In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2715
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JEFFREY P. T AYLOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:06 CR 169—James T. Moody, Judge.
A RGUED F EBRUARY 24, 2011—D ECIDED A PRIL 7, 2011
Before B AUER, P OSNER, and M ANION, Circuit Judges.
P OSNER, Circuit Judge. The defendant was charged
with violating 18 U.S.C. § 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
2 No. 10-2715
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. The appeal requires us
to construe the statutory term “sexual activity”—surpris-
ingly an issue on which there is very little law.
The cases hold (though more often just assume) that the
“criminal offense” to which the statute refers can be a
state rather than a federal crime, United States v. Mannava,
565 F.3d 412, 414-15 (7th Cir. 2009); United States v.
Dwinells, 508 F.3d 63, 72 (1st Cir. 2007); United States v.
Dhingra, 371 F.3d 557, 564-65 (9th Cir. 2004), although
the statute does not say so, unlike the RICO statute,
which does. 18 U.S.C. § 1959(a). For a federal statute
to fix the sentence for a violation of a broad category
of conduct criminalized by state law, such as “any
sexual activity for which any person can be charged with
a criminal offense,” is a questionable practice. Congress
cannot know in advance what conduct the state will
decide to make criminal: if Indiana made leering a
crime, and “sexual activity” were defined as broadly as
the U.S. Attorney asks us to define it in this case, a
minor offense would subject the offender to a 10-year
minimum prison sentence. No matter; the defendant
does not question that “criminal offense” in section
2422(b) includes state crimes.
The government relied on two Indiana offenses to
convict the defendant: “touch[ing] or fondl[ing] the per-
son’s own body . . . in the presence of a child less than
fourteen (14) years of age with the intent to arouse or
No. 10-2715 3
satisfy the sexual desires of the child or the older person,”
Ind. 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”). The
defendant does not contend in this appeal that the
conduct that he was accused of engaging in did not
violate the Indiana statutes. He contends rather that
such conduct is not “sexual activity” within the meaning
of the federal statute, and therefore that his convic-
tion—which was solely for violating federal law—should
be quashed.
This is more than forfeiture; it is waiver; for he em-
phasizes the breadth of the Indiana statutes in order to
bolster his claim that they should not be deemed
absorbed into the federal statute. 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. (It’s because she was actually an adult that the
defendant was charged with and convicted of an at-
tempt rather than of a completed crime; section 2422(b)
explicitly punishes an attempt just as severely.) After
making a number of sexual comments to her that she
pretended to welcome, the defendant masturbated in
4 No. 10-2715
front of his webcam, thus attempting to violate the
“fondling in the presence of a minor” statute; and, in
addition, by inviting the “girl” to masturbate, he
attempted to violate the “child solicitation” statute as
well. If an adult’s masturbating in front of a child in an
effort to arouse the child’s sexual desires, and a child’s
fondling herself in a sexually suggestive way, as by
masturbating, are forms of “sexual activity” within the
meaning of the federal statute, then the defendant’s
violations of the two Indiana statutes violated sec-
tion 2422(b) as well.
“Sexual activity” is not a defined term in the federal
criminal code (Title 18). Chapter 117 of the code, which
contains section 2422, doesn’t have a definition section.
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.S.C. § 2423(f). The
relevant part of section 2246, which appears in Chapter
109A of Title 18, defines “sexual act” as “the intentional
touching, not through the clothing, of the genitalia of
another person who has not attained the age of 16 years.”
18 U.S.C. § 2246(2)(D). The defendant was not charged
with attempting to touch the supposed girl, and of
course that would be impossible in an online chat room.
So if section 2422(b) criminalized a “sexual act” rather
than “sexual activity,” it would be reasonably clear that
he could not be convicted, unless the definition of
“sexual act” elsewhere in Title 18 were thought to cast
no light on its meaning in section 2422(b). On the
contrary, we have previously used definitions found in
No. 10-2715 5
Chapter 109A (the chapter in which section 2246, defining
“sexual act,” appears) to assist in interpreting provisions
in other chapters of Title 18 that punish sexual crimes.
United States v. Osborne, 551 F.3d 718, 720 (7th Cir. 2009).
