Investigators and prosecutors can be proactive in capturing child predators—before a child is actually hurt—by charging Online Solicitation of a Minor.
Eric Devlin
A good example of such a case was an investigation brought to me by Detective Russell Ackley of the Harris County Sheriff’s Department. Ackley is assigned to the FBI’s Houston CyberCrime taskforce and frequently trolls the chat rooms in an undercover capacity. Detective Ackley, while online in one of his undercover identities as a 13-year-old girl, was approached by an individual who used the screen name of DieHardWithU. This suspect was one of the most graphic chatters that he has had in his career. Detective Ackley on 19 separate occasions engaged in Internet chats with the suspect, and on almost every occasion, the suspect solicited a meeting for sex, sent him links to pornographic websites, or discussed all the sexual acts that he wanted to do with the minor. This suspect would constantly set up meeting dates, but a day or so before would reschedule for a different date.
On one occasion during a particularly graphic chat, the suspect told the undercover identity that his 13-year-old granddaughter was in the same room with him. During the chat session, he alluded to molesting his youngest grandchild. At this point the investigation had to kick into high gear due to the possibility of a real child being subject to sexual abuse. Detective Ackley, during his chats with the suspect, was able to capture his IP address, and this information, combined with good observation skills during the chats, was able to identify the suspect as Anthony Kelly.
After a search warrant was issued for his house, we entered to find three of the suspect’s grandchildren living in the home with the suspect. During the course of the search we found sex toys in the house, and numerous images of child pornography on his personal computer. While conducting the search warrant, we also discovered a previous allegation that was reported to CPS, but had not shown up in our background check of the suspect. The report was never investigated because the suspect claimed that the child was mentally unstable and then shipped her off to live in another state before she could be interviewed. The items found and the layout of the house matched the child’s description exactly. In this particular case the need to get the children out of reach of this sexual predator dictated that we move fast and not wait for a meeting.
Anthony Kelly has pleaded guilty to both online solicitation of a minor and possession of child pornography and is awaiting sentencing from one of the toughest judges in the courthouse at the time of this writing. This was the first of several different investigations that began as a simple chat session and have resulted in the recovery of actual abused children.
Cyber predators
The Internet is a wonderful place. You can meet people with similar interests and communicate with them almost instantly, and you can be anyone you want without others knowing the truth.
That’s also the big problem with the Internet. The very anonymity that makes you feel so secure in venturing out into the unknown makes the online world ripe for scammers, hackers, and other criminals motivated only by greed. Most adults understand the dangers of sharing too much about themselves, such as bank account numbers and personal identifying information, with strangers, but the same is not true of our children. The Internet, with its vast potential for growth and learning, is also a place for predators to lurk.
TV news magazines focus on the easy situations, cases where a “good guy” with an undercover identity chats online with a predator, who travels a great distance to meet someone he believes to be a minor. He is instead surprised to find a houseful of reporters, police, or both. In these cases some will confess, some will run, and many will claim the meeting was merely a fantasy or that they were just there to warn the child’s parents. But again, these situations are the easy ones. What about those suspects such as Anthony Kelly, whose online chats are not the only way they’re preying on children?
Our office
The Harris County District Attorney’s Office Child Abuse Division handles both sexual and physical abuse of children up to age 13 from officers who work out of our local children’s assessment center as well as cases that fit specific requirements. The division is composed of seven prosecutors, two investigators, and six support staff. At present the cyber-related cases are handled by me and an investigator, and we are assisted by a second prosecutor. We work these cases in addition to our regular child abuse division assignment.
In the area of online child exploitation we work with officers and agents on cases involving Online Solicitation of a Minor, Possession of Child Pornography and Promotion of Child Pornography. We work closely with the FBI Cyber Crime Taskforce, which is composed of FBI agents, Houston police officers, and Harris County sheriff’s deputies; our local Internet Crimes against Children Taskforce (ICAC), which is run by Detective Matt Gray of Pasadena ISD; the Texas Attorney General’s Office Cyber Division, and our Houston Area Child Sexual Exploitation Taskforce (HACSET) operated by Sgt. Gary Spurger of Pct 4 and the local office of the Immigration and Customs Enforcement Agency.
