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St. Thomas Law Review

First Page

311

Document Type

Comment

Abstract

There is a danger that exists every time a child or minor logs onto the Internet, as pedophiles no longer need to confront their victims "face-to-face." Within the depths of their homes and personal offices, sexual predators have been able to extend their influence across the world and into every home where a child lives that comports to the predator's certain or specific tastes. In a survey conducted by the Crimes Against Children Research Center, the institution, housed at the University of New Hampshire, revealed that nearly one (1) in five (5), or nineteen percent (19%), of children using the Internet have received sexual solicitations. Before the advent of the Internet and its initiation into homes across the world, sexual predators were, for the most part, isolated from others who shared their predilection for children. However, the Internet has provided a venue in which sexual predators and pedophiles have created a "virtual community." Within these online or Internet communities, sexual predators and pedophiles can communicate with one another and exchange tips or pointers on how to get close to children. They can discuss "ways to ensure online anonymity and to encrypt images." Moreover, pedophiles and sexual predators no longer need to wait at school bus stops or hover about playgrounds; they no longer need to confront their victim face-toface, lollipop in hand. Sexual predators have found a haven in which to hunt, as pedophiles and predators alike, use the Internet not only to transmit and traffic child pornography, but also to enter the proverbial front door of every home that has access to the Internet and, as a result, communicate with children. Cyber sex, defined as "sexual arousal using computer technology, esp[ecially] by wearing virtual reality equipment or by exchanging messages with another person via the Internet," is the potential result of this interaction between the predator and its prey. Even within the scope of the potent legislation enacted to protect children using the Internet and to punish those who intend to exploit or cause children harm, it must be determined whether further legislation is necessary in order to completely prohibit and criminalize sexually charged encounters between sexual predators and minors on the Internet and whether such legislation could survive constitutional analysis. With this objective in mind, this comment is divided into the following subsections. To begin, as to whether the online "requests," or activities, initiated by sexual predators against minors that cause the child to succumb to the tactics and methodology of the sexual predator can give rise to criminal liability, it is evident that such an inquiry requires a hypothetical proposition in order to prepare the canvas for discussion. That backdrop is provided, cumulatively, by the real-life experiences of Justin Berry and his tragic "coming of age" story, as Justin found himself to be the target of a barrage of sexually charged requests after logging onto the Internet. This comment will continue with a discourse on the current state of pedophiles in the media and the recognition of community resources acting as "watchdogs," for this issue of online sexual predators (and their abhorrent activities) has become an acute and alarming operation, with its effect possibly offending all households with Internet access as well as all children who venture to use it. A discussion of former and current federal legislation surrounding the Internet and activities involving children will follow. Such an examination serves as not only a beacon of Congress's ambition to protect children online but, also, a milieu in which it can be shown what the current legislation does not specifically prohibit: the sexually explicit conversation between a sexual predator and a minor. This comment will continue with an overview of select state statutes whose construction and function would support the conclusion that there is room for this form of legislation. Moreover, certain cases from these and other states will be highlighted in order to demonstrate the activities and methods of the sexual predator, as well as elucidate the role of law enforcement in quashing these sexual pursuits and prosecuting the predators. Finally, this comment will conclude with a review and analysis of both the present defenses to online child solicitation as well as potential defenses and constitutional concerns surrounding the proposed statute that could, functionally, criminalize this predatory behavior on the Internet.

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