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§ 948.02(2), Attempted Sexual Assault (Intercourse); § 948.07 (Attempted) Enticement – Initiated Over Internet – First Amendment

State v. James F. Brienzo, 2003 WI App 203, PFR filed 10/10/03
For Brienzo: Jerome F. Buting

Issue/Holding: Prosecution for attempted sexual assault of a child initiated over the Internet isn’t barred by the first amendment. ¶¶23-24, applying State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287 (permitting prosecution for enticement). Same re: attempted enticement, ¶2:

We conclude that pursuant to State v. Robins, 2002 WI 65, 253 Wis. 2d 298, 646 N.W.2d 287, a case decided after the circuit court issued the order, the application of the child enticement statute to Brienzo’s alleged attempt to entice a child over the Internet does not violate his First Amendment constitutional rights.

This involves a sting operation, in other words the putative “victim” was in fact an adult, government agent, so that the crime would have been impossible to complete. The court limits the holding to attempted, rather than completed, enticement. ¶13 (“we need not even address whether the holding in Robins embraces a charge of completed child enticement”). Hard to see, though, how you can have completed enticement without then also having face-to-face contact. And, as the 7th Circuit has explained in a very similar circumstance — federal prosecution for attempting to entice a “minor” (in fact, a government agent) into pornographic activities — “(b)ecause it was factually impossible for Johnson to complete the offense, he can only be subject to prosecution for an attempt to manufacture child pornography.” U.S. v. Tery Johnson, 376 F. 3d 689 (7th Cir. 2004). Of course, to be guilty of attempt the defendant must actually believe that the individual is a minor. Id.

Use of government agents posing as “minors” in chat rooms is, it should be noted, an increasingly popular law enforcement device; thus, this basic fact pattern is likely to be recurrent. See, e.g., U.S. v. Hornaday, 392 F. 3d 1306 (11th Cir 2004) (upholding federal conviction for knowing attempt to entice).

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