Supreme Judicial Court (April 18, 2008)

In order to prove child enticement, the Commonwealth must show that the person who entices does so with the intent to violate one or more of the enumerated criminal statutes; in other words, that the person who entices does so with the required criminal mens rea.

In this case, the SJC interprets, for the first time, G.L. c. 265, §26C, the child enticement statute. The defendant was convicted of one indictment charging child enticement based on a series of instant email exchanges with undercover police officers who were posing as a 14 year old girl. The defendant appealed his conviction and the SJC granted his application for direct appellate review. The conviction was affirmed.

The child enticement statute, G.L. c. 265, §26C reads as follows (emphasis added):
"(a) As used in this section, the term 'entice' shall mean to lure, induce, persuade, tempt, incite, solicit, coax or invite.
"(b) Any one who entices a child under the age of 16, or someone he believes to be a child under the age of 16, to enter, exit or remain within any vehicle, dwelling, building, or other outdoor space with the intent that he or another person will violate section 13B, 13F, 13H, 22, 22A, 23, 24 or 24B of chapter 265, section 4A, 16, 28, 29, 29A, 29B, 29C, 35A, 53 or 53A of chapter 272, or any offense that has as an element the use or attempted use of force, shall be punished by imprisonment in the state prison for not more than 5 years, or in the house of correction for not more than 2½ years, or by both imprisonment and a fine of not more than $5,000."

A. The Defendant's Arguments: The defendant made several arguments challenging the statute's constitutionality. Each is addressed below:

1. No Child Under 16 Years of Age Existed
The defendant argued that it was impossible to convict him because no child existed. It is well established that factual impossibility is not a defense to a crime. Commonwealth v. Bell, 67 Mass. App. Ct. 271 (2006).

2. Mere Words Not Enough: Overt Act Needed
The defendant argued that he could not be convicted because he never engaged in conduct beyond merely sending words over the internet. He argued that an overt act such as traveling to an agreed location was required. The SJC disagreed, citing the plain language of the statute which defined "entice" in subsection (a). The Court noted that the statute does in fact require more than words, as the enticement must be accompanied by the intent to violate one or more of the enumerated criminal statutes; in other words, that the person does so with the required mens rea (see Section B below).

3. Vagueness
The defendant argued that the statute is unconstitutionally vague because it failed to give a reasonable person notice that an internet instant message conversation can give rise to criminal liability. The SJC disagreed. The Court held that the statute expressly defines "entice" and does not require "guesswork to determine whether any given words or gestures - whether they are communicated orally or in writing, in person or through electronic means - will fit within the meaning of the statute's terms." Also, because the enticing words or gestures must be accompanied by the requisite criminal intent set forth in subsection (b) of the statute, the statute provides a sufficiently clear forewarning of what it proscribes and adequate guidelines for law enforcement purposes (see Section B below).

4. First Amendment Violation
The defendant argued that the statute violated his right to free speech. The SJC disagreed. The statute does not prohibit specific words. It also does not ban anyone from communicating with adults or even minors about sexual topics. The child enticement statute does forbid anyone who possesses the requisite intent to violate one of the enumerated criminal statutes from enticing a child, or someone the individual believes to be a child.

B. The Required Mens Rea: The SJC also defined what the Commonwealth must prove regarding the defendant's intent. Subsection (b) requires the Commonwealth to prove that the defendant intended to violate one of a score of criminal statutes. Several of those crimes are strict liability crimes, where the Commonwealth is not required to prove that the defendant knew the victim's age as an element of the crime (e.g., statutory rape). Where such crimes are involved, there is a possibility that a person could be convicted of enticement if he, e.g., used the internet to induce other adults to engage in consensual sexual relations, but mistakenly corresponded with a child. The Court accordingly held that in all enticement prosecutions, the Commonwealth must prove that the defendant possessed a criminal mens rea - i.e., if a defendant is charged with child enticement and the Commonwealth seeks to prove that the intended offense was statutory rape, the Commonwealth must show that the defendant intended to have sexual relations with a child under 16 years of age. While the Commonwealth need not prove that the defendant knew the child's exact age, the Commonwealth must prove that he intended to direct his sexual advances to an underage individual.

NOTE: The SJC also decided another case on April 18, Commonwealth v. Filopoulos, which is an application of the Disler decision. It is attached as well.