Section 2422(b) is one of those provisions.
We need to decide whether “sexual activity” encom-
passes 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. Is watching
a pornographic movie, or a pole dancer, or a striptease
artist, or Balthus’s erotic paintings, or Aubrey Beardsley’s
pornographic sketches, or Titian’s “Rape of Europa,” or
“Last Tango in Paris” a “sexual activity”? How about
inducing someone to watch one of these shows?
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 Sex-
ual Activity,” http://en.wikipedia.org/wiki/Human_sexual_
activity (visited April 1, 2011). Does the government
think that the term “sexual activity” in 18 U.S.C. § 2242(b)
includes flirting? Well, how about “flashing”? That is
“sexual activity” in the literal sense, though it does not
involve physical contact and so is not a “sexual act.” It is
generally considered a rather minor sex crime, certainly
not the sort of crime for which a minimum of 10 years
in prison is a proper sentence. In Indiana, for example,
“a person at least eighteen (18) years of age who
6 No. 10-2715
knowingly or intentionally, in a public place, appears in
a state of nudity with the intent to be seen by a child less
than sixteen (16) years of age commits public indecency,
a Class A misdemeanor.” Ind. Code § 35-45-4-1(b). And
the maximum prison sentence for a Class A misdemeanor
is only one year. § 35-50-3-2. Yet if the government’s
broad conception of “sexual activity” were accepted,
then by virtue of that misdemeanor law a flasher in the
lobby of the federal courthouse in South Bend, if charged
under 18 U.S.C. § 2422(b), would be courting a prison
sentence of at least 10 years.
One possible inference from the absence of a statutory
definition of “sexual activity” is that the members of
Congress (those who thought about the matter, at any
rate) considered the terms “sexual act” and “sexual
activity” interchangeable. 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)). 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 unifor-
mity of substantively identical prohibitions, rather than
No. 10-2715 7
to broaden the offense in (b). H.R. Rep. No. 105-557, at
10, 20 (1998), reprinted in 1998 U.S.C.C.A.N. 678, 679, 688.
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. 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 (miscon-
duct involving no physical contact) to the draconian
penalties in subsection (b).
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.S.C. § 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 syn-
onyms—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.
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. But that is not
argued (it would make the express reference to prostitu-
tion in the statute redundant, though many statutes
are littered with redundancies), and anyway there is a
8 No. 10-2715
separate provision for enhanced punishment of sex-crime
recidivists. 18 U.S.C. § 2426.
The government argues that as a matter of ordinary
usage, “sexual activity” includes masturbation. 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. If “sexual activity”
is no broader than “sexual act,” it doesn’t include
solitary sex acts either. Congress elsewhere has de-
fined “sexually explicit conduct” to include masturba-
tion, but that’s in a statute (18 U.S.C. § 2256(2)(A)) that
criminalizes films and videos of children masturbating.
(Maybe the defendant in this case could have been
charged with attempting to produce child pornography
because he asked the supposed minor to masturbate
for him on her webcam. See 18 U.S.C. § 2252(a)(1), (b)(1).
She said she had no webcam.)
The government acknowledges that “sexual activity
for which a person can be charged with a criminal of-
fense” is explicitly defined to include producing child
pornography. 18 U.S.C. § 2427. Explicitly defining sexual
activity to include producing child pornography was
needed only if the term “sexual activity” requires con-
tact, since the creation of pornography doesn’t involve
contact between the pornographer and another person;
this is further evidence that “sexual activity” as used in
the federal criminal code does require contact.
Last the government cites cases in which courts have
referred to masturbation as a form of sexual activity. In
none was the question that this appeal presents raised.
No. 10-2715 9
In one the court treated “sexual activity” as a synonym
for “sexual acts.” United States v. Lee, 502 F.3d 447, 448
(6th Cir. 2007). In two others, United States v. Root, 296
F.3d 1222, 1235-36 (11th Cir. 2002), and 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. United States v. 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
unreported decision in United States v. Wales, 127 Fed.
