I.    Introduction

The United States Department of Justice defines computer crime as “any violations of criminal law that involve a knowledge of computer technology for their perpetration, investigation, or prosecution.” ¹   The Department of Justice also categorizes computer-related crimes in terms of the computer’s role in the crime. ²   A computer may be the “object” of a crime (i.e. stolen hardware or software), the “subject” of a crime (i.e. a computer infected with a computer virus or worm), or an “instrument” through which an offender commits a real space crime (i.e. copyright infringement or harassment). ³   The following research addresses the latter-most category where a computer is a medium of committing traditional crime, particularly in terms of crimes that begin online and conclude in real space.

II.    Courts that Dealt with Criminal Offenses that Began Online

In the summer of 2001, I interned at the Cambria County Courthouse in Ebensburg, Pennsylvania. That summer I witnessed a guilty plea where an 18 year old male pled guilty to raping a minor that he had been instant messaging over the internet. The only issue discussed at the pleading was the rape. No internet or computer crime issues were even discussed. In the discovery stages, an in-house computer detective searched the 18 year old’s PC. The detective told me that he was searching the hard drive to find information that led to the rape. He said that he had software that enabled him to find even deleted documents. The detective also used a method by which he could locate deleted file logs in DOS. Such evidence included the online conversations between the 18 year old and the minor.

A few years earlier, a New York trial court charged and convicted a man named Jovanovic with kidnapping, sexually abusing, and assaulting a female undergraduate student. ⁴   The defendant and the alleged victim had been emailing and instant messaging each other for weeks before they met in real space. ⁵   After an encounter that involved acts of sadomasochism from which the victim claimed she finally escaped, the two parties continued their online correspondence. ⁶   On appeal, the defendant argued that the lower court failed to admit certain online correspondences that were evidentiary of both the woman’s consent and his reasonable beliefs as to her intentions. ⁷   The Supreme Court of New York agreed, holding that “the preclusion of this evidence improperly interfered with defendant’s right to confront witnesses,” and as a result, granted Jovanovic a new trial. ⁸   The very explicitly detailed statement of facts in the opinion suggested that the female undergraduate student gave Jovanovic quite a strong impression of her interests. ⁹   It is important to note that this case did not address online anonymity and the fact that anybody behind a computer screen can create a cyber-persona far different from who they are in real space.

Later, in Georgia, a federal jury convicted John Allen Root of “attempting to persuade a minor to engage in criminal sexual activity.” ¹⁰   Once again, both the defendant and the victim engaged in online communications that eventually led to a real space meeting. Only this time, the defendant was in for a surprise because the “victim” was actually a Georgia Sheriff’s Department investigator who had been hired by the FBI to pose as a 13 year old girl. Root argued that the absence of an actual child victim precluded conviction and sentencing for the offense. ¹¹   Here, the United States Court of Appeals for the 11th Circuit held that “an actual minor victim was not required for an attempt conviction under 18 U.S.C. § 2422.” ¹²   “The fact that Root’s crime had not ripened into a completed offense is no obstacle to an attempt conviction” because his “belief that a minor was involved [wa]s sufficient…” ¹³   Furthermore, the court found that the Government fulfilled a two-prong test for such an attempt: (1) A transcript of Root’s instant messages established that he had the specific intent to engage in the underlying criminal conduct , and (2) Root’s instant messages also established that he took substantial steps toward the commission of the underlying crime . ¹⁴

Likewise, the court found appropriate sentencing under USSG § 2A3.2(b)(2)(B)’s undue influence enhancement. The court reasoned the fact that the “victim” was an undercover investigator was irrelevant because undue influence enhancements focus on the offender's conduct. ¹⁵   Here, the instant message transcript was valuable evidence of Root’s use of increased knowledge, persuasive powers, and superior resources intended to seduce who he thought was a 13 year old girl. ¹⁶

Going back to online anonymity, this case is also an example of what may happen if one chooses to don a criminal online persona. Despite any “pretending” behind a screen, an instant messenger transcript can help establish the requisite elements for an attempted crime. Perhaps this reasoning could be extended to emails between friends who are joking about robbing a bank or breaking into somebody’s house.