Online Solicitiation of a Minor
In years past, without a meeting there would be no effective way of charging the actions of a predator like Kelly. In 2005, however, the Texas Legislature created the criminal offense of Online Solicitation of a Minor. It can be found in §33.021 of the Texas Penal Code. This section makes it a felony offense to solicit a minor over the Internet, electronic mail (e-mail), or text message for the purpose of engaging in sexual activity with that minor. It also makes it a felony offense either to communicate in a sexually explicit manner or distribute sexually explicit material to a minor. The statute defines “sexually explicit” as any communication, whether it is language, meaning written or spoken word, or material, including photographs or video, that relates to sexual conduct. This definition means that a predator who gets his kicks from talking “dirty” to a minor can now be charged. The legislature was also on target when it created its definition for “minor” for this statute. A minor is defined in §33.021 (a)(1) (A)–(C) as not only a person that is actually under age 17, but also any person that the suspect believes to be under the age of 17, or any person who represents herself to be under 17 (your undercover officer). The legislature added one more feature that is incredibly helpful to prosecuting these predators.
Anyone who has ever seen Dateline NBC’s To Catch a Predator will understand that one of the first things that comes out of the mouth of predators when they are arrested for this type of offense is that they never intended to go through with the sexual act or never intended to actually meet the child. It is especially true if the suspect never shows up at the pre-arraigned place. §33.021 (d)(1) states, “It is not a defense to prosecution under Subsection (c) that: 1) the meeting did not occur; 2) the actor did not intend for the meeting to occur; or 3) the actor was engaged in a fantasy at the time of commission of the offense.” This language takes away the “fantasy” defense that many have tried to use in cases such as these. It is this author’s opinion that the “fantasy” defense does not apply to the actions of communicating and distributing sexually explicit material because the main criminal act has already been committed by simply communicating in the sexually explicit manner and distributing the sexually explicit material rather than soliciting a meeting for some future act.
§33.021 makes it a third degree felony to communicate in a sexually explicit manner or distribute sexually explicit material to a minor unless the minor is under age 14, then it is a second degree felony. It is important to remember here that a minor, according to the statute, will be the age that your undercover officer has represented or that the suspect believes them to be, or the actual age if there is a real child involved. The act of soliciting a minor for the purpose of meeting for sex is a second-degree felony no matter the age. I have had a number of prosecutors, police, and federal agents comment on how much more effective our statutes seem to be.
Online Solicitation of a Minor also carries with it another useful feature. Upon creation of the statute, the legislature added the offense to art. 62.01(5)(J) of the Texas Code of Criminal Procedure as a reportable conviction/adjudication. It is not one of the lifetime registration convictions, as named in art. 62.101 of the Code of Criminal Procedure, so the duty to register is 10 years past the expiration of prison, parole, or probation.
Investigative tips
This area of criminal prosecution is fairly new, and to many people it may seem a daunting task because it brings up areas with which we are not familiar. When I tell people who are seeing these cases for the first time how good they can be, I am usually met with a blank stare. So what can you do to make your case rock solid? A well-trained officer will make sure that they follow a few very simple rules. First, only the predator is to initiate a chat; we don’t want to be accused of entrapment. This may seem like a silly argument for the suspect when he is hanging out in a chat room called Daddy-Daughter Sex, but it’s an unnecessary battle to fight.
Second, the officer must be very clear as to the age of his undercover identity when chatting with a suspect. This can be done in an obvious fashion by simply telling the suspect their age, usually in response to a suspect’s inquiry as to ASL (age, sex, location). The officer can also reinforce the age of the undercover identity in the mind of the suspect by slipping in comments about parents, friends, activities, and grade in school.
Third, the undercover officer should not just rely on chat logs, but should have software activated that makes a real-time recording of the chat. Being able to show the jury the chat, rather than just reading it, will be a far more effective presentation.
Fourth, remember the power of the search warrant. Search warrants, while time-consuming to write, can get you into the lair of the predator and gain you access to his tools of trade. The computer that the predator is using will often contain his copy of the same chat logs as your undercover officer. It will also show the screen names belonging to the suspect, and the undercover identity will often also be on the suspect’s “buddy list.” There will often be other chat logs as well, showing other actual minors with whom he has chatted, which is dynamite at punishment. These predators also usually have more items in their home and on their computer that are important to get. These individuals are not usually just chatting online with minors but are often collectors or manufacturers of child pornography. Possession or Promotion of Child Pornography is an offense that requires lifetime registration as a sexual offender. One of the frequent shortcuts that a prosecutor or a police officer will often attempt is to avoid the search warrant and either just charge the suspect or to attempt a “knock and talk.” While this may sometimes work, a simple refusal by the suspect pretty much guarantees that, by the time you come back with a search warrant, he has a lawyer on standby and the computer is at the bottom of the lake.
