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Attempted Child Enticement, §§ 939.32, 948.07(1) — Internet Sting Operation

State v. Brian D. Robins, 2002 WI 65, on bypass
For Robins: Craig W. Albee

Issue: Whether attempted child enticement is a prosecutable offense, where the “child victim” was in fact a government agent posing as a child as part of a government sting operation.

Holding: That the “victim” was fictitious is the extraneous factor intervening to make the crime attempted rather than completed enticement. State v. Koenck, 2001 WI App 93, 242 Wis. 2d 693, 626 N.W.2d 359, ratified. ¶¶22-28. Nor is this an impermissible prosecution for attempt to commit a strict liability offense (proscribed in principle by State v. Briggs, 218 Wis. 2d 61, 66, 579 N.W.2d 783 (Ct. App. 1998)). Rather, the enticement contains specific, enumerated, prohibited intents; that the defendant doesn’t have to have knowledge of the child’s minority doesn’t make the offense strict liability. ¶¶29-30. Finally, the fact the crime couldn’t have been completed isn’t meaningful, as “legal impossibility” isn’t a defense to attempt. State v. Kordas, 191 Wis. 2d 124, 528 N.W.2d 483 (Ct. App. 1995) held controlling. ¶¶31-33.

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