University of Richmond Law Review Volume 38 | Issue 2 Article 4 1-2004 New Technology, Old Defenses: Internet Sting Operations and Attempt Liability Audrey Rogers Pace Law School Follow this and additional works at: https://scholarship.richmond.edu/lawreview Part of the Computer Law Commons, Criminal Law Commons, Criminal Procedure Commons, Evidence Commons, and the Internet Law Commons Recommended Citation Audrey Rogers, New Technology, Old Defenses: Internet Sting Operations and Attempt Liability, 38 U. Rich. L. Rev. 477 (2004). Available at: https://scholarship.richmond.edu/lawreview/vol38/iss2/4 This Article is brought to you for free and open access by the Law School Journals at UR Scholarship Repository. It has been accepted for inclusion in University of Richmond Law Review by an authorized editor of UR Scholarship Repository. For more information, please contact [email protected]. NEW TECHNOLOGY, OLD DEFENSES: INTERNET STING OPERATIONS AND ATTEMPT LIABILITY Audrey Rogers * I. INTRODUCTION Internet sting operations to catch adults preying on children have grown as exponentially as the public's use of the Internet. These operations typically involve an adult law enforcement offi- cer posing as a child for Internet contact with a would-be defen- dant.1 Defendants caught in a sting are charged with attempt be- cause by use of the sting operation, law enforcement has * Associate Professor of Law, Pace Law School. B.S., 1977, State University of New York at Albany; J.D., 1980, St. John's University School of Law. Many thanks to Mavis Ronayne and Jill Grinham for their invaluable research assistance. Thanks also to my col- leagues at Pace Law School for their suggestions and comments. 1. The Federal Bureau of Investigation ("FBI") started the Innocent Images National Initiative in 1995 to stop child sex exploitation through the Internet. Operating in FBI of- fices throughout the country, the probes have resulted in the conviction of over 3,000 indi- viduals. Press Release, Federal Bureau of Investigation, Operation Candyman (Mar. 18, 2002) available at http://www.fbi.gov/pressrel/pressrel2/cmO3l8O2.htm (last visited Nov. 22, 2003). A number of states have also commenced Internet sting operations. For exam- ple, in New York, the Westchester County District Attorney's High Technology Crimes Bureau currently operates a pedophile Internet sting operation. D.T. Max, Mouse Trapped, N.Y. MAG., Feb. 25, 2002, at 2-3. This operation, which began in July 1999, uses investigators from the District Attorney's office who log on to the Internet and pose as mi- nors. See id. at 26. The investigators log on to online chat rooms and wait for contact from possible pedophiles. Id. When a suspect does make contact, the investigator will then at- tempt to remove any possible defenses that the suspect might raise at trial, such as not having the requisite knowledge that the person he was communicating with was a minor; claiming that it was merely an Internet fantasy, and finally asserting that it was not he, the suspect, who the investigator was communicating with. Id. at 26, 78. See infra notes 149-51 and accompanying text. Once the suspect has attempted to set up a meeting with the "minor," the investigators then obtain a subpoena for the suspect's Internet Service Provider ("ISP") to obtain the subscriber's identification information. J. M. Hirsch, Cyber- Cop Searches for Pedophiles, SEATTLE TIMES, Sept. 6, 1998, at A20. A meeting is then set up with the suspect and when he arrives at the meeting place, he is arrested. See J. Allan Cobb, Evidentiary Issues Concerning Online 'Sting" Operations: A Hypothetical-Based Analysis Regarding Authentication, Identification, and Admissibility of Online Conversa- tions-A Novel Test for the Application of Old Rules to New Crimes, 39 BRANDEIS L.J. 785 (2001); Michael W. Sheetz, Comment, CyberPredators:Police Internet Investigations Under FloridaStatute 847.0135, 54 U. MIAMI L. REV. 405 (2000). 477 UNIVERSITY OF RICHMOND LAW REVIEW [Vol. 38:477 prevented the commission of the underlying offense against a child.2 These cases provide a contemporary opportunity to revisit some classic attempt liability issues. Some defendants have re- vived use of a defense of impossibility as they claim that it is le- gally impossible for them to be guilty of attempt to commit a crime against a child since no child was involved.' Other defen- dants assert that they were indifferent to the age of the victim and therefore cannot be said to have the intent necessary for at- tempt liability. Still other defendants claim they never believed they were dealing with a minor. These latter defenses raise the issue of the appropriate mens rea for attempt liability. Whether intent is essential for all the crime's elements or whether some mens rea less than intent is acceptable for a crime's attendant