominated as a form of abuse elsewhere in Title 18.

Unless the charging papers can show Osborne has been convicted of violating the Indiana Code in a way that shows abusive sexual behavior, the District Court must treat his 2002 conviction as non-abusive because the elements of the statute permit a conviction for many kinds of conduct that federal law doesn't consider abusive, wrote Judge Easterbrook.

The federal appellate court remanded the case for further proceedings.

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