A favorite tactic of law enforcement is to have an adult agent pose online as a pedophile with access to minors to lure and ensnare potential pedophiles who are using the internet to gain access to minors for sex.
A recurring legal question that has arisen is whether the federal statute that criminalizes online solicitation of a minor requires direct communication with a real child rather than an adult, either posing as a child or as an intermediary who can arrange access to a child.
On October 21, 2014, the D.C. Circuit Court of Appeals joined seven other federal circuits, including the Fifth Circuit, that have considered and rejected the claim that the statute applies only to direct communications with a minor.
IN February 2012, P. D. Hite, a 58-year-old anesthesiologist from Midlothian, Virginia, entered a chat room on gay.com under the screen name “VetteguyZ06” and initiated a conversation with “DCped.” DCped described himself as a single (“no limit perv”) man who lived in the District of Columbia area. DCped told Hite that he had an ongoing sexual relationship with the 12-year-old daughter of his girlfriend and that he had “limited sexual contact” with his three-year-old nephew. Hite responded that he had previous sexual activity with the 11-year-old son of a friend.
The problem for Hite was that DCped was an “online persona” created by Metropolitan Police Department Detective Timothy Palchak and, of course, the two minors DCped claimed to be sexually involved with were fictitious. The detective ensnared Hite into conversations over the next several weeks, eventually suggesting that DCped and the 12-year-old girl could “hook up” with Hite. Hite expressed an interest in having a “3 way” with DCped and the girl identified as “Christy.”
Once on the same page, the detective got Hite to engage with DCped over the next two weeks to discuss in “graphic detail” to the kind of sexual activity the two adults would engage in with the two minors DCped had access to. After several days of this kind of discussion, DCped told Hite that he would be babysitting the 3-year-old nephew on February 18. The two men agreed to meet on February 17 to confirm that neither of them was an “undercover cop.” It was at this point that Hite began to express some reservations about the proposed sexual encounters with the minors. The Court of Appeals explained:
“A few days before their scheduled meeting, however, Hite expressed nervousness and emphasized that they would be ‘[t]wo adults meeting Friday night to explore and discuss common interests,’ ‘nothing else expected or implied.’ When the two men spoke on the phone later that day, Hite reiterated, ‘any of the conversation that we have I’m sure on my end, and on your end also, has been totally fantasy, and it’s just the two of us meeting Friday night to explore, and you know, discuss various things, correct?’ Hite also asked for, and received directions t [DCped’s] apartment in the District of Colombia.”
That should have ended the criminal investigation. While Hite may have had a desire to engage in sexual activity with DCped’s minors, he was not prepared to act on those desires. This was evidenced even more clearly when on February 17, the day the two men were to meet, Hite revealed to DCped over the telephone that he had “spent two sleepless nights … trying to relieve] [his] paranoia.’”
Detective Palchak was not about to let his prey escape. To assuage Hite’s nervousness, DCped offered to do a “webcam session” during which he would perform fellatio on his nephew to prove to Hite that he was “legit.” Hite was relieved. He told DCped, “Okay, fabulous,” and the two men discussed the upcoming weekend weather with Hite telling DCped that he could drive a 4-wheel-drive vehicle “in the event of snow.”
Of course, no webcam session took place. Detective Palchak had trapped his prey. Hite was arrested that same evening at a gas station near his home in Midlothian. The appeals court explained what happened next:
“ … During a search warrant executed at Hite’s home, officers seized a laptop and recovered 400 “thumbnail” images of child pornography that had been opened from a separate electronic storage device, as well as an Internet search history including that Hite had searched ‘mapquest’ for the Verizon Center, a landmark near [DCped’s] fictitious address.”
The Government indicted Hite on two counts of violating § 2422(b). He elected to stand trial. He presented the defense that in the conversations with DCped “he was engaged in fantasy and role-play and had no intention of engaging in sexual activities with a real child.”
The jury didn’t buy the defense. It convicted him on both counts. In July 2013, U.S. District Court Judge Colleen Kollar-Kotelly sentenced Hite to 22 years in prison and fined him $500,000 on both counts. He will face 10 years of supervised release after he is released from prison.
While we do not agree with the eight federal circuits that have now concluded § 2422(b) does not require direct communication with an actual minor to be a violation of the statute, we accept it as settled law.
But, what is particularly disturbing is the manner in which law enforcement is able to not only ensnare but encourage an individual with thoughts of pedophilia into committing a criminal act. There was no minor in this case. There was an undercover cop and an individual fantasizing about what is admittedly repugnant behavior on the Internet. Hite did not speak to a minor. He did not expose himself to a minor. He did not do a single inappropriate thing with a minor. In effect, he was punished for his thoughts, not his deeds.
To be precise, law enforcement officers like Detective Palchak are this nation’s “thought police.” They seek out people with criminal thoughts and do everything within their power to seduce people with sexually deviant compulsions to act on those thoughts. This is not crime prevention. It is certainly not crime detection. What it truly is, is criminal thought detection and entrapment of those individuals with such thoughts. This runs against the constitutional grain in this country that people should be punished for what they do, not what they think.