Enticement of a Child
Fort Worth Federal Lawyer
Any criminal charges related to illicit relationships with children or other interference with minors are prosecuted strictly and punished severely. Enticement of a child is no exception. This harmless-sounding crime is anything but: the crime of Enticement generally comes with an allegation of some kind of sexual misconduct, and because it is in offense against a child it has the power to destroy lives and reputations. Federal Child Enticement cases are prosecuted by the U.S. Attorney’s Office following an investigation involving any number of Federal and local law enforcement agencies, which may include: Homeland Security, Customs and Border Protection, the FBI, U.S. Marshall’s, Texas Department of Public Safety, local police and sheriff’s offices. If you have been charged or you think you are under investigation for any crime related to Child Enticement, you need an experienced Federal criminal defense attorney representing you immediately. Before you speak with anyone else, contact a lawyer.
What Is Enticement?
The crime of enticement is a sexual crime, and often (depending on the Federal or state jurisdiction) involves a crime against a child. Because children are involved, it carries heavy penalties, and knowledge of such allegations can turn the alleged offender into a social outcast. Because each jurisdiction has different rules and regulations, it is important to focus on whether you are facing charges based on the Federal laws for child enticement or by Texas court. Continue reading below to decipher the elements, punishments, statute of limitations and related crimes.
Topics Covered Below:
Enticement is a legalese word that brings to mind many definitions: something used to attract or to tempt someone; a lure; something that persuades one to perform an action for pleasure or gain; the act or pressure of giving in to a desire especially when ill-advised. The Federal legal definition of Enticement is covered under 18 U.S. Code Chapter 117 Transportation for Illegal Sexual Activity §2422– Coercion and Enticement, which divides the offense into two broad areas of crime:
a. Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.
b. Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined in accordance with the applicable Federal law and can be imprisoned for not less than 10 years or life.
In layman’s terms: People commit enticement of a minor if they invite or persuade, or attempt to convince, a child to enter a secluded place, room, building or vehicle, while intending to commit unlawful sexual contact or sexual assault on the child. Children don’t have to have perceived the intent of enticement for someone to be convicted. An example of a subsection (a) offense: an unsupervised child or children playing at a park are convinced to enter a stranger’s car by the promise of ice cream and candy, and the stranger intends to take the child to their apartment to perform illegal sexual acts. An example of a subsection (b) offense: a regional computer crimes task force conducts a sting operation in which agents pose online as minors (younger than 18) and make contact with people who are having online discussions with minors about performing sexual acts; if a meet up is arranged then the online solicitor is arrested upon arrival by the task force. The specific punishment and elements required for the charge are explained under the applicable Sentencing Guideline.
The penalties for Enticement will differ depending on the type of enticement, the methods used, and the characteristics of the offender. The baseline punishment for charges under Federal law for Child Enticement is laid out in the statutory language: up to 20 years in prison if the victim is over age 18; a range of 10 years to life in prison if the victim is under age 18.
Sentencing Guidelines For Federal Child Enticement Charges
The following is an example list of factors considered during sentencing:
- The manner and means of communications between the offender and victim
- The nature of the communications and the plan that formed following communications
- Characteristics of the offender, including their background, history, prior criminal history, and education
- Past sentences in prior, similar cases
- The possible deterrent effects of the sentence, including whether the offender will require education, treatment, or other such resources
- Aggravating factors of the case:
- The use of a computer or other electronic communication device;
- The age of the minor victim, even if the minor is fictitious due to it being an undercover sting operation;
- Whether the offender has been found to have child pornographic material;
- The number of alleged victims
- Mitigating factors of the case:
- The offender having mental health issues, substance abuse issues;
- The offender not having a criminal history;
- The communication being less egregious in nature;
- Not having any communication with other minors
In cases such as this, aggravating factors could involve what’s called the “use of the computer,” which your attorney will work to combat. The government’s attempt to use this as an aggravating factor is misplaced because that enhancement was created before computers became so widely used. Almost every child enticement and traveling charge involves the use of a computer or smart phone, so its use as an aggravator is redundant.
Other factors that can aggravate or enhance a sentence are the age of the fictional or fictitious minor alleged in the case (if undercover officers are involved). If the fictitious minor or actual minor is under the age of 12 there can be a significant punishment enhancement. When a person is charged with Enticement then law enforcement agents can get a search warrant to search computers and phones, and if they find child pornography it could form the basis of another enhancement based on the enticement laws.
