A federal trial judge in Washington is weighing whether to dismiss a charge against a man the authorities arrested in an undercover online sex crimes sting.
The man, Ivan Nitschke, was indicted in May on charges he attempted to coerce a minor into sexual activity and with traveling with intent to engage in illicit sexual conduct. Nitschke, who lives in Canada, has remained in custody since his arrest. He appeared in court today in Washington for a status hearing.
The prosecution stems from chats Nitschke had with a Metropolitan Police Department detective, Timothy Palchak, who posed undercover on a social networking site that, according to court records, is a dating forum for homosexual men.
At issue in the case is whether a person can be prosecuted for attempting to persuade an adult to grant access to a child for sexual conduct purposes. The charge, typically lodged against a person who chats with a minor or a fictitious child, carries a minimum-mandatory prison term of 10 years.
Nitschke’s lawyer, David Benowitz of Washington’s Price Benowitz, said in court papers (PDF) there’s no evidence Nitschke sought to persuade a minor, directly or indirectly, to engage in an illicit sex act.
U.S. District Judge James Boasberg said today in court he is studying the dispute and plans to issue a ruling next month. Boasberg said federal appellate courts have shown “some divergence” on the issue.
The Federal Public Defender’s Office in the District of Columbia jumped into the case as a friend-of-the-court in May in support of Nitschke.
An assistant federal public defender, Jonathan Jeffress, said “enticement and travel” sex crimes have increased substantially in the District in recent years. Of the dozens of recent cases, Jeffress said, only two have gone to trial.
The statute at issue in Nitschke’s case, Jeffress said in a brief (PDF), was “intended as a tool for law enforcement to apprehend and convict sex predators who seek out children online or through other facilities of interstate commerce.”
“Instead of apprehending the internet predator who is actively seeking children online–such as the kind of defendant one sees time after time in the cases from other Districts—the [United States Attorney’s Office] is instead arresting gay men interacting in adults-only chat rooms that have no history or reputation as locations where minors go online,” Jeffress said.
David Kent, an assistant U.S. attorney, said the statute in question is applicable to the facts in Nitschke’s case. The attempted persuasion, Kent said in court papers (PDF), includes a person’s communication with an adult who has influence over a minor.
Last Friday, a divided U.S. Court of Appeals for the D.C. Circuit upheld, in one of the rare cases that went to trial in Washington, a man’s convictions for attempted enticement of a minor and for traveling across state lines to engage in an illegal sex act.
Writing in dissent, Judge Janice Rogers Brown said she voted to vacate defendant Brandon Laureys’ conviction and 20-year sentence, saying it’s an open question in Washington whether the law allows a conviction for the persuasion of an adult.
The law, Brown said, “requires an attempt to bend the child-victim’s will.” There’s no legal support, the judge said, for a jury instruction that permits a conviction for “persuading an adult, absent any effort to win the child’s assent.”
Law enforcement officers are not lacking tools to target would-be sex offenders, Brown said. The judge pointed to statutes that penalize the solicitation of a minor under 16 for sex and the transportation of a minor for sex crimes.
“Clearly, Congress has not left prosecutors powerless against child predators who do not entice their victims on the internet,” Brown said.
She said later that if Congress wants to expand the law to make it a crime to persuade an adult to grant sexual access to a child, “Congress does not need our help rewriting the statute.”
Nitschke’s attorneys contend Brown’s dissent helps their cause. Prosecutors argue the majority on the panel did not disturb the power of the authorities to bring cases against defendants who communicate online with an adult intermediary.