App’x 424 (10th Cir. 2005), involved facts similar to
those of this case, but again masturbation was merely
assumed to be sexual activity within the meaning of
section 2422(b). In our case of United States v. Cochran, 534
F.3d 631, 634 n. 3 (7th Cir. 2008)—another case factually
similar to the present one—the question of the meaning
of the term “sexual activity” in section 2422(b) was
neither raised by the appellant nor answered by the court.
Finally, United States v. Womack, 509 F.2d 368, 372 n. 4 (D.C.
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. Masturbation is also a “sexual act” in
that sense, but not in the statutory sense.
To repeat our basic point: if “sexual activity” and
“sexual act” are synonymous in Title 18, as they appear
10 No. 10-2715
to be, then “sexual activity” requires contact because
“sexual act,” we know, does. We cannot be certain that
they are synonyms. Maybe our interpretation of section
2422(b) is no more plausible than the government’s. But
when there are two equally plausible interpretations of a
criminal statute, the defendant is entitled to the benefit
of the more lenient one. “[T]he tie must go to the defen-
dant.” United States v. Santos, 553 U.S. 507, 514 (2008);
see also Bell v. United States, 349 U.S. 81, 83-84 (1955)
(Frankfurter, J.). “This venerable rule [the ‘rule of len-
ity,’ as it is called] not only vindicates the fundamental
principle that no citizen should be held accountable for
a violation of a statute whose commands are uncertain,
or subjected to punishment that is not clearly prescribed.
It also places the weight of inertia upon the party that
can best induce Congress to speak more clearly and
keeps courts from making criminal law in Congress’s
stead.” United States v. Santos, supra, 553 U.S. at 514.
Congress will have to define “sexual activity” more
broadly than “sexual act” if it wants to bring the kind
of behavior engaged in by the defendant in this case
within the prohibition of section 2422(b) via the
fondling and child-solicitation offenses found in the
Indiana criminal code, when the defendant neither
made nor, so far as appears, attempted or intended physi-
cal contact with the victim. 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. For his more serious Indiana
offense (child solicitation involving use of the Internet,
No. 10-2715 11
which Indiana law treats as an aggravating circumstance),
he could be sentenced to eight years in prison by an
Indiana court. See Ind. Code §§ 35-42-4-6(b)(3), 35-50-2-
6(a).
The judgment is reversed with instructions to enter a
judgment of acquittal.
R EVERSED AND R EMANDED.
M ANION, Circuit Judge, concurring. The court has pre-
sented 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 be-
tween two people is excluded. I would not go so far
and equate the term “sexual activity” with “sexual act.”
Sexual activity is a broader term that includes things
sexual that do not involve the actual physical encounter.
I do, however, agree that there are serious problems
with this case: I do not believe that Jeffrey P. Taylor
could be successfully prosecuted for either of the Indiana
crimes that the government alleged he committed, and
for that reason, I respectfully concur with the court’s
judgment.
12 No. 10-2715
Under § 2422(b), the government must establish that
Taylor “induced” a minor “to engage in . . . any sexual
activity for which any person can be charged with a
criminal offense.” 18 U.S.C. § 2422(b). The government
alleged that Taylor could be charged with fondling
in the presence of a minor and solicitation. Ind. Code § 35-
42-4-5(c)(3) (“fondling”); Id. § 34-42-4-6 (“solicitation”).
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. Ind. Code
35-42-5-(c). At trial, Taylor’s defense was that he thought
the person “elliegirl1234” with whom he was having
these online conversations was an adult, and the idea
that he was engaging with minor was a fantasy. 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 § 35-42-5-(c). Although Taylor failed to
argue that his actions did not violate Indiana law,
I would still address the argument on plain-error review.
The Indiana statute does not qualify the term “presence”
with words like “actual” or “constructive”; it simply
states the adult must fondle himself “in the presence of”
a minor. And Indiana has not defined the term presence
in the statute. Black’s, however, defines presence as:
1. The state or fact of being in a particular place and
time . 2.
Close physical proximity coupled with awareness
.
No. 10-2715 13
Black’s Law Dictionary 1302 (9th ed. 2009). The Oxford
English Dictionary provides much the same definition:
“The place or space in front of or around a person;
the immediate vicinity of a person.” 12 Oxford English
Dictionary 392-93 (2d ed. 1989). Both definitions are
spatial; they refer to a person being in a particular
place with another individual. As a term in legal usage,
“presence” comes up most often in the crime of robbery.
