Entrapment as a Defense to Internet Luring

Many local Colorado police agencies have received funds to set up sting operations intended to detect and “net” – that is capture- suspects who chat with teenage – mostly young females online. Detectives pretend to be young teenage girls and the trap is closed and arrests are made.

When charges are filed in Colorado District Court – the charges are typically enticement of a child, § 18-3-305(1), or sexual exploitation of a child.

At trial – the affirmative defense of entrapment is often alleged in defense of the actions of the suspect.

The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced.

Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender’s fear of detection are used.

Entrapment is an affirmative defense. An affirmative defense is one in which a defendant admits doing the criminal act but seeks to justify, excuse, or mitigate the act. It is not available to a defendant who denies any wrongdoing.

A defendant must admit to having engaged in the proscribed conduct to be entitled to an entrapment instruction, however, he or she need not plead guilty in order to assert an entrapment defense.

.A defendant is guilty of sexual assault on a child when he or she “knowingly subjects another not his or her spouse to any sexual contact … if the victim is less than fifteen years of age and the actor is at least four years older than the victim.” Section 18-3-405(1).

A defendant is guilty of enticement of a child “if he or she invites or persuades, or attempts to invite or persuade, a child under the age of fifteen years to enter any vehicle, building, room, or secluded place with the intent to commit sexual assault or unlawful sexual contact upon said child.” Section 18-3-305(1) The crime of enticement of a child is complete if the defendant acted with the intent to cause a sexual assault on a child even though he was unable to complete it.

If the criminality of conduct depends on a child being younger than fifteen years of age, it is no defense that the defendant did not know the child’s age or that the defendant reasonably believed the child to be fifteen years of age or older. This is known as strict liability.

We are aware that the Internet sting operations of the type used here are common and are used in many jurisdictions. They are relatively inexpensive and easy to do, lack substantial risk to law enforcement personnel, and are directed to very serious offenses with respect to which there is considerable public concern. They are typified by a law enforcement officer assuming the identity of a child, engaging in extended Internet chats with the target, exchanging pictures, and arranging a meeting with a fictitious child at which the target is arrested. The charges may vary, but attempted sexual assault on a child is certainly common.

Several Legal Scholars have discussed the use of the defense of Entrapment in Internet Sting Cases. The analysis in these articles in helpful to read.

In a law review article , Dru Stevenson, Entrapment by Numbers, 16 U. Fla. J. L. & Pub. Pol’y 1 (April, 2005) and Audrey Rogers, New Technology, Old Defenses: Internet Sting Operations and Attempt Liability, 38 U. Rich. L. Rev. 477 (Jan. 2004).

These articles discuss the applicability of the defenses of legal or factual impossibility, fantasy, and entrapment, the latter two of which were asserted here. While the articles take somewhat different tacks, they both point out that these defenses do not readily fit into the Internet sting paradigm and have been, with rare exception, unsuccessful.

We are also aware that, because of the nature of the Internet, these sting operations approach a large general population, not an individual. It is, perhaps, inevitable that such an operation will ensnare an otherwise law-abiding citizen with sexual fantasies ” involving conduct which is illegal, immoral, taboo, or all three–upon which he or she would not otherwise act were the opportunity not presented to them. However, merely providing an opportunity does not implicate the affirmative defense of entrapment. Section 18-1-709.

It may also be the case that, once ensnared, the target would find it difficult if not impossible to admit that he or she intended, or wanted, to engage in sexual activities with a child.

In any event, a defendant must admit the culpable mental state necessary to the charges before the affirmative defense of entrapment is available to him.

If you are charged with an Colorado Internet Sex Crime Case, please consult with our law firm so that you fully and clearly understand your options.