Seventh Circuit rules federal enticement statute constitutional.

• Author: Ziemer, David

Byline: David Ziemer

The federal statute against using a facility of interstate commerce to entice a minor to engage in a sexual act is constitutional. The Seventh Circuit reached that decision on Oct 9, despite the statute's lacking an explicit element that the defendant knew the victim's age. In 2003, Francois Cote, a 47-year-old living in New York, entered a chatroom that was advertised as a "fantasy channel for young girls and those who love then [sic]." Through the chat room, Cote initiated a private chat with "lil'mary," who described herself as "14 f chgo," Internet slang for a 14-year-old female from Chicago. However, "lil'mary" was actually a Cook County sheriff's deputy. When Cote came to Chicago to meet "lil'mary," he was arrested and charged in federal court with violations of 18 U.S.C. 2423(b) and 2422(b). On the second count, the district judge instructed the jury, in relevant part, as follows: "The government must prove that the defendant believed the person with whom he was communicating was a minor, but it is not a defense to the charge that the person was not, in fact, a minor." Knowledge and Belief The jury found Cote guilty, and he appealed, but the Seventh Circuit affirmed in a decision by Judge Kenneth F. Ripple. The court first held sec. 2422(b) constitutional, even though it does not contain a scienter requirement, regarding the level of knowledge the defendant had about the age of the victim. At the time of the offense, the statute read, "Whoever, using any facility or means of interstate or foreign commerce ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years to engage in prostitution or any sexual act for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 15 years, or both." (The current version is different, but the scienter language is not substantively different). The court acknowledged that, without a scienter requirement for the age of the victim, the statute could chill speech protected by the First Amendment. However, it concluded that it need not read the statute in that fashion. Knowledge Issue Evolves The court noted that, in Morissette v. U.S., 342 U.S.246 ((1952), the U.S. Supreme Court established a presumption in favor of a scienter requirement for each statutory element that criminalizes otherwise innocent conduct. The flawed statute in Morrissette made it...