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Chapter 117 of the code, which contains section 2422, doesn't have a definition section. Wikipedia defines “sexual activity” very broadly; the Wikipedia entry for “Human Sexual Activity” says that “sexual activity ․ includes conduct and activities which are intended to arouse the sexual interest of another, such as strategies to find or attract partners (mating and display behavior), and personal interactions between individuals, such as flirting and foreplay.” “Human Sexual Activity,” (visited April 1, 2011). This inference is reinforced by the fact that until 1998 section 2422(b) used the term “sexual act,” while the preceding subsection, 2422(a), used “sexual activity,” even though the two subsections were otherwise very similar, except that (a) concerns transporting minors across state lines rather than interstate solicitation and specifies a considerably lighter punishment (no minimum and a maximum of 20 years, versus a 10–year minimum and a maximum of life in (b)).

The next section after section 2422 states that as used in that next section “the term ‘illicit sexual conduct’ means ․ a sexual act (as defined in section 2246) with a person under 18 years of age.” 18 U. Does the government think that the term “sexual activity” in 18 U. In 1998, “sexual act” in (b) was changed to “sexual activity,” but the committee report uses the terms “sexual activity” and “sexual act” interchangeably, indicating that the terms have the same meaning—that the purpose of the wording change from “sexual act” to “sexual activity” was merely to achieve semantic uniformity of substantively identical prohibitions, rather than to broaden the offense in (b).

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.

After the Knowles case the military code was amended, and presence was clarified to only include physical presence.

(It's because she was actually an adult that the defendant was charged with and convicted of an attempt rather than of a completed crime; section 2422(b) explicitly punishes an attempt just as severely.) After making a number of sexual comments to her that she pretended to welcome, the defendant masturbated in front of his webcam, thus attempting to violate the “fondling in the presence of a minor” statute; and, in addition, by inviting the “girl” to masturbate, he attempted to violate the “child solicitation” statute as well. So if section 2422(b) criminalized a “sexual act” rather than “sexual activity,” it would be reasonably clear that he could not be convicted, unless the definition of “sexual act” elsewhere in Title 18 were thought to cast no light on its meaning in section 2422(b). Is watching a pornographic movie, or a pole dancer, or a striptease artist, or Balthus's erotic paintings, or Aubrey Beardsley's pornographic sketches, or Titian's “Rape of Europa,” or “Last Tango in Paris” a “sexual activity”? That is “sexual activity” in the literal sense, though it does not involve physical contact and so is not a “sexual act.” It is generally considered a rather minor sex crime, certainly not the sort of crime for which a minimum of 10 years in prison is a proper sentence. § 2422(b), would be courting a prison sentence of at least 10 years.

If an adult's masturbating in front of a child in an effort to arouse the child's sexual desires, and a child's fondling herself in a sexually suggestive way, as by masturbating, are forms of “sexual activity” within the meaning of the federal statute, then the defendant's violations of the two Indiana statutes violated section 2422(b) as well.“Sexual activity” is not a defined term in the federal criminal code (Title 18). The relevant part of section 2246, which appears in Chapter 109A of Title 18, defines “sexual act” as “the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years.” 18 U. On the contrary, we have previously used definitions found in Chapter 109A (the chapter in which section 2246, defining “sexual act,” appears) to assist in interpreting provisions in other chapters of Title 18 that punish sexual crimes. How about inducing someone to watch one of these shows? In Indiana, for example, “a person at least eighteen (18) years of age who knowingly or intentionally, in a public place, appears in a state of nudity with the intent to be seen by a child less than sixteen (16) years of age commits public indecency, a Class A misdemeanor.” Ind. And the maximum prison sentence for a Class A misdemeanor is only one year. Yet if the government's broad conception of “sexual activity” were accepted, then by virtue of that misdemeanor law a flasher in the lobby of the federal courthouse in South Bend, if charged under 18 U. One possible inference from the absence of a statutory definition of “sexual activity” is that the members of Congress (those who thought about the matter, at any rate) considered the terms “sexual act” and “sexual activity” interchangeable.

