Moore v. State

BATTAGLIA, Judge,

concurring.

I concur in the opinion and judgment. I feel compelled to write separately because of my dismay at the outcome of this case. The majority is correct in its interpretation of the language of Section 11-207 of the Criminal Law Article to encompass only those acts involving individuals under the age of 18 years, as defined in Section l-101(g) of the Criminal Law Article. Because of the limitation inherent in the language of the statute, law enforcement is deprived of a powerful tool in its fight to protect our children from online predators. There*648fore, I would urge the General Assembly to reconsider revising the language of Section 11-207 to include those scenarios where the defendant believed he was communicating identifying information about a minor. A slight change in the provision of the statute could enable law enforcement to prevent future victimization of children.

Title 18, Section 2422 of the United States Code governing federal law enforcement provides:

(b) Whoever, 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 engages in prostitution or any sexual activity for which any person can be changed with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less that 5 years and not more than 30 years.

18 U.S.C. § 2422(b) (emphasis added). The phrase “or attempts to do so” has been interpreted by the federal courts as permitting the prosecution of an individual under the statute in situations in which a law enforcement officer “poses” as a minor. See United States v. Powell, 1 F.Supp.2d 1419 (N.D.Ala.1998) (holding that the mere fact that the alleged victims were in fact not persons under the age of eighteen did not preclude conviction for the use of means of interstate commerce in attempting sexual contact with minors).

Alternatively, the General Assembly could consider adding language to Section ll-207(a)(5) expanding the scope of the statute to include the use of the Internet to disseminate identifying information for the purpose of engaging in sexual conduct with a minor, or a person believed to be a minor. This is the language contained in the computer pornography and child exploitation statute in Florida, which was determined to be sufficient to permit conviction where a law enforcement officer posed as a minor in an online chat room. See Karwoski v. State, 867 So.2d 486 (Fla.Dist.Ct.App.2004) (finding that sufficient evidence supported conviction for com*649puter child exploitation, even though purported victim was actually an undercover police officer).

Therefore, because of the consequences of our decision in the present case, I write separately to urge the General Assembly to act swiftly to enact language permitting law enforcement to deter those who prey upon our children.1

. As the majority notes, although the General Assembly has not amended Section 11-207 of the Criminal Law Article to apply to a scenario such as that in the present case, it has enacted Section 3-324 of the Criminal Law Article. See Md. Code (2002, 2005 Cum.Supp.), Sec. 3-324 of the Criminal Law Article. The language of the Section 3-324 does not appear as broad as the federal and Florida statutes.