In July of this year a 43 year old Falmouth man was arrested and charged with enticing a child under the age of 16 for sex and the dissemination of matter harmful to a minor. His lawyer is trying to get all charges dismissed claiming that the charges against the defendant cannot stand because there was no intent to rape the victim. The prosecution in this case alleges that the defendant, a convicted sex offender, tried to persuade a girl to watch him masturbate over the internet.
The Massachusetts child enticement statute is G.L. c. 265 sec. 26(C). The law states that anyone who entices someone under the age of 16 into or out of a building, vehicle, home or outdoor space with the intent to commit an enumerated crime shall be punished for up to 5 years in prison. Some of the enumerated crimes are assault and battery, indecent assault and battery, rape and rape of a child. The word entice has been held to mean to lure, induce, persuade, tempt, incite, solicit, coax or invite.
This is an interesting case. The prosecutor is contending that the enticement element of this offense in this case is met as a result of the defendant trying to keep the conversation going with the minor for as long as possible. The defense maintains that there could be no intent to lure the victim into a building, home, car or outdoor place because the actions occurred on the internet.
An April 2008 Massachusetts Supreme Judicial Court case is somewhat instructive on this issue. In Commonwealth v. Disler, 451 Mass 216 (2008) the Court held that enticement requires more than merely sending words. It further requires that the person who entices does so with the intent to violate one or more of the enumerated criminal statutes. In other words, he must have the criminal intent to do one of the forbidden acts. The decision becomes somewhat complicated in that the Court held that “[i]ntending to have consensual sexual relations with another adult would not provide the requisite criminal intent, even if it turns out that the object of the defendant’s advances was in fact a child.” This scenario will likely provide prosecutors with problems proving their cases.
The Falmouth case was taken under advisement. The judge hearing the motion said he intends to have a decision by December 19th. I would not be at all surprised to see this decision appealed by the losing party.