In that context, a perpetrator must steal something
from the other person’s presence. Ind. Code § 35-42-5-1
(defining robbery as the taking of “property from
another person or from the presence of another person”).
Meaning: The property must be taken when the person
and the robber are in the same physical place—presence
cannot be divorced from physical proximity. Coates v.
State, 534 N.E.2d 1087, 1096 (Ind. 1989). Not surprisingly,
the concept of physical proximity has arisen in cases
under the Indiana fondling statute at issue here. One
Indiana court has stressed that the element of presence
does not mean the minor has to know about the
fondling; all it requires is that the child “be at the place
where the defendant’s conduct occurs.” Baumgartner v.
State, 891 N.E.2d 1131, 1138 (Ind. App. Ct. 2008) (emphasis
added). In the dictionary and as illustrated in the rob-
bery context and Baumgartner, presence is defined by
physical proximity.
Although Indiana courts have not addressed whether
the element of “presence” is satisfied by something other
14 No. 10-2715
than actual physical presence, other courts have.1
Georgia has a statute that is worded similarly to the
Indiana statute; it requires that the adult be “in the pres-
ence of” the child. Ga. Code § 16-6-4(a)(1). And Georgia
courts have held that conversations over phones and
webcams do not put the adult in the presence of the child.2
Likewise, the Court of Appeals for the Armed Forces has
held that neither a phone call nor a webcam constitutes
being in the presence of another person.3
1
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. United State v. Cochran, 510
F. Supp.2d 470 (N.D. Ind. 2008). And on appeal we specifically
noted that Cochran’s argument did not concern whether
he violated Indiana law. United States v. Cochran, 534 F.3d 631,
635 n.3 (7th Cir. 2008). So, Cochran is of no precedential or
persuasive value.
2
Vines v. State, 499 S.E.2d 630, 632 (Ga. 1998) (telephone);
Selfe v. State, 660 S.E.2d 727 (Ga. Ct. App. 2008) (webcam).
3
United States v. Knowles, 15 C.M.A. 404, 405 (C.M.A. 1965)
(telephone); United States v. Miller, 67 M.J. 87, 89 (A Ct. Crim.
App. 2008) (webcam). After the Knowles case the military code
was amended, and presence was clarified to only include
physical presence. A thorough review of this development
of the law on the issue of presence and technology is pre-
sented in Maj. Patrick D. Pflaum, Shocking and Embarrassing
Displays On-Line: Recent Developments in Military Crimes
Involving Indecent Conduct Via Webcam, Army Lawyer
(March 2010).
No. 10-2715 15
As a matter of common sense, most would agree with
those courts: electronic communications do not place
one person in another’s presence. When Taylor and
“elliegirl1234” communicated over Instant Messenger
they were not in one another’s presence. The same
would be said if they had that conversation over the
phone. The fact that a webcam is used does not change
the analysis. Taylor’s visual image on the computer
doesn’t make him anymore physically present than his
voice does—it just enhances the effect. See Selfe, 660
S.E.2d at 730 (noting “[b]ecause both telephone and
computer communications are by electronic transmis-
sions, we are unable to distinguish the two modes as
it relates to the necessity of ‘presence’ ”). 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.
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.4
4
E.g., State v. McClees, 424 S.E.2d 687, 689 (N.C. App. Ct. 1993)
(“Through the forces of modern electronic technology,
namely the video camcorder, one can constructively place
himself in the ‘presence’ of another.”); State v. Whitmore, ___
So.3d ___, 2011 WL 723158, *6 (La. App. Ct. 2010); State v. Every,
578 S.E.2d 642, 649 (N.C. Ct. App. 2003) (finding that use of
a telephone, “albeit arguably less than modern, renders
defendant constructively present under these circumstances.”
(emphasis added)).
