On September 23, 2015, the Fifth Circuit in United States v. Schofield added a new offense in the definition to the Sex Offender and Registration Act (SORNA).
Enacted in 2006, SORNA is codified in Sections 16901 through 16962 of Title 42 of the United States Code. It established a national sex offender registry “to protect the public from sex offenders.” The statute is uncompromising. It demands that a sex offender “register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.
Definition of Sex Offender
SORNA defines a “sex offender” as an individual “who was convicted of a “sex offense.” Thus the essential component of the statute is precisely what constitutes a sex offense. SORNA, in typically clear government legalese defines a “sex offense” as:
- a criminal offense that has an element involving a sexual act or sexual contact with another;
- a criminal offense that is a specified offense against a minor;
- a Federal offense (including an offense prosecuted under section 1152 or 1153 of Title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of Title 18;
- a military offense specified by the Secretary of Defense under section 115(a)(8)(B)(C) of Public Law 105-119 (10 U.S.C. 951); or
- an attempt or conspiracy to commit an offense described in clauses (1) through (4).
Nicholas W. Schofield, a mechanic from Lake Charles, Louisiana, got into trouble with SORNA in November 2013 when the 24-year-old began sending “text messages” to a 15-year-old girl in San Angelo, Texas. He led the minor to believe he was an 18-year-old mechanic named “Nick.” The two traded text messages through February 2014, at which time the girl’s persona was assumed by a law enforcement agent.
The Fifth Circuit’s decision does not explain the events leading up to this change. What the court did say is that Schofield continued a text message “conversation” with the agent through April 2014. That conversation evolved into Schofield sending “images of his erect penis, videos of himself and others masturbating, links to pornographic websites, and text messages describing himself masturbating …”
Transferring Obscene Material to Minor
A federal grand jury indicted Schofield on May 14, 2014 on one count of transfer of obscene material to a minor and four counts of attempted transfer of obscene material to a minor in violation of 18 U.S.C. § 1470.
As is the case in most federal sex offense prosecutions, Schofield entered into a written plea agreement requiring that he plead guilty to one count of attempted transfer of obscene material to a minor; namely, a video of an adult masturbating. The remaining counts were dismissed. He received a 24-month prison sentence and was ordered to register as a sex offender under SORNA.
Schofield objected at sentencing to the sex offender registration requirement. This issue formed the basis for Schofield’s appeal to the Fifth Circuit. At the outset, the appeals court noted that Schofield’s criminal offense did not involve sexual contact, was not a military offense and that the § 1470 offense is not an offense under Subsection (3) of SORNA’s sex offense definitions. The court, therefore, said Schofield could be classified as a sex offender only if he committed an offense under Subsection (4) of SORNA’s sex offense definition; specifically, a criminal offense that involves “any conduct that by its nature is a sex offense against a minor” as set forth in 42 U.S.C. § 16911(5) (A) (ii), (7) (1).
Because the Fifth Circuit had never confronted the issue of whether a federal offense not specified as a sex offense under SORNA could nonetheless be considered a sex offense, the appeals court turned to a 2010 en banc decision by the Eleventh Circuit Court of Appeals for guidance in reaching its determination that Schofield’s offense was, in fact, a sex offense under SORNA’s residual clause.
Sending Obscene Material Children is a Sex Offense
The Fifth Circuit adopted the Eleventh Circuit’s conclusion that after that court examined SORNA’s plain language, structure, legislative history, and purpose, it was appropriate to find that the transferring or attempting to transfer obscene material to a minor is a “sex offense” within the meaning of the statute. The Eleventh Circuit concluded that, taken as a whole, SORNA “does not suggest an intent to exclude certain offenses but rather to expand the scope of offenses that meet the statutory criteria” and that to “exclude entirely the obscenity statute from SORNA’s reach would be inconsistent with the broad purpose and scope of SORNA …”
In effect, in placing the obscenity statute under the umbrella of SORNA, the Fifth Circuit (and the Eleventh Circuit) was compelled to find that Congress intended to “cast a wide net to ensnare as many offenses against children as possible.” Thus, the court said, “excluding a federal statute not explicitly enumerated in [SORNA] is inconsistent with ‘casting a wide net.’”
Congress intends to ensnare as many offenses against children as possible
Sex crimes against children are terrible crimes that go against the core of our most cherished fundamental beliefs. However, we have a “residual” problem with the Schofield case, as with many other “sex crimes” cases against children where law enforcement agents pose as minors and increase the heat of online conversations in attempts to solicit sex offenses.
Are these online crimes against children criminal? Of course. But should they call for the same levels of punishment and periods of sex offender registration as crimes against real children? That’s debatable.
This was a manufactured crime. Schofield traded text messages with the 15-year-old Jane Doe. He did not send her any obscene material or even attempt to do so until law enforcement became involved and assumed the identity of Jane Doe. Based on the facts of the case as reported in the Fifth Circuit’s opinion, a reasonable inference can be made that the agent most likely initiated the obscene messages and requested the obscene material.
A casual observer may infer ill motives to the Lake Charles mechanic because he was texting the minor, but here was apparently no crime committed until law enforcement ginned up the case. Schofield should be punished for his criminal acts. But his punishment should be reasonable and suited to the facts of the case.