“Role Playing” in Cybersex Conversations Could be a Legitimate Defense in § 2422(b) Internet Solicitation Cases
By: Houston Criminal Defense Lawyer John Floyd and Mr. Billy Sinclair
18 U.S.C. § 2422(b) prohibits the use of a computer by an adult to send messages on the Internet to “persuade and entice” a person under 18 years of age to engage in sexual activity that constitutes a criminal offense.
On December 21, 2006 Dennis Joseph was convicted of violating § 2422(b) in the United States District Court for the Southern District of New York and sentenced to a term of 97 months in a federal prison. On September 9, 2008 the United States Court of Appeals, Second Circuit, reversed the conviction based on an erroneous instruction the trial judge gave to the jury. See: United States v. Joseph, ____ F.3d _____ (2nd Cir. 2008) [Slip Opinion No. 06-5911-CR]. The Second Circuit outlined the facts of the case as follows:
“Joseph is 40 years old, married, and has a six-year-old child. In August 2005, he was arrested for using the Internet to solicit a person he believed to be a minor to engage in sexual activity … After a seven-day trial in April 2006, a mistrial was declared when the jury was unable to reach a verdict.
“The evidence at the retrial included the following. In July, 2005, Joseph visited an Internet chat room called ‘I Love Older Men,’ where he initiated a conversation with an individual with the screen name ‘Teen2Hot4U,’ who purported to be a 13-year-old girl named ‘Lorie.’ ‘Teen2Hot4U’ was in fact Stephanie Good, a 55-year-old woman who spends 20 to 50 hours a week surfing the Internet for those she believes to be sexual predators and reporting her finds to the FBI.
“Using the screen name ‘DSax25’ and describing himself as a 40-year-old professional musician, Joseph had approximately 50 instant message and email chats with Good, almost all of which he initiated. Most of the conversations were explicitly sexual and mentioned sexual acts that Joseph stated he would perform with ‘Lorie.’ In one conversation Joseph mentioned he would be interested in meeting ‘Lorie’ and asked, ‘[L]et’s just say … hypothetically … where would you want to meet?’ ‘Lorie’ sent Joseph a picture, depicting Good at age 13 or 14 years.
“In a subsequent message, ‘Lorie’ referred to her friend ‘Julie,’ who was in fact FBI agent Austin Berglas posing as a 13-year-old girl. Joseph asked for a picture of ‘Julie’ and suggested that ‘Lorie’ give ‘Julie’ his email address. ‘Lorie’ later provided Joseph with ‘Julie’s’ screen name. Joseph began exchanging messages with ‘Julie,’ describing sexual acts he wanted to perform with her.
“On August 25, 2005, Joseph initiated contact and told ‘Julie’ that he wanted to see her and ‘Lorie.’ On August 30, he again contacted her and described the sexual activity the two might enjoy. That same day he mailed ‘Julie,’ indicating that he planned to be at Franklin Street in Manhattan the following day and asked ‘Julie’ to let him know if that date worked for her. The two exchanged various emails coordinating the meeting the next day. On August 31, Joseph sent his final message to ‘Julie,’ and they agreed if he was ‘really gonna be there’ because she did not ‘wanna be standing there waiting,’ and Joseph replied, ‘I can’t promise anything cause I’m still nervous and I don’t know how I will actually feel when I see you. Is that okay?’ The remainder of the conversation, as reported by Berglas during his testimony, was as follows:
“[Joseph]: Not okay?
“[‘Julie’]: You may not show up?
“[Joseph]: I promise I will show up. I promise.
“[‘Julie’}: So what do you mean? You may not like me?
“[Joseph]: I just have a problem because I am so much older than you.
“[Joseph]: But I will definitely be there and we can see then.”
Joseph, supra, Slip Opinion at 2-5 [internal citations omitted].
But “Julie” was not there the next morning when Joseph showed up at the café – the FBI was. The federal agents arrested Joseph as he looked into the café window. After being advised of his rights, Joseph told Berglas that he had come downtown to meet a girl he had met while chatting on the Internet. He indicated to the agent that he believed “Julie” was actually 13 years old but that he had no intention of having sex with her. He said he wanted to warn her against talking to older men on the Internet about having sex. Id., 5-6.
At the retrial, attorneys for Joseph sought to portray him as a man with a proclivity for muscular women who used the Internet for role-playing, who never knowingly communicated with a minor. Joseph’s wife testified in support of that defense, telling the jury that her husband was addicted to role-playing on the Internet and had a particular interest in muscular women. She also informed the jury that her husband was a member of an Internet group called “Muscleteens” – a website that solicits pictures of muscular girls between the ages of 5 and twenty. Id., at 6.