16 No. 10-2715
Many, many courts have held this.5 But in those cases,
the courts have interpreted statutes that did not con-
cern “presence”; instead some other term is used,
usually the word “with.” 6 In those states, presence is not
an element of the offense; the prosecution only has
to prove that the adult’s actions would impair the
health and morals of the child.7 Indiana’s legislature
has, however, made “presence” an element of the offense.
5
E.g., Brooker v. Commonwealth, 587 S.E. 2d 732, 735-36 (Va. Ct.
App. 2003) (webcam); McClees, 424 S.E.2d at 689 (refusing “to
hold that the words ‘with any child’ ” require a defendant to
be “within a certain distance of, or in close proximity to the
child”); see also United States v. Izaguirre-Flores, 405 F.3d 270,
275 (5th Cir. 2005) (noting that for purpose of the sentencing
guidelines “[g]ratifying or arousing one’s sexual desires in
the actual or constructive presence of a child is sexual abuse
of a minor”); Rabuck v. State, 129 P.3d 861, 867 (Wyo. 2006)
(finding a video camera constitutes constructive presence);
People v. Lopez, 185 Cal. Rpt. 3d 232, 238-39 (Cal. Ct. App. 2010)
(finding a video camera constitutes constructive touching).
6
E.g., N.C. Stat. § 14-202.1 (criminalizing taking “any immoral,
improper, or indecent liberties with any child” (emphasis
added)); Va. Code 18.2 § 18.2-370 (punishing indecent exposure
when done “with any child” (emphasis added)); Wyo. Stat. § 14-3-
105(a) (providing, in pertinent part, “any person knowingly
taking immodest, immoral or indecent liberties with any
child . . . is guilty of a felony.” (emphasis added)).
7
Conn. Gen. Stat. § 53-21(a)(1); State v. Elliott, ___ A.3d ___,
2011 WL 871747, *4 (Conn. App. Ct. 2011) (finding that mastur-
bating over a webcam so a child can see would injure the
child’s morals).
No. 10-2715 17
It has not qualified the term with “actual or constructive,”
and if the term “presence” is expanded to include con-
structive and actual presence, that development should
not come from the courts, especially the federal courts.
In sum, for Taylor to be convicted of fondling under § 35-
42-4-5, the government had to prove that he was in
the presence of a child. Since a webcam did not place
him in the presence of “elliegirl1234,” Taylor could not
have been convicted of that offense.
The next issue is whether Taylor could have been
convicted under Indiana law for solicitation. While mas-
turbating over the webcam, Taylor also had a conversa-
tion with “elliegirl1234” over Instant Messenger, in
which he told her to touch and caress her vagina. 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. The only fondling that Taylor
solicited was for “elliegirl1234” to touch herself, apart
from him. That takes the case out of the typical solicita-
tion scenario where an adult solicits a minor to meet
and engage in sexual conduct, Laughner v. State, 769
N.E.2d 1147,1156 (Ind. Ct. App. 2002); Kuypers v. State,
878 N.E.2d 896, 898-99 (Ind. Ct. App. 2008), and makes
Taylor’s case unusual.
Under Indiana law, a person is guilty of soliciting a
minor if the person “solicits” the child “to engage in
18 No. 10-2715
(1) sexual intercourse; (2) deviate sexual conduct; or
(3) any fondling or touching intended to arouse or
satisfy the sexual desires of either the child or the older
person.” Ind. Code § 35-42-6. There are two ways to
read the statute: does the solicitation have to be for
“fondling” or “touching” with the other person, or does
simply instructing a person to do so apart from the
adult qualify. The first way would proscribe any solicita-
tion of a child to fondle herself, even if it is at a location
and time apart from the adult. So, under that reading,
a salacious letter that directed the minor to masturbate
would be a crime. The other construction would mean
that the solicitation would have to be for fondling with
the adult. These legitimate and competing readings
render the final element ambiguous.
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.
As the Supreme Court has cautioned, the rule that “a
word is known by the company it keeps, while not an
inescapable rule, is often wisely applied where a word
is capable of many meanings to avoid the giving of unin-
tended breadth of the [legislature].” National Muffler
Dealers Ass’n, Inc. v. United States, 440 U.S. 472, 486
n.20 (1979) (quoting Jarecki v. G.D. Searle & Co., 367
U.S. 303, 307 (1961)). A related rule of construction
dictates that when specific words of limited meaning
and application are followed by words of a more
general meaning, “the general words are to be con-
strued as including only those things that are like those
designated by the specific words.” Salter v. State, 906
N.E.2d 212, 220 (Ind. Ct. App. 2009).
