Reforming Attempt Liability Under 18 U.S.C. § 2422(b): An Insubstantial Step Back from United States v. Rothenberg
The statute under which Internet sex predators are prosecuted for illicit online communications prohibits attempts to “knowingly persuade, induce, entice, or coerce” minors to engage in “any sexual activity for which any person” can be criminally charged. This broad language has allowed courts to gradually expand the statute’s reach by reducing the level of conduct considered sufficient to constitute a substantial step toward commission of the crime. The Eleventh Circuit’s decision in United States v. Rothenberg is especially illustrative of this problematic expansion, as the court held that a conversation between consenting adults, without more, was sufficient to support a conviction. This Note critiques Rothenberg for its flawed analysis of precedent; its inconsistency with the statute’s legislative history and principles of federal attempt jurisprudence; and its potential to yield absurd results, whereby criminal liability attaches to behavior many would consider relatively innocuous. A suggested reform—imposing a higher conduct requirement when defendants have communicated solely with adults and implementing a defense for proximity of age—would have the narrow impact of rectifying these problems while not diminishing law enforcement’s ability to protect children from online predators.
Korey J. Christensen,
Reforming Attempt Liability Under 18 U.S.C. § 2422(b): An Insubstantial Step Back from United States v. Rothenberg ,
61 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol61/iss3/4