Court tackles ‘sexual activity’ meaning in statute

The 7th Circuit Court of Appeals addressed Thursday the term “sexual activity” – an issue in which there is scant law – and ordered a man be acquitted. The man was convicted under federal statute for attempting to entice a girl he believed to be less than 18 years old to engage in any sexual activity while they chatted online.

Jeffrey Taylor appealed his conviction under 18 U.S.C. Section 2422(b), in which the government relied on two Indiana offenses to convict him: touching or fondling the person’s own body in the presence of someone less than 14 years old with the intent to arouse or satisfy the sexual desires of a child or the older person; and knowingly or intentionally soliciting a child under 14 years old to engage in fondling or touching intended to arouse or satisfy the sexual desires of the child or adult. Taylor chatted online with a girl he believed was 13 years old, but she was actually a police officer. Taylor fondled himself on his webcam and invited her to also touch herself.

The 7th Circuit addressed Taylor’s conduct and the meaning of the term “sexual activity” as it pertains to federal law. The term isn’t defined in the federal criminal code, but “sexual act” is defined. The judges had to decide whether “sexual activity” encompasses a broader range of acts than “sexual act.”

The judges hypothesized that perhaps because Congress didn’t define sexual activity, it considered the terms “sexual act” and "sexual activity" interchangeable. If they are synonymous, as they appear to be, then “sexual activity” requires contact because “sexual act” requires contact, wrote Judge Richard Posner.

“Congress will have to define ‘sexual activity’ more broadly than ‘sexual act’ if it wants to bring the kind of behavior engaged in by the defendant in this case within the prohibition of section 2422(b) via the fondling and child-solicitation offenses found in the Indiana criminal code, when the defendant neither made nor, so far as appears, attempted or intended physical contact with the victim,” wrote the judge.

In United States of America v. Jeffrey P. Taylor, No. 10-2715, the Circuit Court reversed Taylor’s conviction and ordered the lower court enter a judgment of acquittal.

Judge Daniel Manion didn’t agree with his colleagues’ assessment that the term “sexual activity” is the same as “sexual act,” but concurred with the majority that Taylor shouldn’t have been convicted. Judge Manion believed that Taylor couldn’t be successfully prosecuted for either of the Indiana crimes. He delved into one of the Indiana statutes used to convict Taylor – Indiana Code Section 35-42-4-(c)(3), which says it’s a crime when adults touch themselves in the presence of children less than 14 years old. But that statute doesn’t qualify the term “presence” with terms like “actual” or "constructive,” so Judge Manion believed since Taylor used a webcam when fondling himself, he wasn’t actually in the presence of the alleged minor. Other courts have held that phone conversations and webcams don’t put the adult in the presence of a child.

Judge Manion also argued Taylor couldn’t be convicted under Indiana law for solicitation because Taylor told the alleged minor that he didn’t want to meet her. He believed that statute was ambiguous, and when it was passed in the 1980s, Taylor’s conduct by using the Internet was unimaginable.

“While law constantly trails crime, in the context of sexual behavior and technology the problem is particularly clear—the old laws will not do. The legislature has to specifically address this lamentable behavior and determine what the law truly proscribes. Under our current laws, with the advent and prevalence of 'sexting' and virtual sexual behavior, many, many citizens are engaging in behavior that could make them felons,” he wrote. “It is not enough to let the courts figure it out and to try to see if old definitions fit this new and troubling behavior.”