Joseph took the witness stand in his own defense. He told the jury that “DSax25” was “an idealized version of what … Dennis Joseph can’t do but can on the [I]nternet.” He said he browsed the Internet looking for women bodybuilders and his attorneys offered 25 profiles of people on his “buddy list” [instant messenger’s “friends”], 21 of whom were adult female bodybuilders. Id.
Having laid the predicate for an interest in cybersex conversations, Joseph told the jury that when he encountered “Lorie,” he was in what he believed was an “adult sex themed” chat-room and that she was an adult posing as a teenager. He said she was too familiar with sexual terminology to be a real teenager so he surmised that she was part of a “make-believe, pretend world.” He told the jury that he also believed “Julie” was an adult engaged in the same kind of role-playing. He said he became more convinced after “Julie” (who had passed herself off as a young gymnast) sent him a picture of herself with long nails because it would be difficult for a gymnast to have long nails. Id., at 6-7.
At this point Joseph told the jury he started having second-thoughts about the “Lorie” and “Julie” being adults role-playing after he arranged the meeting with “Julie.” He said that Julie’s angry tone after he told her that he could not “promise” a meeting made him think she might actually be a teenager. “What am I gonna do if [she] actually is a minor,” he told the jury he asked himself. He decided that if she was in fact a minor, he would take her into the café for lunch and explain to her that he had been pretending because he actually believed she was an adult role-playing as a teenager. Id., at 7.
The Government, on cross-examination, zeroed in on Joseph’s participation in the “Muscleteens” group. The Second Circuit explained:
“Joseph admitted joining the site, which describes itself as a group encouraging users to post pictures of girls ‘between 5 and 18’ showing off their muscles. He claimed that when he joined there was a picture on the front cover of a bodybuilder who was 19 or 20, and that he did not recall seeing pictures of younger girls. He also stated that the few times he looked at the site, the pictures had changed, and that each time they were ‘predominantly 19, 20, 21 and maybe 18-year-old bodybuilders. Joseph claimed that he stopped visiting the site when ‘it started to change.’
“On rebuttal, the Government called Special Agent Sean Watson of the FBI who testified that in June, 2006, shortly before Joseph’s trial, Watson had joined the Muscleteens group in an undercover capacity and had viewed all of the pictures posted in that group before August 31, 2005, the date of Joseph’s arrest. Over a defense objection, the prosecution was permitted to introduce pictures of young girls from the group.
“The evidence thus framed for the jury the issue of whether Joseph enticed ‘Julie’ to meet with him for the purpose of engaging in unlawful sexual conduct with a person he thought was a minor, or whether, as he claimed, he was engaged only in role-playing, met her to determine her true identity, and had decided not to have any involvement with her if she turned out to be a minor. By their verdict, the jury obviously rejected his defense.” Id., at 7-8.
The judge charged the jury that the Government had to prove that Joseph used the Internet to knowingly attempt to persuade or entice a person he believed was under 18 years of age to engage in sexual activity. The judge then gave the jury the common definition of the terms “persuade” and “entice.” He followed those definitions with this instruction:
“I instruct you, the government does not need to prove that the defendant attempted to wholly create desire where such desire never existed. The government only needs to show, beyond a reasonable doubt, that the defendant attempted to convince or influence the person he believed was a 13 year old girl to engage in a sexual act with him, or made the possibility of a sexual act with him more appealing.” Id., at 9-10.
§ 2422(b) requires only a showing that of an attempt to entice or an intent to entice – not an intent to perform the sexual act following the persuasion. See: United States v. Brand, 467 F.3d 179, 202 (2nd Cir. 2006). While the Second Circuit was satisfied that the judge had properly instructed the jury on the “entice” element, the appeals court had such grave concerns about the judge’s use of the “more appealing” formulation that it reversed Joseph’s conviction. The court explained:
“Joseph sought to defend the charge against him by claiming that he was only engaging in cybersex conversation (simulating sex via sexual communications over the Internet), without any intent to entice ‘Julie’ to engage in sexual conduct with him. He claimed that he agreed to meet her only to see if she was an adult role-player or really a child, and that, if she turned out to be a child, he would do nothing further. Of course, the jury did not have to credit his explanation, and the portions of his conversations that could be understood as intended to make the possibility of a sexual act with him ‘more appealing’ were evidence supporting an inference that he did intend to entice her. But the offense remains ‘enticing,’ and making a sexual act ‘more appealing’ in the absence of an intent to entice is not a crime. If jurors thought that Joseph only wanted to make ‘Julie’ think that sexual conduct with him would be appealing, but did not intend to entice her to engage in such conduct with him, they would have convicted him for having a cybersex conversation, which is not a crime, but not for violating section 2242(b).
