http://www.indystar.com/article/20090104/NEWS02/901040362

Rulings target Internet sex stings
Appeals court says there must be an actual victim
By Jon Murray
Posted: January 4, 2009

The Internet stings police consider key to protecting minors from sexual predators may lose some of their power after two recent Court of Appeals rulings.

The use of undercover investigators as bait in Internet chats has become routine in Central Indiana. But the attraction for law enforcement -- the lack of an actual victim -- also became the basis for the reversal of two convictions against a Shelbyville man Wednesday by the Indiana Court of Appeals. That leaves in place a third related conviction.
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The reversal could mean new cases lead to lighter sentences. The decision and a similar ruling in July targeted the most serious charge usually leveled against suspects nabbed in online stings.

The court ruled 2-1 that attempted sexual misconduct with a minor, a Class B felony, requires that the victim be a minor; an undercover officer doesn't count. It also used the same reasoning to reverse Randy Gibbs' conviction of dissemination of matter harmful to a minor, leaving only a child solicitation conviction intact.

Gibbs, now 48, was arrested after he showed up at an Indianapolis apartment in 2006 with rope and condoms in his pockets following explicit online chats with an investigator posing as 15-year-old "Samantha."

Appeals Judge Melissa S. May dissented, arguing all charges should stand against Gibbs.

"He did all he believed was necessary to complete the offense of sexual misconduct of a minor," May wrote, "and he failed to complete the offense only because it was not possible under the circumstances."

Mario Massillamany, the Marion County prosecutor's spokesman, said the office had stopped using the attempted sexual misconduct charge in online sting cases after the July decision, which a different Court of Appeals panel issued in a Hamilton County case.

"We are always looking to protect children, " Massillamany said.

Now prosecutors must rely on charges of child solicitation, a Class C felony charge that applies under Indiana law as long as the defendant merely believes the intended victim is at least 14 and younger than 16.

The Class C felony carries a potential sentence of two to eight years in prison, far short of the maximum 20-year penalty for attempted sexual misconduct.

Hamilton County Prosecutor Sonia Leerkamp said she may lobby the General Assembly to broaden the sexual misconduct statute along the same lines as child solicitation. Until then, she said, her office will review how it charges online sting cases to conform to the rulings.

Leerkamp had hoped the Indiana Supreme Court would take up the Hamilton County case. Matthew Jachin Aplin, then 27, was arrested in 2006 after he chatted online with an investigator posing as a 15-year girl and showed up to a meeting inside a Fishers SuperTarget store.

But last month, the state Supreme Court declined to review the Court of Appeals' reversal of Aplin's attempted sexual misconduct conviction.

Prosecutors argue that online stings protect teenagers by snaring likely perpetrators, though judges often give reduced sentences or even probation -- as Aplin received -- because there are no actual victims.

No such luck for Gibbs, a Navy veteran with a clean record who expressed regret for bad judgment after a jury convicted him. Marion Superior Court Judge Sheila A. Carlisle gave him seven years in prison, including two years for child solicitation, with the possibility of spending the last four years in community corrections programs.

"I have serious concerns," Carlisle told him in October 2007, "about your ability to refrain from this conduct in the future."


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I'm not sure how I feel about this.

It's like the intention doesn't exist until all that criteria is fulfilled.

If a dude has the intent to knock off a bank, but doesn't have the skills or opportunity, should he be arrested? Just because a dude wants to fuck a 15yo doesn't mean he has the social skills to talk a 15yo into his bed.

As a parent, that doesn't make me feel safe, but I think that's the point of the ruling.

But that's the point of How To Catch A Predator. He does have the skills and intent to talk a 15 y/o girl into having sex with him. The point of the show is to catch those that make legitimate attempts to do just that. Anyone who wants to knock off a bank will not be arrested until they attempt to do so. The recorded chat logs serve as evidence of the predator's agenda.

I don't like the ruling of this case because, suppose the victim is a real minor, then what? That means she has to undergo the chat sessions, meet with the predator, then call for help, help arrives 40 minutes later.

This ruling completely defies the point and beauty of a stakeout.

but the undercover cop is not a 15-year-old girl, and we do not know what would happen if she was. maybe the 15-year-old girl is not taken by his advances, while the undercover cop absolutely is, and only for the reason of apprehension. i think there should be some sort of charge for the attempted crime, perhaps just not a class b felony.

Chris Hanson wants to catch the guy. He's going to agree to a meeting. You don't know if a 15yo girl would agree to the same thing. You don't know if the 15yo girl wouldn't get the fuck out the minute she saw the guy.

The point of these laws are to protect unsuspecting minors from those seeking to take advantage of them. Internet anonymity allows predators to do this with ease.

We don't know if every 15 y/o girl would agree to the same thing, but we do know it happens. One person knows it's wrong, and the other doesn't know any better.

And how exactly would the girl "get the fuck out"? It's the guy meeting at her place, and we don't know if he's armed or not. I don't think it's right to take those chances.

Perhaps my views on this will soften when I become a parent?

Or maybe when you meet a nice, young girl online.

I don't have a good answer for guys showing up a girl's houses, but how many dude on To Catch A Predator have been armed?

I don't think being a parent will soften your views at all. It's a tough position to be in as a parent who's intelligent, because of course you want your kids protected and of course you want sick pedos locked up. However, we also realize that it's a slippery slope as far as the methods concerned are.



Even though it sucks in that it will not allow these types of stings to hold up in court, I can't argue with this. The pedo may think it's a minor, but it's not. Basically the laws need to be looked at and re-written because on the internet, you never truly know who you're talking to.

This brings up a curious dilemma though...how is this different than a sting to catch someone hiring a hit man? I may *think* I'm hiring a killer, even though it's a cop. Couldn't the same logic as this ruling apply there too?

If my reading of this is right, the difference is the lack of a victim, not the intent of the perp. In both cases, there is the requisite intent to commit a crime, but with hiring a hitman, there is an actual victim, or target of the crime. With the Dateline sting, the cop is pretending to be the victim, not a co-conspirator as would be with a hitman or a hooker. There is no actual victim involved.

actually its not a cop thats the supposed victim, its actually a watch dog group that works with msnbc, and then the cops are stationed outside. i do not believe any cops are in the house at any point, unless they have two pedos arriving with in minutes of each other, then they hide the perps in the back somewhere.

i am not sure if the fact the cop isnt the "victim" changes any way the law can be construed or not

When a person is working in concert with police in a sting operation, they are treated by the courts as if they were a police officer, or agent of the state. Point is, the person is not a legitimate victim.


Oh, do give us more of your expert legal opinions.

i didnt know that, seeings as how the cops arent the ones who are doing the sting, they are just on standby, the watchdog group does all the legwork per se



i never once said i was an legal expert, i usually wait for Chris to put in his two cents on matters such as this, since he appears to be the more compentant legal person on this board

If we want less crime we should try to cut out the crime that the police create.

This kind of shit doesn't happen in Springfield.

or just shoot the assholes that commit crimes

Because that works.

and police create crime?