The only issue we discuss therefore is whether he is right that the conduct of which he is accused is not “sexual activity” within the meaning of the federal law.
A police officer entered an online chat room, where she “met” the defendant and identified herself as a 13–year–old girl. The defendant was not charged with attempting to touch the supposed girl, and of course that would be impossible in an online chat room. We need to decide whether “sexual activity” encompasses a broader range of acts than “sexual act.” If it did, one would expect the term to be defined in the statute, to indicate just how broad that range was.
Cir.1972), was a pornography case; it had nothing to do with section 2422(b), and merely illustrates (as do the other cases cited by the government) that masturbation is a form of “sexual activity” in the ordinary-language sense of the term, which judges use on occasion just as laypersons do. And there is no reason to unsettle or expand the accepted definition of “presence” to fit conversations over webcams when it wouldn't fit a conversation over the phone.
Taylor's visual image on the computer doesn't make him anymore physically present than his voice does—it just enhances the effect. E.2d at 730 (noting “[b]ecause both telephone and computer communications are by electronic transmissions, we are unable to distinguish the two modes as it relates to the necessity of ‘presence’ ”). For that reason, I concur with the court's judgment. Concerning this statute, the only case discussing whether a webcam puts the adult in the minor's presence is a federal district court case where the defendant conceded that he was in the presence of the minor.
Chapter 117 of the code, which contains section 2422, doesn't have a definition section. Wikipedia defines “sexual activity” very broadly; the Wikipedia entry for “Human Sexual Activity” says that “sexual activity ․ includes conduct and activities which are intended to arouse the sexual interest of another, such as strategies to find or attract partners (mating and display behavior), and personal interactions between individuals, such as flirting and foreplay.” “Human Sexual Activity,” (visited April 1, 2011). This inference is reinforced by the fact that until 1998 section 2422(b) used the term “sexual act,” while the preceding subsection, 2422(a), used “sexual activity,” even though the two subsections were otherwise very similar, except that (a) concerns transporting minors across state lines rather than interstate solicitation and specifies a considerably lighter punishment (no minimum and a maximum of 20 years, versus a 10–year minimum and a maximum of life in (b)).
The next section after section 2422 states that as used in that next section “the term ‘illicit sexual conduct’ means ․ a sexual act (as defined in section 2246) with a person under 18 years of age.” 18 U. Does the government think that the term “sexual activity” in 18 U. In 1998, “sexual act” in (b) was changed to “sexual activity,” but the committee report uses the terms “sexual activity” and “sexual act” interchangeably, indicating that the terms have the same meaning—that the purpose of the wording change from “sexual act” to “sexual activity” was merely to achieve semantic uniformity of substantively identical prohibitions, rather than to broaden the offense in (b).
Dwinells, 508 F.3d 63, 72 (1st Cir.2007); United States v. No matter; the defendant does not question that “criminal offense” in section 2422(b) includes state crimes. In none was the question that this appeal presents raised. Root, 296 F.3d 1222, 1235–36 (11th Cir.2002), and United States v. Since a webcam did not place him in the presence of “elliegirl1234,” Taylor could not have been convicted of that offense. So, under that reading, a salacious letter that directed the minor to masturbate would be a crime.
Dhingra, 371 F.3d 557, 564–65 (9th Cir.2004), although the statute does not say so, unlike the RICO statute, which does. The government relied on two Indiana offenses to convict the defendant: “touch[ing] or fondl[ing] the person's own body ․ in the presence of a child less than fourteen (14) years of age with the intent to arouse or satisfy the sexual desires of the child or the older person,” Ind. The implication that Congress regards “sexual activity” as a synonym for “sexual act” is further supported by the fact that the statute brackets “sexual activity” with “prostitution,” which involves physical contact. The government argues that as a matter of ordinary usage, “sexual activity” includes masturbation. She said she had no webcam.)The government acknowledges that “sexual activity for which a person can be charged with a criminal offense” is explicitly defined to include producing child pornography. In one the court treated “sexual activity” as a synonym for “sexual acts.” United States v. Tello, 600 F.3d 1161, 1163 (9th Cir.2010), the defendant intended to have sexual intercourse with the (supposed) girl that he met in the chat room, and he actually traveled to meet her. Holt, 510 F.3d 1007, 1009 (9th Cir.2007), a case not cited by the government, is similar to Root and Tello: the defendant traveled in order to meet and have sex with the supposed minor. The next issue is whether Taylor could have been convicted under Indiana law for solicitation. The other construction would mean that the solicitation would have to be for fondling with the adult.
