Ryan Higgins
Professor Jasmine Mulliken
English 1113
29 November 2011
When the Online Predator is the Prey
Several years ago, the NBC program, “To Catch a Predator” opened the world’s eyes to how dangerous online sexual predators can be. The program showed members of the Perverted Justice organization posing as children in online chat rooms, hoping to lure potential sexual predators into what they thought would be sexual encounters at the children’s homes. When the alleged predators arrived, they were ambushed by an NBC Dateline camera crew and arrested by police. Reporter Chris Hansen confronted them with embarrassing questions about why they were there. Many said they had no interest in sex. They just wanted to talk to the children. Others were more obvious. Some stripped their clothes off before the confrontation even began. Some brought liquor or condoms to the homes but still claimed sex was not on their minds. That argument is highly doubtful, of course. One thing they all had in common was all of them believed they were chatting online with children when they were really chatting with online impersonators. The show received high television ratings but many question whether or not creating false online identities to catch these alleged predators is fair. One argument says it is entrapment, which means the online impersonators unfairly influenced the suspects to behave in a certain way. Another side of the argument says it is enticement, which is a legal way to catch online sexual predators. I argue that it is not entrapment when law enforcement officials use false online identities to catch sexual predators.
It is not surprising that many of those who argue that catching sexual predators by
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creating false identities online is entrapment are the accused themselves and their lawyers. Attorney David Shain represents a California man arrested at a city park after arranging to meet an underage girl for sex. The underage girl was actually a police detective posing online as the girl. Shain says the police can be guilty of entrapment in some cases. He argues,“Entrapment rules are drawn fairly narrowly. It comes down to ‘was the action of law enforcement likely to cause someone to commit a crime they otherwise never would have done?’” (Wilson). If the answer is yes, Shain argues it is entrapment. He also argues that no crime actually occurs since the subjects are chatting online with an adult even though they think they are chatting with children. “Obviously everyone is concerned that children are protected. But it is somewhat disquieting for a number of us that someone can be prosecuted for a crime that no one committed,” he argues (Wilson).
Others argue that the idea of putting sexual predators behind bars is important enough to rule out entrapment. The Virginia Law Review’s Andrew Carlon says the whole idea of entrapment is outdated. It is not a common defense in other countries; only in America, he argues. Carlon is frustrated that so many legal resources are used to defining entrapment and deciding whether judges or juries should make rulings in entrapment cases. “Why should someone who commits a crime, with a criminal state of mind, be found not guilty because the one who tempted him to commit the crime, another otherwise irrelevant fact, was – entirely unbeknownst to him – a police agent?” (Carlon). Carlon argues that whether it is the case of a detective posing as a child in an online chat room or an officer going undercover in a drug sting, it is not entrapment. The idea of entrapment, as Shain argues, often involves the intent of the accused. The
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Columbia Journalism Review refers to the “To Catch a Predator” program, saying that often during online exchanges with Perverted Justice members posing as children, the alleged predators “express doubts about what they’re doing and have to be egged along a bit by the decoys, many of whom come off as anything but innocent children” (McCollam). In these cases, there is a stronger argument for entrapment because the accused does not seem totally willing to have sex with children. If the online impersonators start conversations with the accused or change the subject to sex, it could be also considered entrapment in some cases. However, “they are prepared to flirt, literally, with the line” (McCollam). Even in cases where the definition of entrapment has obviously taken place, if someone clearly intends to solicit sex with a child, they will often end up in jail even if the child was an online impersonator “so as a legal matter, the enticements offered by the decoys are of little importance to the police,” argues the Columbia Journalism Review.
Those who argue that these online stings are entrapment point to the legal language that supports their case. According to the American Journal of Criminal Justice, three questions must be answered to establish entrapment.
1. Did the law enforcement officer continuously contact the suspect with the intention of trying to convince the individual to engage in a particular type of behavior?
2. How long was the relationship between the undercover (online) officer and the suspect?
3. How much, if any reluctance to commit the criminal act did the suspect provide evidence of? (Hunt, Lee, and Moore).
If the answer to question one is yes, entrapment occurs because the online detective is not legally allowed to influence the potential predators to commit an act, argues the Journal. Referring to question two, if the online relationship takes place over a long period of time, it is considered
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entrapment. “Unfortunately, the court did not directly address the issue of what an acceptable time frame would be in regards to sting operations” (Hunt, Lee, and Moore), which makes proving entrapment more difficult. Finally, if the answer to question three is the suspect was reluctant to commit the act, entrapment is possible, argues the Journal.
The legal definitions may support the argument for entrapment. However, those who participate in the online stings argue that the criminals would still engage in the behavior without being influenced, meaning there is no entrapment. A New York Times article described how police in Long Island, New York are successfully arresting online sexual predators without being accused of entrapment. Detective Rory Forrestal argues,
We have a certain way we guide our (online) conversation that keeps us away from that whole entrapment issue. It’s done very, very strictly, because everything we do is recorded. If this guy’s for real, he’s going to be aggressive. The more you lay back, the better it is for you. We don’t want some juror saying, ‘Oh, if I was a male, I’d be attracted.’ You don’t want that. (Richter).
