Sex Predator Stung By Undercover Officer Who Self-Reported 3 Different Ages–US v. Haile

By Eric Goldman

US v. Haile, 2009 WL 3163556 (W.D. Ky. Sept. 29, 2009)

Let me start out by stating the obvious: sexual predation of minors is an unacceptable crime. I remain deeply troubled by how many Westlaw cases report on social networking sites being used to facilitate sexual predation, knowing that Westlaw-reported cases are surely a small fraction of the overall volume of activity. And as a parent, I still haven’t figured out how to set the appropriate Internet restrictions and supervision for my kids. So my post here isn’t meant to apologize for this defendant or the choices he made. At the same time, I remain equally troubled that paranoia over sexual predation can tempt us to bend the law, which I fear may have happened here.

The overall story is fairly familiar. An undercover officer sets up a fake online account to lure and trap child sexual predators trolling through social networking sites. After someone bites and the parties have a multi-iteration dialogue, the officer reels in the putative predator with an offer of realspace sexual favors. The putative predator shows up at the designated place presumably looking for a minor, and instead gets steel handcuffs. A contemporaneous news report of Haile’s arrest and a personal account from a friend.

But the bait and hook in this case raised my eyebrows. The saga starts at LouisvilleMojo.com, which had an 18-and-older social networking component. On there was the officer’s fake profile with a claimed age of 77. The profile told interested folks to contact “her” Yahoo alias. For reasons not adequately explained in the case, the defendant instead found the officer’s fake MySpace page for the same alias. On the page, the user claimed to be 62 years old, but the “about me” section said “I’m a girlie girl. I’m 14, and turn 15 on October 31! HALLOWEEN!!!!!” The defendant questioned the officer about the age issue in a Yahoo chat session as follows:

Defendant specifically inquired, “so your really 14?” Detective Arterburn, as “Amber,” responded: “lol” (or “laugh out loud”). Defendant’s reply to this was “?”, and there was no further response from “Amber” about her age.

With these data points, what can we infer about the defendant’s expectation of his chatting partner’s age? At various times, the officer reported “her” age as 77, 62 and 14 and gave a cryptic and implicitly playful non-response to a direct question. In this context, some folks might interpret the coy non-response as part of adult fantasy or game-playing.

The age issue is made even more complex by MySpace’s unique issues with age reporting. 14 year olds on MySpace are supposed to have restricted user accounts, so a defendant might assume that if he could find the account, the user either lied about her age (hence the direct Q) or was really over 14. Further, if the defendant was at all familiar with the Lori Drew prosecution, the defendant would know that lying to MySpace about one’s age (a violation of MySpace’s user agreement) is potentially criminal, thereby giving the defendant another reason to think that the user’s age reported to MySpace (62, not 14) was truthful.

The court rightly points out that the profile page (and the claimed age of 14) should have cautioned the defendant, and there is a little more evidence corroborating the defendant’s belief that the user was underage. At the same time, it is unclear why the courts expected the defendant to give more credence to the 14 reference than the other self-reported ages. By using three different self-reported ages, the user undeniably was lying about “her” age at least two places on the Internet. Accordingly, the defendant had no reason to assume that 14 was any more truthful than 62 or 77–a problem compounded by the non-response to the direct question, where “LOL” signals to me that the user was treating her age as part of a game.

I’m glad we have officers on the beat looking for online sexual predators. It’s a job I wouldn’t want, but I hope they do it well, especially if they can nab bad guys without any minors actually getting victimized. At the same time, where the age of the putative victim is central to the legal inquiry, it troubles me when an officer uses multiple incorrect ages as part of the trap.

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