Lastly, and most importantly, make sure your officer or agent talks to the suspect in a formal capacity at some point in time. It may take some planning, but if you time the search correctly you can catch the suspect at home when executing your search warrant. By taking the time to also conduct an interview of the suspect in the midst of this search while he is being confronted with his chats, his resolve will often crater, and he will admit to both the chatting and the evidence you will eventually find on his computer during a forensic exam. With many of these individuals it is the anonymity of the Internet that gives them the courage to act out on their sexual interests in children, and when that very same anonymity is pierced by law enforcement, their courage and bravado rapidly disappears.
Countering defenses
So after you have gathered all of your evidence and made the arrest, what is going to happen in court? The vast majority of your suspects will be intelligent, well-educated males who have the funds to hire very good lawyers and will do anything they can to avoid going to prison. Your defense lawyer will usually offer the standard defenses. The first is the “not me” defense, meaning that, whoever was the chatter, it was not our suspect. This defense is easily overcome with the interview of the suspect and the search warrant. In addition, during the chats the suspect will often give many clues to his actual identity. In the case of Anthony Kelly, the suspect had a personalized license plate with his screen name on his vehicle, and he hinted that he worked at a certain computer store. During the attempts to identify the suspect, Ackley went to that very store and was waited on by the suspect.
The next defense that will often be used is the idea that anything you found on the computer or the links of the IP address is a result of a virus or that he was being hacked. For this reason it is vitally important to get the computers with a search warrant. A good forensic examiner will run virus scans on the computer and check for evidence of hacking. This examiner can usually disprove this defense. The interview can also be used to defeat this argument.
The last major argument that the defense will use is in regards to punishment, and it is one that, without an effective attack, judges will often accept. The suspect, if the investigation is conducted right, will usually bow to the inevitable fact that he is caught, and will attempt to cut his loss with a plea bargain. I have never met a suspect that wants to go to prison. The defense attorney will often use the argument that no one was actually hurt, that it is a “victimless crime.” The fact that this suspect was cruising the Internet looking for a minor child and that he stumbled upon an officer is fortunate. If that officer had not been there, more than likely he would have found an actual child. When the argument does not work on you, they will often take it to the judge or the jury. In the case of child pornography, it is important to remind the judge or the jury that there is still a victim there. The children in those pictures were victimized and sexually abused, and every time these pictures are downloaded, these children’s abuse is brought about again. I often use a psychologist from my local Children’s Advocacy Center to explain to the jury the devastating effect that sexual abuse can have on these children. Again, the interview with the suspect, the search warrant, and the examination of his computer are your best weapons against probation. Being able to place the suspect with access to real potential victims, the finding of child pornography, and often the multiple other actual minors with whom the suspect has chatted will bring the suspect’s predatory nature into full view.
The claim that the defense will often make, that it is one-time mistake, will be put to rest if you can show not only the many times he has actively sought out minors for his own sexual interest, but also the active steps that he has taken to satisfy his lust for children through child pornography. After being presented with the predator’s true instincts, the sentencing authority will be able to discard the concept that this is a victimless crime and one suitable for probation.
So why is it important to go after these predators if they aren’t willing to show up to a meeting with a minor? The reality of the situation is that these predators are out there in incredible numbers. Our children will also continue to be on the Internet at ever increasingly younger ages. The fact that the conversation happened between the predator and an undercover officer is actually fortunate. The predator was looking for any child he could find. If he had not stumbled upon the undercover officer, it is likely that he would have found a real minor instead. As I have said before, these investigations give us the opportunity to pierce the anonymity that the Internet represents and to get into the home of the predator. Many of these predators do more than chatting online and collecting child pornography; they have a willing desire to molest children, and they have the access to do so.
Conclusion
We have a responsibility to children to move swiftly to prevent harm from happening to those within the reach of these predators, or to end the harm being already done to them. The officers that work on these cases have seen scout leaders, Sunday school teachers, and school teachers engaged in these pursuits. These are individuals who have actively placed themselves in a position of contact with children, and if we can get to these predators before they are able to hurt one of our children, then we win…and so do our children.