UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey P. TAYLOR, Defendant-Appellant.
No. 10-2715.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 24, 2011. Decided April 7, 2011.
255
III. Conclusion
For the foregoing reasons, we AFFIRM the district court‘s judgment.
Philip C. Benson (argued), Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.
John E. Martin (argued), Attorney, Viniyanka Prasad, Attorney, Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant-Appellant.
Before BAUER, POSNER, and MANION, Circuit Judges.
The defendant was charged with violating
The cases hold (though more often just assume) that the “criminal offense” to which the statute refers can be a state rather than a federal crime, United States v. Mannava, 565 F.3d 412, 414-15 (7th Cir. 2009); United States v. Dwinells, 508 F.3d 63, 72 (1st Cir. 2007); United States v. Dhingra, 371 F.3d 557, 564-65 (9th Cir. 2004), although the statute does not say so, unlike the RICO statute, which does.
The government relied on two Indiana offenses to convict the defendant: “touch[ing] or fondl[ing] the person‘s own body ... in the presence of a child less than fourteen (14) years of age with the intent to arouse or satisfy the sexual desires of the child or the older person,”
This is more than forfeiture; it is waiver; for he emphasizes the breadth of the Indiana statutes in order to bolster his claim that they should not be deemed absorbed into the federal statute. The only issue we discuss therefore is whether he is right that the conduct of which he is accused is not “sexual activity” within the meaning of the federal law.
A police officer entered an online chat room, where she “met” the defendant and identified herself as a 13-year-old girl. (It‘s because she was actually an adult that the defendant was charged with and convicted of an attempt rather than of a completed crime; section 2422(b) explicitly punishes an attempt just as severely.) After making a number of sexual comments to her that she pretended to welcome, the defendant masturbated in front of his webcam, thus attempting to violate the “fondling in the presence of a minor” statute; and, in addition, by inviting the “girl” to masturbate, he attempted to violate the “child solicitation” statute as well. If an adult‘s masturbating in front of a child in an effort to arouse the child‘s sexual desires, and a child‘s fondling herself in a sexually suggestive way, as by masturbating, are forms of “sexual activity” within the meaning of the federal statute, then the defendant‘s violations of the two Indiana statutes violated section 2422(b) as well.
“Sexual activity” is not a defined term in the federal criminal code (Title 18). Chapter 117 of the code, which contains section 2422, doesn‘t have a definition section. The next section after section 2422 states that as used in that next section “the term ‘illicit sexual conduct’ means ... a sexual act (as defined in section 2246) with a person under 18 years of age.”
We need to decide whether “sexual activity” encompasses a broader range of acts than “sexual act.” If it did, one would expect the term to be defined in the statute, to indicate just how broad that range was. Is watching a pornographic movie, or a pole dancer, or a striptease artist, or Balthus‘s erotic paintings, or Aubrey Beardsley‘s pornographic sketches, or Titian‘s “Rape of Europa,” or “Last Tango in Paris” a “sexual activity“? How about inducing someone to watch one of these shows? Wikipedia defines “sexual activity” very broadly; the Wikipedia entry for “Human Sexual Activity” says that “sexual activity ... includes conduct and activities which are intended to arouse the sexual interest of another, such as strategies to find or attract partners (mating and dis-
One possible inference from the absence of a statutory definition of “sexual activity” is that the members of Congress (those who thought about the matter, at any rate) considered the terms “sexual act” and “sexual activity” interchangeable. This inference is reinforced by the fact that until 1998 section 2422(b) used the term “sexual act,” while the preceding subsection, 2422(a), used “sexual activity,” even though the two subsections were otherwise very similar, except that (a) concerns transporting minors across state lines rather than interstate solicitation and specifies a considerably lighter punishment (no minimum and a maximum of 20 years, versus a 10-year minimum and a maximum of life in (b)). In 1998, “sexual act” in (b) was changed to “sexual activity,” but the committee report uses the terms “sexual activity” and “sexual act” interchangeably, indicating that the terms have the same meaning—that the purpose of the wording change from “sexual act” to “sexual activity” was merely to achieve semantic uniformity of substantively identical prohibitions, rather than to broaden the offense in (b). H.R. Rep. No. 105-557, at 10, 20 (1998), reprinted in 1998 U.S.C.C.A.N. 678, 679, 688. The implication that Congress regards “sexual activity” as a synonym for “sexual act” is further supported by the fact that the statute brackets “sexual activity” with “prostitution,” which involves physical contact. We find nothing in the 1998 amendment or its discussion by members of Congress to suggest a legislative purpose of subjecting less serious sexual misconduct (misconduct involving no physical contact) to the draconian penalties in subsection (b).