464, 14 A.3d 439, 445–46 (2011) (finding that masturbating over a webcam so a child can see would injure the child's morals).8.
The appeal requires us to construe the statutory term “sexual activity”—surprisingly an issue on which there is very little law. To repeat our basic point: if “sexual activity” and “sexual act” are synonymous in Title 18, as they appear to be, then “sexual activity” requires contact because “sexual act,” we know, does. Maybe our interpretation of section 2422(b) is no more plausible than the government's. Indiana's legislature has, however, made “presence” an element of the offense.
§ 2422(b), which provides that anyone who, “using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States[,] knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.” He was convicted by a jury and sentenced to the statutory minimum of 10 years in prison. Masturbation is also a “sexual act” in that sense, but not in the statutory sense. That's not to say there isn't a strong argument to be made that webcams and other similar technologies put two people in the constructive presence of one another.
Code § 35–42–4–5(c)(3) (“fondling in the presence of a minor” is the name of this crime), and “knowingly or intentionally solicit[ing] a child under fourteen (14) years of age [or believed to be so] ․ to engage in ․ any fondling or touching intended to arouse or satisfy the sexual desires of either the child or the older person.” § 35–42–4–6(b)(3) (“child solicitation”). We find nothing in the 1998 amendment or its discussion by members of Congress to suggest a legislative purpose of subjecting less serious sexual misconduct (misconduct involving no physical contact) to the draconian penalties in subsection (b). § 608(a)(7)(C)(iii)(IV), which defines “battered or subjected to extreme cruelty” to include “being forced as the caretaker relative of a dependent child to engage in nonconsensual sexual acts or activities.” It would be unrealistic to suppose that Congress never uses synonyms—that every word or phrase in a statute has a unique meaning, shared by no other word or phrase elsewhere in the vast federal code. True—but so does “sexual act.” Yet Congress as we know defined “sexual act” as excluding sex acts that do not involve physical contact between two people. While masturbating over the webcam, Taylor also had a conversation with “elliegirl1234” over Instant Messenger, in which he told her to touch and caress her vagina. These legitimate and competing readings render the final element ambiguous.
The defendant does not contend in this appeal that the conduct that he was accused of engaging in did not violate the Indiana statutes. Elsewhere in the vast body of federal statutory law we find scattered references to “sexual conduct,” “sexual act,” and “sexual activity” or “sexual activities,” but the terms seem to be regarded as synonymous, as in 42 U. One might think that “sexual activity” connoted a series of acts rather than a single act: for example, being a sexual predator rather than committing a single act of sexual predation, or being a prostitute. If “sexual activity” is no broader than “sexual act,” it doesn't include solitary sex acts either. § 2256(2)(A)) that criminalizes films and videos of children masturbating. It was also during this typed conversation that “elliegirl1234” twice asked whether she and Taylor would meet, and twice Taylor told her that they could not—in his words, their relationship would remain a “fantasy.”Here, Taylor did not want to meet and have sex with “elliegirl1234,” nor did he seek to meet “elliegirl1234” so he could fondle her. As a matter of statutory construction, when we have terms that are open to competing definitions, we usually define them in reference to the terms they appear with.
In the meantime, however, assuming the defendant's conception of the breadth of the Indiana statutes is correct, our interpretation of the federal statute will not allow the likes of the defendant to elude just punishment. The judgment is reversed with instructions to enter a judgment of acquittal. The court has presented a thorough comparative analysis of federal law and precedent to conclude that “sexual activity” and “sexual act” mean the same thing—under either label, any such act that does not involve physical contact between two people is excluded. The fondling statute provides, in relevant part, that it is a crime when an adult “touches or fondles the person's own body; in the presence of a child less than fourteen years of age with the intent to arouse or satisfy the sexual desires” of either the child or adult. He did not argue that using a webcam did not place him in the presence of a minor, and thus he could not be convicted under § 35–42–4–5(c).