Cir.1972), was a pornography case; it had nothing to do with section 2422(b), and merely illustrates (as do the other cases cited by the government) that masturbation is a form of “sexual activity” in the ordinary-language sense of the term, which judges use on occasion just as laypersons do. And there is no reason to unsettle or expand the accepted definition of “presence” to fit conversations over webcams when it wouldn't fit a conversation over the phone.

Taylor's visual image on the computer doesn't make him anymore physically present than his voice does—it just enhances the effect. E.2d at 730 (noting “[b]ecause both telephone and computer communications are by electronic transmissions, we are unable to distinguish the two modes as it relates to the necessity of ‘presence’ ”). For that reason, I concur with the court's judgment. Concerning this statute, the only case discussing whether a webcam puts the adult in the minor's presence is a federal district court case where the defendant conceded that he was in the presence of the minor.

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Dhingra, 371 F.3d 557, 564–65 (9th Cir.2004), although the statute does not say so, unlike the RICO statute, which does. The government relied on two Indiana offenses to convict the defendant: “touch[ing] or fondl[ing] the person's own body ․ in the presence of a child less than fourteen (14) years of age with the intent to arouse or satisfy the sexual desires of the child or the older person,” Ind. The implication that Congress regards “sexual activity” as a synonym for “sexual act” is further supported by the fact that the statute brackets “sexual activity” with “prostitution,” which involves physical contact. The government argues that as a matter of ordinary usage, “sexual activity” includes masturbation. She said she had no webcam.)The government acknowledges that “sexual activity for which a person can be charged with a criminal offense” is explicitly defined to include producing child pornography. In one the court treated “sexual activity” as a synonym for “sexual acts.” United States v. Tello, 600 F.3d 1161, 1163 (9th Cir.2010), the defendant intended to have sexual intercourse with the (supposed) girl that he met in the chat room, and he actually traveled to meet her. Holt, 510 F.3d 1007, 1009 (9th Cir.2007), a case not cited by the government, is similar to Root and Tello: the defendant traveled in order to meet and have sex with the supposed minor. The next issue is whether Taylor could have been convicted under Indiana law for solicitation. The other construction would mean that the solicitation would have to be for fondling with the adult.

Code § 35–42–4–5(c)(3) (“fondling in the presence of a minor” is the name of this crime), and “knowingly or intentionally solicit[ing] a child under fourteen (14) years of age [or believed to be so] ․ to engage in ․ any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person.” § 35–42–4–6(b)(3) (“child solicitation”). We find nothing in the 1998 amendment or its discussion by members of Congress to suggest a legislative purpose of subjecting less serious sexual misconduct (misconduct involving no physical contact) to the draconian penalties in subsection (b). § 608(a)(7)(C)(iii)(IV), which defines “battered or subjected to extreme cruelty” to include “being forced as the caretaker relative of a dependent child to engage in nonconsensual sexual acts or activities.” It would be unrealistic to suppose that Congress never uses synonyms—that every word or phrase in a statute has a unique meaning, shared by no other word or phrase elsewhere in the vast federal code. True—but so does “sexual act.” Yet Congress as we know defined “sexual act” as excluding sex acts that do not involve physical contact between two people. While masturbating over the webcam, Taylor also had a conversation with “elliegirl1234” over Instant Messenger, in which he told her to touch and caress her vagina. These legitimate and competing readings render the final element ambiguous.

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.

The fact that a webcam is used does not change the analysis. In sum, although Taylor's conduct was inappropriate and extremely troubling, I do not believe it would constitute a crime under either of the Indiana statutes listed in the indictment.

Meaning: The property must be taken when the person and the robber are in the same physical place—presence cannot be divorced from physical proximity. The same would be said if they had that conversation over the phone. Indeed, adopting this sensible way of reading the statute keeps us from giving it unintended breadth. Here, the prosecutor was free to charge Taylor with many other crimes; in addition to the offenses pointed out by the court's opinion, the prosecutor could have charged Taylor with at least two federal offenses. 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. Szymialis, Sexting: A Response To Prosecuting Those Growing Up with a Growing Trend, 44 Ind. 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.




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Girls were more likely to be victimized than boys, though gay boys or those who were confused about their sexuality were also susceptible to predators, the study said. On the whole, offenders are a "diverse group that cannot be accurately characterized with one-dimensional labels," the report said.


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