Elsewhere in the vast body of federal statutory law we find scattered references to “sexual conduct,” “sexual act,” and “sexual activity” or “sexual activities,” but the terms seem to be regarded as synonymous, as in
One might think that “sexual activity” connoted a series of acts rather than a single act: for example, being a sexual predator rather than committing a single
The government argues that as a matter of ordinary usage, “sexual activity” includes masturbation. True—but so does “sexual act.” Yet Congress as we know defined “sexual act” as excluding sex acts that do not involve physical contact between two people. If “sexual activity” is no broader than “sexual act,” it doesn‘t include solitary sex acts either. Congress elsewhere has defined “sexually explicit conduct” to include masturbation, but that‘s in a statute (
The government acknowledges that “sexual activity for which a person can be charged with a criminal offense” is explicitly defined to include producing child pornography.
Last the government cites cases in which courts have referred to masturbation as a form of sexual activity. In none was the question that this appeal presents raised. In one the court treated “sexual activity” as a synonym for “sexual acts.” United States v. Lee, 502 F.3d 447, 448 (6th Cir. 2007). In two others, United States v. Root, 296 F.3d 1222, 1235-36 (11th Cir. 2002), and United States v. Tello, 600 F.3d 1161, 1163 (9th Cir. 2010), the defendant intended to have sexual intercourse with the (supposed) girl that he met in the chat room, and he actually traveled to meet her. United States v. Holt, 510 F.3d 1007, 1009 (9th Cir. 2007), a case not cited by the government, is similar to Root and Tello: the defendant traveled in order to meet and have sex with the supposed minor. The unreported decision in United States v. Wales, 127 Fed. Appx. 424 (10th Cir. 2005), involved facts similar to those of this case, but again masturbation was merely assumed to be sexual activity within the meaning of section 2422(b). In our case of United States v. Cochran, 534 F.3d 631, 634 n. 3 (7th Cir. 2008)—another case factually similar to the present one—the question of the meaning of the term “sexual activity” in section 2422(b) was neither raised by the appellant nor answered by the court. Finally, United States v. Womack, 509 F.2d 368, 372 n. 4 (D.C. Cir. 1972), was a pornography case; it had nothing to do with section 2422(b), and merely illustrates (as do the other cases cited by the government) that masturbation is a form of “sexual activity” in the ordinary-language sense of the term, which judges use on occasion just as laypersons do. Masturbation is also a “sexual act” in that sense, but not in the statutory sense.
To repeat our basic point: if “sexual activity” and “sexual act” are synonymous in Title 18, as they appear to be, then “sexual activity” requires contact because “sexual act,” we know, does. We cannot be certain that they are synonyms. Maybe our interpretation of section 2422(b) is no more plausible than the government‘s. But when there are two equal-
Congress will have to define “sexual activity” more broadly than “sexual act” if it wants to bring the kind of behavior engaged in by the defendant in this case within the prohibition of section 2422(b) via the fondling and child-solicitation offenses found in the Indiana criminal code, when the defendant neither made nor, so far as appears, attempted or intended physical contact with the victim. In the meantime, however, assuming the defendant‘s conception of the breadth of the Indiana statutes is correct, our interpretation of the federal statute will not allow the likes of the defendant to elude just punishment. For his more serious Indiana offense (child solicitation involving use of the Internet, which Indiana law treats as an aggravating circumstance), he could be sentenced to eight years in prison by an Indiana court. See
The judgment is reversed with instructions to enter a judgment of acquittal.
REVERSED AND REMANDED.
MANION, Circuit Judge, concurring.
The court has presented a thorough comparative analysis of federal law and precedent to conclude that “sexual activity” and “sexual act” mean the same thing—under either label, any such act that does not involve physical contact between two people is excluded. I would not go so far and equate the term “sexual activity” with “sexual act.” Sexual activity is a broader term that includes things sexual that do not involve the actual physical encounter.
I do, however, agree that there are serious problems with this case: I do not believe that Jeffrey P. Taylor could be successfully prosecuted for either of the Indiana crimes that the government alleged he committed, and for that reason, I respectfully concur with the court‘s judgment.
Under
The Indiana statute does not qualify the term “presence” with words like “actual” or “constructive“; it simply states the adult must fondle himself “in the presence of” a minor. And Indiana has not defined the term presence in the statute. Black‘s, however, defines presence as:
1. The state or fact of being in a particular place and time <his presence at the scene saved two lives>. 2. Close physical proximity coupled with awareness <the agent was in the presence of the principal>.