circumstances, such as the age or existence of the victim, are is- sues that had been relegated to narrow, abstract scholarly atten- tion. 4 With the advent of Internet sting operations, a fresh ex- amination of the issues is warranted. Part II of this article addresses the general principles of at- tempt liability, including a description of the doctrines of factual and legal impossibility and the rationale behind the historical treatment of these defenses. Part III describes recent Internet at- tempt cases, and Part IV analyzes issues raised by such cases. This article suggests that the new Internet cases provide further rationale for rejecting a distinction between factual and legal im- possibility that would allow the latter to be a defense. This article also discusses issues surrounding the appropriate mens rea for attempt, and its applicability to Internet cases, where the defen- dants claim ignorance or indifference as to the age of the target of his advances. It suggests that attempt liability is appropriate only where there is proof the defendant believed that he was deal- ing with a child. 2. See, e.g., United States v. Root, 296 F.3d 1222, 1223 (11th Cir. 2002) (charging de- fendant with attempting to persuade and entice a minor to engage in criminal sexual ac- tivity); United States v. Crow, 164 F.3d 229, 232 (5th Cir. 1999) (charging defendant with attempted exploitation of a minor); Hatch v. Superior Court, 94 Cal. Rptr. 2d 453, 458 (Cal. Ct. App. 2000) (charging defendant with transmitting harmful matter over the Internet to a child in an attempt to seduce the child). 3. See infra text accompanying notes 99-131. 4. See infra text accompanying notes 211-17. 2004l INTERNET STING OPERATIONS II. GENERAL PRINCIPLES OF ATTEMPT LIABILITY A. The Rationale of Attempt Liability The crime of attempt exists to punish those who have tried, but failed, to commit a substantive offense.5 "[The main rationale be- hind the [crime of attempt]" is preventative: to stop individuals who are bent on committing a crime by allowing early police in- tervention.6 Attempt provides a basis of punishment for actors who, by mere fortuity, have not completed a crime, but who are indistinguishable in blameworthiness from those who succeed.7 Yet, failure, which is intrinsic to attempt liability, creates the oft- noted apprehension of improper punishment.' Without the harm- 5. See generally GEORGE P. FLETCHER, RETHINKING CRIMINAL LAW § 3.3 (1978); WAYNE R. LAFAVE, CRIMINAL LAW § 6.2 (3d ed. 2000). 6. LAFAVE, supra note 5, § 6.2(b), at 538. Other means are available to allow early police intervention. See also State v. Young, 271 A.2d 569, 576-81 (N.J. 1970) (upholding a law prohibiting entry into a school building "with the intent of disrupting classes or of oth- erwise interfering with the peace and good order of the place"); LAFAVE, supra note 5, § 6.2(a), at 537-38. For example, possessory crimes, such as unlawful possession of burglary tools, can allow early intervention. See, e.g., N.Y. PENAL LAW § 140.35 (Consol. 2000). Similarly, other anticipatory offenses, such as stalking offenses, achieve the same goal. See, e.g., CAL. PENAL CODE § 646.9 (West 1999 & Supp. 2003). These other means of early intervention are outside the scope of this article. 7. MODEL PENAL CODE art. 5, introductory cmt. (Official Draft and Revised Com- ments 1985); see also LAFAVE, supra note 5, § 6.2(b), at 539. LaFave points out that in cer- tain situations, the person who fails to complete the substantive crime "may present a greater continuing danger" to the public than the person who is successful and therefore must be held liable. LAFAVE, supra note 5, § 6.2(b), at 539. Notwithstanding the rationale behind punishing attempts, typically, jurisdictions hold that blameworthiness differs be- tween a crime of attempt and a completed crime, and therefore a lower penalty is affixed for an attempt crime than for that of a completed crime. See, e.g., N.Y. PENAL LAW § 110.05 (Consol. 1998) (utilizing punishment classification offenses-the sentence for the crime of attempt is one classification below that of the completed crime); CAL. PENAL CODE § 664 (West 1999) (stating that the crime of attempt is punished by a sentence of one-half of the maximum sentence authorized for the completed crime). The Model Penal Code departs from this view and provides that the penalty for the crime of attempt may be the same as that of the completed crime. Exceptions are made for capital and first degree felony crimes. In those cases, they are graded as a felony in the second degree. MODEL PENAL CODE § 5.05 cmt. 2. 8. Some commentators fear that to allow the government to punish for failures might lead to overreaching on the part of the government. Paul H. Robinson, A Theory of Justifi- cation: Societal Harm as a Prerequisite for Criminal Liability, 23 UCLA L.