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The only issue we discuss therefore is whether he is right that the conduct of which he is accused is not “sexual activity” within the meaning of the federal law.
A police officer entered an online chat room, where she “met” the defendant and identified herself as a 13–year–old girl. The defendant was not charged with attempting to touch the supposed girl, and of course that would be impossible in an online chat room. We need to decide whether “sexual activity” encompasses a broader range of acts than “sexual act.” If it did, one would expect the term to be defined in the statute, to indicate just how broad that range was.
Mannava, 565 F.3d 412, 414–15 (7th Cir.2009); United States v. Congress cannot know in advance what conduct the state will decide to make criminal: if Indiana made leering a crime, and “sexual activity” were defined as broadly as the U. Attorney asks us to define it in this case, a minor offense would subject the offender to a 10–year minimum prison sentence. Last the government cites cases in which courts have referred to masturbation as a form of sexual activity. 424 (10th Cir.2005), involved facts similar to those of this case, but again masturbation was merely assumed to be sexual activity within the meaning of section 2422(b). “[T]he tie must go to the defendant.” United States v. In sum, for Taylor to be convicted of fondling under § 35–42–4–5, the government had to prove that he was in the presence of a child. The first way would proscribe any solicitation of a child to fondle herself, even if it is at a location and time apart from the adult.
Benson (argued), Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff–Appellee. Martin (argued), Attorney, Viniyanka Prasad, Attorney, Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant–Appellant. The cases hold (though more often just assume) that the “criminal offense” to which the statute refers can be a state rather than a federal crime, United States v. For a federal statute to fix the sentence for a violation of a broad category of conduct criminalized by state law, such as “any sexual activity for which any person can be charged with a criminal offense,” is a questionable practice. Explicitly defining sexual activity to include producing child pornography was needed only if the term “sexual activity” requires contact, since the creation of pornography doesn't involve contact between the pornographer and another person; this is further evidence that “sexual activity” as used in the federal criminal code does require contact. 3 (7th Cir.2008)—another case factually similar to the present one—the question of the meaning of the term “sexual activity” in section 2422(b) was neither raised by the appellant nor answered by the court. But when there are two equally plausible interpretations of a criminal statute, the defendant is entitled to the benefit of the more lenient one. It has not qualified the term with “actual or constructive,” and if the term “presence” is expanded to include constructive and actual presence, that development should not come from the courts, especially the federal courts. Under Indiana law, a person is guilty of soliciting a minor if the person “solicits” the child “to engage in (1) sexual intercourse; (2) deviate sexual conduct; or (3) any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person.” Ind. There are two ways to read the statute: does the solicitation have to be for “fondling” or “touching” with the other person, or does simply instructing a person to do so apart from the adult qualify.
A thorough review of this development of the law on the issue of presence and technology is presented in Maj. Pflaum, Shocking and Embarrassing Displays On–Line: Recent Developments in Military Crimes Involving Indecent Conduct Via Webcam, Army Lawyer (March 2010).4.
The defendant does not contend in this appeal that the conduct that he was accused of engaging in did not violate the Indiana statutes. Elsewhere in the vast body of federal statutory law we find scattered references to “sexual conduct,” “sexual act,” and “sexual activity” or “sexual activities,” but the terms seem to be regarded as synonymous, as in 42 U. One might think that “sexual activity” connoted a series of acts rather than a single act: for example, being a sexual predator rather than committing a single act of sexual predation, or being a prostitute. If “sexual activity” is no broader than “sexual act,” it doesn't include solitary sex acts either. § 2256(2)(A)) that criminalizes films and videos of children masturbating. It was also during this typed conversation that “elliegirl1234” twice asked whether she and Taylor would meet, and twice Taylor told her that they could not—in his words, their relationship would remain a “fantasy.”Here, Taylor did not want to meet and have sex with “elliegirl1234,” nor did he seek to meet “elliegirl1234” so he could fondle her. As a matter of statutory construction, when we have terms that are open to competing definitions, we usually define them in reference to the terms they appear with. He contends rather that such conduct is not “sexual activity” within the meaning of the federal statute, and therefore that his conviction—which was solely for violating federal law—should be quashed. But that is not argued (it would make the express reference to prostitution in the statute redundant, though many statutes are littered with redundancies), and anyway there is a separate provision for enhanced punishment of sex-crime recidivists. Congress elsewhere has defined “sexually explicit conduct” to include masturbation, but that's in a statute (18 U. (Maybe the defendant in this case could have been charged with attempting to produce child pornography because he asked the supposed minor to masturbate for him on her webcam. The only fondling that Taylor solicited was for “elliegirl1234” to touch herself, apart from him. As the Supreme Court has cautioned, the rule that “a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings to avoid the giving of unintended breadth of the [legislature].” National Muffler Dealers Ass'n, Inc. This is more than forfeiture; it is waiver; for he emphasizes the breadth of the Indiana statutes in order to bolster his claim that they should not be deemed absorbed into the federal statute. That takes the case out of the typical solicitation scenario where an adult solicits a minor to meet and engage in sexual conduct, Laughner v. “This venerable rule [the ‘rule of lenity,’ as it is called] not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. I do, however, agree that there are serious problems with this case: I do not believe that Jeffrey P. The government alleged that Taylor could be charged with fondling in the presence of a minor and solicitation. The Indiana statute does not qualify the term “presence” with words like “actual” or “constructive”; it simply states the adult must fondle himself “in the presence of” a minor. When someone solicits sex and presumably deviate sex, it requires another person—those acts cannot be done alone. For his more serious Indiana offense (child solicitation involving use of the Internet, which Indiana law treats as an aggravating circumstance), he could be sentenced to eight years in prison by an Indiana court. I would not go so far and equate the term “sexual activity” with “sexual act.” Sexual activity is a broader term that includes things sexual that do not involve the actual physical encounter. Although Taylor failed to argue that his actions did not violate Indiana law, I would still address the argument on plain-error review. Here, the statute proscribes soliciting a child to engage in sex, deviate sex, and fondling.
Under § 2422(b), the government must establish that Taylor “induced” a minor “to engage in ․ any sexual activity for which any person can be charged with a criminal offense.” 18 U. Both definitions are spatial; they refer to a person being in a particular place with another individual. Although Indiana courts have not addressed whether the element of “presence” is satisfied by something other than actual physical presence, other courts have. And Georgia courts have held that conversations over phones and webcams do not put the adult in the presence of the child. A related rule of construction dictates that when specific words of limited meaning and application are followed by words of a more general meaning, “the general words are to be construed as including only those things that are like those designated by the specific words.” Salter v. If we read the terms fondling and touching in the same manner as sex and deviate sex, only fondling and touching that is done with the other person would be included, and not simply touching that occurs at a person's request but apart from the other person. And if the Indiana courts face a similar case and interpret the statute expansively, then it would be binding on us. When this statute was passed in 1984, Taylor's conduct was unimaginable.