Most currently, California’s Court of Appeal convicted David Irving Hatch on numerous counts of “transmitting harmful matter over the Internet to a child in an attempt to seduce the child.” ¹⁷   Like United States v. Root, the “victim” was not the same person the offender had imagined. In this case, Hersey, a 20 year old woman who looked younger than 18 posed as two 13 year old girls named Stacie and Lisa. Hatch had online conversations with both of these minor personas, while Hersey diligently provided copies of the communications to the police. ¹⁸   Unlike the Root case, when Hatch met “Lisa” in real space, the encounter did not end with an immediate arrest because Hersey’s appearance deceived him into believing that she was the 13 year old girl he communicated with online. Hersey’s appearance enabled her to take things a step further. She asked him if she could take pictures of him, and shortly thereafter police showed up at his house with a search warrant and seized Hatch’s computer to find pictures that the offender sent Hersey. ¹⁹   With the authority of California Penal Codes § 288.2(a), § 313 and precedent case law, the Court charged Hatch with attempted crimes. ²⁰   As in Root, the Court considered the online communications evidence of the attempted crimes. Finally, the court held that attempted seduction under § 288.2(a) included internet communications. ²¹

All of these situations involved online communications that led to or may have potentially led to real space crime. Even those communications that did not result in an underlying criminal action led to conviction of attempted crime. The following sections briefly explore other legal implications presented in the above accounts and cite the aforementioned statutory authority.

III.    Other Issues and Legal Implications

In addition to criminal liabilities, the above cases alluded to issues of harassment, privacy, entrapment, and free speech. It appears that in cases of online harassment, the offender never has to meet the victim in real space. ²²   In both the Pennsylvania and California cases, the offenders’ computers were seized and there were no objections that such seizure was unlawful. ²³   The above courts expressed good policy reasons for allowing adults to pose as minors in an effort to catch online predators. However, some may consider the government’s strategy an entrapment. Note 1 of USSG § 2A3.2 gives the explanation that this statute expanded the definition of “victim” to undercover operations. Supposedly, a “victim” cannot entrap an offender. Finally, Hatch argued that the Cal. Penal Code was unconstitutional because it violated his free speech, but the court found otherwise. The court reasoned that the Cal. Penal Code is directed at the activity of attempting to seduce a minor rather than actual speech. ²⁴

IV.    Statutory Authority

18 U.S.C. § 2423(b)

“Travel with intent to engage in sexual act with a juvenile. A person who travels in interstate commerce, or conspires to do so, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, or conspires to do so, for the purposes of engaging in any sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A [18 USCS §§ 2241 et seq.] if the sexual act occurred in the special maritime and territorial jurisdiction of the United States shall be fined under this title, imprisoned not more than 15 years, or both.”

18 U.S.C. § 2422(b)

“Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.”

Cal. Penal Code § 288.2(a)

“Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail.”

V. Final Comments

In contrast to my thoughts prior to researching this topic, the California Penal Code does address the commission of online crime that leads to offline crime. Moreover, the code enables the state to charge the offender before an offline crime is committed. Case law clarifies this point in its discussion of attempted crime. Furthermore, Hatch ruled that attempted seduction includes internet communications. Therefore, an offender may be charged with online crime itself because the online act is an actual crime instead of a mere threat of crime.

1. Heather Jacobson and Rebecca Green, Computer Crimes, 39 Am. Crim. L. Rev. 273, 320 (2002) (citing NATIONAL INSTITUTE OF JUSTICE, U.S. DEP'T OF JUSTICE, COMPUTER CRIME: CRIMINAL JUSTICE RESOURCE MANUAL 2 (1989)).

2. Id.

3. Id. at 276.

4. People v. Jovanovic, 263 A.D.2d 182, 183 (N.Y. 1999).

5. Id.

6. Id. at 189.

7. Id. at 183.

8. Id.

9. See Jovanovic, 263 A.D.2d at 187 – 189.

10. United States v. Root, 296 F.3d 1222, 1223 (11th Cir. 2002).

11. Root, 296 F.3d at 1226.

12. Id. at 1227 (emphasis added).

13. Id.

14. Id. at 1228.

15. Root, 296 F.3d at 1234.

16. Id. at 1235.

17. Hatch v. San Diego County, 80 Cal. App. 4th 170, 176 (2000).

18. Hatch , 80 Cal. App. 4th at 177-179.

19. Hatch , 80 Cal. App. 4th at 181.

20. Hatch , 80 Cal. App. 4th at 188.

21. Id. at 204.

22. Colin Hatcher, ELECTRONIC HARASSMENT LEGAL ISSUES CHECKLIST CALIFORNIA AND FEDERAL, 2000 available online at http://daviddfriedman.com/Academic/Course_Pages/21st_century_issues/21st_century_law/trouble_online_legal_01.htm (discussing federal and California harassment laws).

23. See generally Transporting Hardware from the Scene, FEDERAL GUIDELINES FOR SEARCHING AND SEIZING COMPUTERS, available online at http://www.usdoj.gov/criminal/cybercrime/ search_docs/sect3.htm#D.2 (discussing federal legislation concerning privacy and computer seizure).

24. Hatch, 80 Cal. App. 4th at 203.

Related Links