No. 10-2715 19
Here, the statute proscribes soliciting a child to engage
in sex, deviate sex, and fondling. When someone solicits
sex and presumably deviate sex, it requires another
person—those acts cannot be done alone. Generally, when
someone solicits a child for sex it means that the adult
is soliciting the child to have sex with him, not that the
adult is encouraging the child to have sex apart from
the person doing the soliciting, or have sex as a general
matter. If we read the terms fondling and touching in
the same manner as sex and deviate sex, only fondling
and touching that is done with the other person would
be included, and not simply touching that occurs at a
person’s request but apart from the other person. This
would confine the statute to the typical scenario where
the adult seeks to meet the child to have sex with or to
fondle her. And it would not reach the situation of
the salacious letter. Indeed, adopting this sensible way of
reading the statute keeps us from giving it unintended
breadth. National Muffler Dealers Ass’n, Inc., 440 U.S. at 486.
Additionally, this reading is reinforced by the rule of
lenity, which instructs that “ambiguity in the meaning of
a statutory provision should be resolved in favor of the
defendant.” United States v. Turcotte, 405 F.3d 515, 535
(7th Cir. 2005). If the Indiana legislature wants to expand
the definition to include Taylor’s conduct, it can easily
do so without the ambiguity. And if the Indiana courts
face a similar case and interpret the statute expan-
sively, then it would be binding on us. But since there is
no similar Indiana case on this issue, I do not believe
the statute covers Taylor’s conduct.
20 No. 10-2715
Of course, the government is not obliged to wait for
Indiana to have a case on point before it can charge
Taylor with a crime under § 2422, but when Congress
chooses to define a crime by state law, federal pros-
ecutors cannot exceed the scope of the state law and
seek to punish conduct that is not illegal under the
statutes listed in the indictment—even though the
conduct is extremely disturbing. Here, the prosecutor
was free to charge Taylor with many other crimes; in
addition to the offenses pointed out by the court’s
opinion, the prosecutor could have charged Taylor
with at least two federal offenses. 18 U.S.C. § 1470 (at-
tempting to transfer obscene matter to a minor); 47 U.S.C.
§ 223(d)(1) (sending obscene images to a minor).
It bears noting one final reason for giving the solicita-
tion statute a limited reading. When this statute was
passed in 1984, Taylor’s conduct was unimaginable.
While law constantly trails crime, in the context of sexual
behavior and technology the problem is particularly
clear—the old laws will not do. The legislature has to
specifically address this lamentable behavior and deter-
mine what the law truly proscribes. Under our current
laws, with the advent and prevalence of “sexting”
and virtual sexual behavior, many, many citizens are
engaging in behavior that could make them felons. See
Jordan J. Szymialis, Sexting: A Response To Prosecuting
Those Growing Up with a Growing Trend, 44 Ind. L. Rev.
301 (2010) (a thorough article surveying the problem
No. 10-2715 21
and offering suggestions for the legislature).8 It is not
enough to let the courts figure it out and to try to see if
old definitions fit this new and troubling behavior.
In sum, although Taylor’s conduct was inappropriate
and extremely troubling, I do not believe it would consti-
tute a crime under either of the Indiana statutes listed
in the indictment. For that reason, I concur with the
court’s judgment.
8
See also Terri Day, The New Digital Dating Behavior—Sexting, 33
Hastings Comm. & Ent. L. J. 69 (2010); Robin Fretwell Wilson,
Sex Play in Virtual Worlds, 66 Wash. & Lee L. Rev. 1127 (2009)
(outlining how pedophiles use virtual worlds to solicit
children, and the rise of virtual sex); Federal Trade Commis-
sion Report to Congress, Virtual Worlds and Kids: Mapping the
Risks, 2009 WL 4755418 (F.T.C.) (giving recommendations
to Congress on how to combat the threat to children in
virtual worlds).
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