North Carolina Criminal Law NC Criminal Law

When a person over 16, using a computer or other electronic device, and with the “intent to commit an unlawful sex act, entices, advises, coerces, orders, or commands” a person under 16 and at least five years younger than the first person to meet for the purpose of committing an unlawful sex act, the first person has committed the crime of solicitation of a child by computer in violation of G.S. 14-202.3. The crime also takes place if first person believes that the second person is underage, even if that is not the case.

The Court of Appeals recently decided State v. Fraley, a case in which a 32-year-old man interacted in a computer chat room with a police officer posing as a 14 year old girl. After various discussions of a sexual nature, he eventually arranged to meet her at a mall near her home. When he appeared at the mall, he was arrested.

I wanted to take a moment to make three points worth noting about solicitation cases, each of which is suggested to some extent by Fraley.

• In Fraley, the court of appeals adopted a broad interpretation of “entice[]” and “advise[].” Although I didn’t read Fraley’s brief, the opinion suggests that he argued along the following lines: sure, we talked about meeting and having sex, but I just asked her to do that — I didn’t offer her anything in exchange, so I didn’t entice her to do it, and I didn’t recommend that she do it, so I didn’t advise that she do it. That’s not a frivolous argument. A similar federal statute, 18 U.S.C. § 2422(b), includes “persuade” in its list of prohibited activities, and one could reasonably argue that the absence of that term from G.S. 14-202.3 is significant. On this view, G.S. 14-202.3 is intended to address cases in which the defendant has coerced the underage person or offered him or her an explicit material enticement, like a promise of a modeling career, United States v. Barlow, 568 F.3d 215 (5th Cir. 2009), or a motorcycle, United States v. Goetzke, 494 F.3d 1231 (9th Cir. 2007). Even in Fraley, perhaps one could argue that the defendant offered the inducement of physical pleasure, since he promised “good sex.” But the court’s analysis wasn’t that fine-grained. Instead, it cited dictionary definitions of “advise” and “entice,” as well as cases from other states, to conclude that the statute sweeps “rather broad[ly],” and includes Fraley’s conduct. The court didn’t say so explicitly, but the opinion leaves the impression that any effort to arrange a sexual rendezvous with an underage person falls within the statute’s scope.
• Proving solicitation cases is easier when the defendant shows up at the meeting location. The police waited to arrest Fraley until he arrived at the mall and approached a person dressed as the undercover officer said that she would be dressed. That’s strong evidence that he intended to commit an unlawful sex act, while if the police had arrested him at home, he might have been able to argue that he was just indulging his fantasies online but never intended to go through with the meeting. Such an argument isn’t necessarily a winner, but it has some support. Compare, e.g., United States v. Gladish, 536 F.3d 646 (7th Cir. 2008) (insufficient evidence to support a conviction for attempting to entice underage person into illegal sexual activity where the defendant proposed having sex but neither followed through with a meeting nor made unmistakable preparations such as renting a hotel room or buying a plane ticket; the evidence showed only that the defendant was full of “hot air”), with State v. Ellis, 188 N.C. App. 820 (2008) (holding that a search warrant application showed probable cause to believe that the defendant had committed an offense under G.S. 14-202.3 where his computer contained evidence of sexually explicit communications with an officer posing as an underage girl; the defendant has suggested meeting, but apparently had never attempted to meet).
• The statute now applies not just to computers but also to “any . . . device capable of electronic data storage or transmission.” When Fraley arose, the statute applied only to computers. Because most of the interaction between Fraley and the undercover officer took place in a computer chat room, this wasn’t a problem. But some of the contact took place by telephone, and there may have been some text messaging as well (the opinion refers to “an offline instant message”). These days, it’s easy to imagine a solicitation case arising based solely on text messaging, and its clear that the current version of the statute covers that.