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When police entice people to commit crimes

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Police do not only focus on identifying and stopping criminal activity, but also on encouraging people to commit criminal activity and then arresting them. We see the latter activity happen with undercover police who ask people to arrange drug deals, rob non-existent drug stash houses, and engage in sexual activity with non-existent minors.

To what extent do the criminal defendants in these cases have an advance idea that they might be dealing with police? No matter how well publicized become such police stings, cops’ supply of new sting defendants seems as plentiful as spawning salmon feasted on by patiently waiting bears.

A pedophile interested in incest as well, William Andrew Clarke got caught, convicted and sentenced for a decade for agreeing with an undercover Homeland Security agent to meet the agent and the agent’s non-existent, pre-pubescent two minor children for sexual activity with the children. United States v. Clarke___ F.3d ___ (Nov. 18, 2016). 

Yes, the Clarke appellate opinion turns the stomach not only with its details about Clarke’s interest in sex with children, but also with the realization that Clarke likely would have followed through with his plan had this not been an imaginary sting. However, the abhorrence of a criminal defendant or his actions do not justify shortchanging a criminal defendant’s protection under the law. Here, the Fourth Circuit confirms that the trial judge clearly violated the requirement to disclose the judge’s planned jury instructions before the parties present closing argument to the jury. However, Clarke declines relief on this issue, having concluded that Clarke did not demonstrate “that the violation resulted in actual prejudice.”

Furthermore, Clarke joins other federal circuits in concluding that adult-to-adult communication (here in the form of Clarke’s communications with the undercover Homeland Secuirty agent) satisfy the governing statute’s prohibition against one who “knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in . . . any sexual activity for which any person can be charged with a criminal offense, or attempts to do so.” 18 U.S.C. § 2422(b) (emphasis added).

Do we really want police spending so much resources on such stings? Yes, a slew of adults exist who will engage in sex with minors under the age of consent. At the same time, plenty of such police arrestees would have kept such interests dormant or else as mere fantasies, but for the police enticing them to engage in such activity. On top of all that, stiff mandatory minimum sentencing is involved in such cases.

I have defended clients caught in Virginia state stings for  soliciting minors for sex. In one of those cases, our forensic psychological expert confirmed that my client was engaging in fantasy and was not likely to sexually act upon the fantasy. However, the governing Virginia law did not provide favor for fantasy, although our expert’s opinion likely helped us with plea negotiations and a near time-served sentence.

These stings remain the status quo in our society.