Once again, entrapment goes back to criminal intent. When sexual predators willingly solicit sex online with whom they perceive as children, it is a criminal act, not entrapment. It does not matter if the person the subject chats with is actually a child. If the subject believes it is a child, the criminal intent is present.
The entrapment issue is relatively new since the Internet and chat rooms are only about 20 years old and their use for police work is even more recent. “To Catch a Predator” brought the issue to light for many Americans. In 2006, a CBS News report criticized “To Catch a Predator” for being too sensational and for entrapping its subjects. NBC anchorman Stone Phillips argued at the time that the show does not entrap its subjects. CBS blogger Brian Montopoli responded quickly when he argued,
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Dateline is indeed entrapping the men by having the decoys, at least some of the time, bring up the subject of sex and later invite the men to the house for a sexual encounter…if you accept the traditional legal definition of entrapment – that one is entrapped when ‘induced or persuaded by law enforcement officers or their agents to commit a crime that he had no previous intent to commit’ – than Phillips’ defense raises questions, because it was often the decoys who first suggested the crime.
Montopoli was responding directly to Phillips, who said that even though the decoy often initiates the subject of sex, “once the hook is baited, the fish jump and run with it like you wouldn’t believe.” Phillips correctly argued that the alleged sexual predators seen on “To Catch a Predator” do not need to be convinced to have sex with children so there is no entrapment. The image may be planted in their heads by online impersonators but the subjects themselves are the ones who travel to the homes of whom they believe are children, looking for sex. Phillips continued his argument. “Enticement? Yes. Entrapment? I don’t think so. The closer I look at the online conversations the more obvious it becomes that these men are not first timers when it comes to engaging minor in graphic online chats. They tend to be remarkably matter-of-fact in their approach, as if it is part of an all too regular routine.”
Attorneys know that entrapment is very difficult to argue because you must prove that the subject would not have acted that way without online prompting. Anthony J. Colleluori, a New York defense attorney says most of his clients claim they were entrapped. However, Colleluori agrees with Phillips when he says his clients were only enticed. “An officer can entice one otherwise disposed to commit a crime to commit the crime. That is different from entrapment, defined as an officer overcoming the will of an otherwise unwilling person to commit a crime” (Colleluori). Enticement is perfectly legal, argues Colleluori. If an undercover police officer posing as a child online influences someone to solicit sex with the child, it is entrapment, some argue. Others argue that it is not entrapment because
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anyone who agrees to meet a child for sex is showing an interest in that activity with or without police influence. The argument will continue to grow as technology progresses and police continue to create new ways to catch online sexual predators. The predators will not go away. 90 percent of pedophile crimes involve the Internet (Hunt, Lee, and Moore). Police must use every legal means necessary to catch these predators.
It is not entrapment when law enforcement officials use false online identities to catch sexual predators. Programs such as “To Catch a Predator” may be offensive to some but the end result is what counts. Sexual predators are being put in jail and it is no one’s fault but their own. They are being trapped, not entrapped. Even their lawyers admit that entrapment is difficult to prove because the idea of an adult being influenced to have sex with a child is unbelievable. An adult who commits this crime will do it without being influenced by someone else, meaning it is not entrapment. Still, as Hunt, Lee, and Moore argue, “the (entrapment) defense will likely continue to be argued in cases involving online sting operations…the number of such claims is certain to increase as more law enforcement agencies develop online operations and the number of arrests continues to increase.”
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Works Cited
Carlon, Andrew. “Entrapment, Punishment, and the Sadistic State.” Virginia Law Review. June 2007. Web. 27 Nov. 2011.
Colleluori, Anthony. “Defending the Internet Sex Sting Case.” GP Solo. Jan.-Feb. 2010: Proquest. Web. 22 Nov. 2011.
Hunt, Robert; Lee, Tina; Moore, Robert. “Entrapped on the Web? Applying the Entrapment Defense to Cases Involving Sting Operations.” American Journal of Criminal Justice. Nov. 2007: Proquest. Web. 27 Nov. 2011.
McCollam, Douglas. “The Shame Game.” Columbia Journalism Review. Jan.-Feb. 2007: Proquest. Web. 22 Nov. 2011.
Montopoli, Brian. “Does ‘Dateline’ Go Too Far ‘To Catch a Predator’?” CBS News. 7 Feb. 2006. Web. 27 Nov. 2011.
Phillips, Stone. “Inside Dateline: Why It’s Not Entrapment.” MSNBC. 1 Feb. 2006. Web. 27 Nov. 2011.
Richter, Allan. “Setting the Traps to Snare Online Predators.” The New York Times. 7 Oct. 2001: Proquest. Web. 22 Nov. 2011.
Wilson, Tracy. “Officer Surfs the Net for Sexual Predators.” Los Angeles Times. 21 Nov. 1999: Proquest. Web. 27 Nov. 2011.
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