To Catch a Predator: Recent Decision Clarifies Crime of Attempt

October 31, 2009

One of the fundamental aims of law enforcement is to prevent crime. To this end, courts and legislators in the United States have developed the crime of attempt.

October 31, 2009 /24-7PressRelease/ -- To Catch a Predator: Recent Decision Clarifies Crime of Attempt

Article provided by The Law Offices of David S. Shrager
Visit us at http://www.shragerlawfirm.com

The Crime of Attempt: A Balancing Act

One of the fundamental aims of law enforcement is to prevent crime. To this end, courts and legislators in the United States have developed the crime of attempt. Generally speaking, a person commits the crime of attempt when he or she demonstrates an intention to commit an underlying crime -- such as battery, murder, or robbery -- and takes a substantial step toward doing so. These sorts of laws are intended to give police, prosecutors and courts broad authority to punish those who will break the law if they can.

Of course, the justice system must strike a balance between preventing crime and protecting the rights of citizens who are guilty of nothing more than thinking about breaking the law. A man may buy matches intending to burn down a house, but what if he uses them instead to light a candle? Has he committed any crime?

While this balancing act is difficult enough when our fundamental freedoms are implicated, it becomes even more pressing when the innocence and well-being of our nation's children are involved.

U.S. v. Nestor: Clarifying Attempt

In the recent case of U.S. v. Brian Lee Nestor, the federal Third Circuit Court of Appeals examined a statute that makes it a crime to attempt to induce a minor over the phone or through the Internet to engage in criminal sexual activity. The court found Nestor guilty, even though no minors were involved in his case.

Brian Lee Nestor posted an Internet ad seeking sexual contact with a child. When Nestor's ad caught the eye of the F.B.I. and local police, agents contacted him by phone and by email, pretending to offer him access to a child and setting up a day for a meeting. On the day of the meeting, police arrested Nestor and charged him with, among other things, attempting to induce a minor to engage in illegal sexual activities.

To convict Nestor of attempt, prosecutors had to demonstrate that he intended to commit a crime -- in this case, sex with a child -- and had taken a substantial step in doing so. In this case, Nestor's intent to abuse a child was clear: he posted an ad on the Internet and enth­­­usiastically accepted officers' invitation to meet with a child.

But did Nestor take the substantial step necessary to be found guilty? After all, he never spoke to or emailed a child, but only police officers. In fact, the "child" in Nestor's case was a fabrication of police, invented to catch his attention.

The court ruled that these factors were not important: Nestor did take a substantial step towards inducing a child to commit illegal sexual activity because each of his actions -- posting his ad on the Internet, exchanging phone calls and emails with police and arranging a rendezvous for the encounter -- was calculated to put him in contact with a child.

Stopping Child Predators, But At What Cost?

Obviously, legislators and courts want to protect the rights, freedoms and innocence of our nation's children. But with the emergence of ever new technologies and means of communication, courts must take care to temper their desire to protect with a respect for the law. And although Brian Lee Nestor's behavior was reprehensible, the court's decision in his case may indicate a willingness to expand the reach of the criminal law beyond what was intended.

Know Your Rights

If you are charged with attempt to induce a minor or other similar crime, you may face serious consequences if convicted. An experienced criminal attorney will be able to provide you with information about your rights and the charges against you.

Article provided by The Law Offices of David S. Shrager
Visit us at http://www.shragerlawfirm.com

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