Black‘s Law Dictionary 1302 (9th ed. 2009). The Oxford English Dictionary provides much the same definition: “The place or space in front of or around a person; the immediate vicinity of a person.” 12 Oxford English Dictionary 392-93 (2d ed. 1989). Both definitions are spatial; they refer to a person being in a particular place with another individual. As a term in legal usage, “presence” comes up most often in the crime of robbery. In that context, a perpetrator must steal something from the other person‘s presence.
Although Indiana courts have not addressed whether the element of “presence” is satisfied by something other than actual physical presence, other courts have.1 Georgia has a statute that is worded similarly to the Indiana statute; it requires that the adult be “in the presence of” the child.
That‘s not to say there isn‘t a strong argument to be made that webcams and other similar technologies put two people in the constructive presence of one another. Many, many courts have held this.4 But in those cases, the courts have interpreted statutes that did not concern “presence“; instead some other term is used, usually the word “with.”5 In those states, presence is not an element of the offense; the prosecution only has to prove that the adult‘s actions would impair the health and morals of the child.6 Indiana‘s legislature has, however, made “presence” an element of the offense. It has not qualified the term with “actual or constructive,” and if the term “presence” is expanded to include constructive and actual presence, that development should not come from the courts, especially the federal courts.
In sum, for Taylor to be convicted of fondling under
Here, Taylor did not want to meet and have sex with “elliegirl1234,” nor did he seek to meet “elliegirl1234” so he could fondle her. The only fondling that Taylor solicited was for “elliegirl1234” to touch herself, apart from him. That takes the case out of the typical solicitation scenario where an adult solicits a minor to meet and engage in sexual conduct, Laughner v. State, 769 N.E.2d 1147, 1156 (Ind. Ct. App. 2002); Kuypers v. State, 878 N.E.2d 896, 898-99 (Ind. Ct. App. 2008), and makes Taylor‘s case unusual.
Under Indiana law, a person is guilty of soliciting a minor if the person “solicits” the child “to engage in (1) sexual intercourse; (2) deviate sexual conduct; or (3) any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person.”
As a matter of statutory construction, when we have terms that are open to competing definitions, we usually define them in reference to the terms they appear with. As the Supreme Court has cautioned, the rule that “a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings to avoid the giving of unintended breadth of the [legislature].” National Muffler Dealers Ass‘n, Inc. v. United States, 440 U.S. 472, 486 n. 20, 99 S.Ct. 1304, 59 L.Ed.2d 519 (1979) (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 6 L.Ed.2d 859 (1961)). A related rule of construction dictates that when specific words of limited meaning and application are followed by words of a more general meaning, “the general words are to be construed as including only those things that are like those designated by the specific words.” Salter v. State, 906 N.E.2d 212, 220 (Ind. Ct. App. 2009).
Here, the statute proscribes soliciting a child to engage in sex, deviate sex, and fondling. When someone solicits sex and presumably deviate sex, it requires another person—those acts cannot be done alone. Generally, when someone solicits a child for sex it means that the adult is soliciting the child to have sex with him, not that the adult is encouraging the child to have sex apart from the person doing the soliciting, or have sex as a general matter. If we read the terms fondling and touching in the same manner as sex and deviate sex, only fondling and touching that is done with the other person would be included, and not simply touching that occurs at a person‘s request but apart from the other person. This would confine the statute to the typical scenario where the adult seeks to meet the child to have
Of course, the government is not obliged to wait for Indiana to have a case on point before it can charge Taylor with a crime under
It bears noting one final reason for giving the solicitation statute a limited reading. When this statute was passed in 1984, Taylor‘s conduct was unimaginable. While law constantly trails crime, in the context of sexual behavior and technology the problem is particularly clear—the old laws will not do. The legislature has to specifically address this lamentable behavior and determine what the law truly proscribes. Under our current laws, with the advent and prevalence of “sexting” and virtual sexual behavior, many, many citizens are engaging in behavior that could make them felons. See Jordan J. Szymialis, Sexting: A Response To Prosecuting Those Growing Up with a Growing Trend, 44 Ind. L. Rev. 301 (2010) (a thorough article surveying the problem and offering suggestions for the legislature).8 It is not enough to let the courts figure it out and to try to see if old definitions fit this new and troubling behavior.
In sum, although Taylor‘s conduct was inappropriate and extremely troubling, I do not believe it would constitute a crime under either of the Indiana statutes listed in the indictment. For that reason, I concur with the court‘s judgment.