Because aggravating factors are so important to federal sentence enhancement it will be incumbent on your federal defense attorney to present every possible mitigating factor applicable to your child enticement case. Mitigating factors are usually more related to the accused person who is to be sentenced, whether they have mental health issues (previously diagnosed or not) or if there is a substance abuse problem that has played a role in affecting the accused’s mental state or mental capacity. A lack of prior criminal history, less-egregious nature of the communication, lack of other communication with additional minor(s) and absence of child pornography could also mitigate a sentence.
Federal Child Enticement Statute of Limitations
According to the Congressional Research Service (CRS), “A statute of limitations dictates the time period within which a legal proceeding must begin. The purpose of a statute of limitations in a criminal case is to ensure the prompt prosecution of criminal charges and thereby spare the accused of the burden of having to defend against stale charges after memories may have faded or evidence is lost.”
Similar to capital offenses (crimes punishable by death), enticement, child abduction and certain sex offenses may not have a corresponding statute of limitations. The child protection section, 18 U.S.C. 3283, permits an indictment or information charging kidnaping, or sexual abuse, or physical abuse, of a child under the age of 18 to be filed within the longer of 10 years after the offense or the life of the victim. It also extends the statute of limitations in sexual abuse cases generally and if not confined to the offenses found in the sexual abuse chapter of the federal criminal code.
“No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or kidnaping, of a child under the age of 18 years shall preclude such prosecution during the life of the child, or for ten years after the offense, whichever is longer.”
In contrast, 18 U.S.C. 3299 eliminates the statute of limitations in child sexual abuse cases arising under Chapter 117: Interstate or Foreign Travel for Unlawful Sexual Purposes. Just like the range in punishment for Enticement, the statute of limitations will vary depending on the type of enticement, numerous factors in the way the crime was committed, and the characteristics of the offender.
“Notwithstanding any other law, an indictment may be found or an information instituted at any time without limitation for any offense under section 1201 involving a minor victim, and for any felony under chapter 109A, 110 (except for section 2257 and 2257A), or 117, or section 1591.”
Conspiracies and Continuing Offenses
Statutes of limitation normally begin to run when the crime is complete, which occurs when the last element of the crime has been satisfied. The general conspiracy statute consists of two elements: (1) an agreement to commit a federal crime or to defraud the United States and (2) an overt act committed in furtherance of the agreement. Conspirators left uninterrupted will frequently continue on through several overt acts to the ultimate commission of the underlying substantive offenses which are the objectives of their plots. Thus, the statute of limitations for such conspiracies begins to run not with the first overt act committed in furtherance of the conspiracy but with the last. The statute of limitations under conspiracy statutes that have no overt act requirement begins to run with the accomplishment of the conspiracy’s objectives, with its abandonment or with the defendant’s effective withdrawal from the conspiracy. Concealment of the criminal plot after its completion is considered a natural component of all conspiracies. Consequently, overt acts of concealment after the objectives of the conspiracy have been accomplished may not be used to delay the running of the statute of limitations.
A continuing crime is one that goes on long after all the elements necessary for their prosecution fall into place. The statute of limitations for these continuing crimes is delayed or extended if either “the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” Toussie v. United States, 397 U.S. at 115. Continuing crimes include: escape from federal custody; flight to avoid prosecution; failure to report for sentencing; possession of the skin and skull of an endangered species; possession of counterfeit currency; kidnapping; failure to register under the Foreign Agents Registration Act; failure to register under the Selective Service Act; being found in the United States having reentered this country after deportation; embezzlement under some circumstances; possession of unregistered pipe bombs; failure to pay child support; possession of an immigration document obtained fraudulently; bank fraud; and health care fraud.