“The risk of an improper conviction based only on the ‘more appealing formulation was heightened by the Government’s summation. First, the prosecutor told the jury that ‘the defendant wanted Julie to think that engaging in a sexual act with him would be appealing and enticing. And that, ladies and gentlemen, is a federal crime.’ Although the word ‘enticing’ was used, it was used to reflect the effect on ‘Julie,’ not whether Joseph’s intent was to entice.
“Then the prosecutor went further and invited the jury to rely solely on the ‘more appealing’ alternative in the charge. She told the jury: ‘The crime that he’s been charged with is enticement, that he was attempting to persuade or entice a minor into sexual activity. As I expect the judge to instruct you, that means the government need only show that the defendant attempted to make the possibility of a sexual act with him more appealing to someone he thought was a minor.’ In fact, that was not all that the Government needed to show.” Id., at 13-14 (emphasis original) [internal citation omitted].
The “more appealing” formulation is a derivative of a Ninth Circuit Court of Appeals decision. See: United States v. Rashovski, 301 F.3d 1133 (9th Cir. 2002). In Rashovski, the defendant argued that the evidence was insufficient to convict him of enticing women to come from Russia to the United States for the purpose of prostitution. The Ninth Circuit upheld Rashovski’s conviction because he had offered and actually paid for the women’s travel and the women had accepted his offer and traveled with his assistance. Id., at 1137. The appeals court concluded that enticement merely required Raskovski to convince or influence the women to make the trip, or made the possibility of the trip “more appealing.” Id.
The Second Circuit in Joseph said that while it agreed with the Ninth Circuit that making a “possibility more appealing” can be evidence of enticement, it stopped short of endorsing any notion that making a “possibility more appealing” absent evidence of enticement as a basis for a conviction. Id., at 15. The Joseph court, therefore, concluded that “because the jury charge permitted conviction on an invalid basis and because the risk that the jury grounded its verdict on that basis is not insubstantial, the defendant is entitled to a new trial.” Id., at 16.
The Joseph case illustrates the prevalence of cybersex conversations on the Internet. The anonymity of cyberspace travel is appealing to individuals with particular sexual idiosyncrasies who are uncomfortable sharing them in face-to-face human encounters. So they “role-play” these idiosyncrasies with anonymous partners in cybersex conversations. It’s sort of a modern version of “telephone sex” that was made popular in the 1970s and 1980s.
Joseph attempted to use Dr. James Herriot, an Associate Professor of Clinical Sexuality at the Institute of Advanced Human Sexuality in San Francisco, as an expert witness about “role-playing” in cybersex conversations. He would have testified that there is a distinct culture on the Internet in which one can become a “fantasy” character. His testimony would have clarified for the jury the realities and motivations of role playing via chat-rooms and emails. The trial court rebuffed Dr. Herriot’s proposed testimony, saying it would have been irrelevant.
The Second Circuit disagreed, encouraging the district court to give “more thorough consideration” to allowing Dr. Herriot’s testimony should the Government elect to retry Joseph. The appeals court suggested:
“Dr. Herriot’s field of study and experience qualified him to offer relevant testimony, He has conducted a large number of interviews and studied chat-room conversations to understand sexual behavior on the Internet.
“Although some jurors may have familiarity with Internet messaging, it is unlikely that the average juror is familiar with the role-playing activity that Dr. Herriot was prepared to explain in the specific context of sexually oriented conversation in cyberspace. Many prospective jurors at Joseph’s trial acknowledged that they had never visited a chat-room. Obviously a jury would not have to accept Joseph’s claim that he planned only to meet ‘Julie” to learn who she was and that she lacked any intention to engage in sexual conduct with her, but the frequent occurrence of such ‘de-mask[ing]’ of chat-room participants might provide support for his defense.” Id., at 22-23.
While defending § 2422(b) is especially difficult, the Joseph decision offers defense attorneys some possibly valuable assistance. The appeals court not only refused to allow the Government to expand the “enticement” element of that statute with the “more appealing” formulation but determined that “role playing” in cybersex conversations could be a legitimate defense in § 2422(b) cases. It’s not much but a defense attorney will always accept a kernel when the whole ear is not available.