Other Federal Crimes Related to Enticement
- Aggravated Sexual Abuse, 18 U.S.C. 2241
- Sexual Abuse, 18 U.S.C. 2242
- Sexual Abuse of a Ward or Child, 18 U.S.C. 2243
- Abusive Sexual Contact, 18 U.S.C. 2244
- Sexual Abuse Resulting in Death, 18 U.S.C. 2245
- Failure to Register as a Sex Offender, 18 U.S.C. 2250
- Sexual Exploitation of Children, 18 U.S.C. 2251
- Selling or Buying Children, 18 U.S.C. 2251A
- Transporting, Distributing or Selling Child Sexually Exploitive Material, 18 U.S.C. 2252
- Transporting or Distributing Child Pornography, 18 U.S.C. 2252A
- Misleading Names on the Internet, 18 U.S.C. 2252B
- Making Child Sexually Exploitative Material Overseas for Export to the U.S., 18 U.S.C. 2260
- Transportation for Illicit Sexual Purposes, 18 U.S.C. 2421
- Travel Involving Illicit Sexual Activity with a Child, 18 U.S.C. 2423
- Filing False Immigration Statement, 18 U.S.C. 2424
- Interstate Transmission of Information About a Child Relating to Illicit Sexual Activity, 18 U.S.C. 2425
Fighting for a Not Guilty
In a case implicating Federal Child Enticement the specific facts of the alleged enticement and subsequent contact (if any) with the minor will be extremely important. So if you have been charged with Enticement is is imperative that you contact an experienced Federal defense attorney right away. Your attorney will need to narrow down the detailed facts, sometimes employing the assistance of an expert investigator, so that he can pinpoint the best areas of defense. We would expect the specific factors that are important in a child enticement case are: the nature and substance of the communications, if there was online chat, was the communication between the accused and an undercover officer or the accused and an actual minor, were arrangements made to meet in person. With a charge involving travel to engage in an illegal sexual act, the electronic communications are also important because normally there is the conduct leading up to the travel and also who the communications are with, the nature, plan, and substance of the communication with an actual minor that’s really important. In all cases involving electronic communication it will be incumbent on the government to prove the accused person actually participated in the communication, and thus your attorney may employ the services of a cyber forensic investigator to refute the government’s case.
Texas Enticement Charges
Enticement is also a crime under Texas’ statutes, can be a misdemeanor or felony offense, and can be charged alongside several other related misdemeanor and felony offenses to increase the State’s chances of conviction at trial. In many cases, a felony enticement case that can be charged against you in a Texas District Court could be charged against you in a Federal Court: it’s up to the separate jurisdictions to agree on who is going to pursue the case. In any Texas enticement case, you should seek the advice of an experienced federal attorney to find out whether the federal government is pursuing charges against you.
The Texas offense of criminal Enticement falls under Penal Code Chapter 25 Offenses Against the Family 25.04 Enticing a Child, and provides for misdemeanor and felony enticement:
(a) A person commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, he knowingly entices, persuades, or takes the child from the custody of the parent or guardian or person standing in the stead of the parent or guardian of such child.
(b) An offense under this section is a Class B Misdemeanor, unless it is shown on the trial of the offense that the actor intended to commit a felony against the child, in which event an offense under this section is a felony of the third degree.
This kind of offense is a Third Degree Felony in Texas, and is punishable by a possible range of 2 to 10 years in prison and a fine of up to $10,000.
Statute of Limitations
In some Texas cases, the statute of limitations clock begins to run the day the offence took place; in other cases the clock begins to run when the victim tells someone about the incident. In especially egregious classes of offense (such as murder), there is no such time limit. In Texas, the baseline felony statute of limitations is three years. Texas Code of Criminal Procedure 12.01.
The statute of limitations for all Class A and Class B misdemeanor cases in Texas is “two years from the date of the commission of the offense, and not afterward.” Texas Code of Criminal Procedure 12.02.
Similar to a federal enticement case, a felony enticement case filed in Texas District Court can be charged alongside related offenses that help to increase the State’s chances of successfully prosecuting their case. At the very least, indicting a defendant on numerous “counts” (or charges) related to the same offense acts to intimidate the defendant into pleading guilty to one of the lesser offenses, instead of vigorously defending the case on all counts. In such instances, the State will attempt to convince a jury that the child was enticed in order for the defendant to commit further offenses against the child. Depending on the facts of the case, the defendant can be charged with a very wide range of related offenses, including for example: solicitation of a minor, sexual performance by a child, kidnapping, online solicitation of a minor, trafficking, conspiracy, or sexual assault of a minor.
As an example: an adult who uses the Internet to communicate with a child (a person under 18 years of age, also an undercover officer the adult believes to be a person under 18 years of age) to persuade the child to take and transmit nude photos may be charged with online solicitation of a minor. The facts of the case get worse if the adult also attempts to persuade the child to meet up for sexual activity or to engage in sexually explicit conversations, which leads to a potential second degree felony punishment of up to 20 years in prison. And the charges can be brought even if the proposed meeting never takes place. Along with prison time and potential fines, the defendant could be ordered to avoid any use of the Internet, computers or smart phones, and committing sexually based offenses could be grounds for mandatory sex offender registry.