To Catch All Predators: Toward a Uniform Interpretation of "Sexual Activity" in the Federal Child Enticement Statute

The federal child enticement statute, codified at 18 U.S.C. § 2422(b), prohibits the use of interstate commerce to coerce a minor to engage in any illegal "sexual activity." Congress enacted the statute in response to the rising number and forms of sexual crimes committed against children, especially crimes facilitated via the Internet. However, Congress did not explicitly define the meaning of "sexual activity" in § 2422(b).Recently, several defendants have appealed their § 2422(b) convictions, asserting that they did not engage in "sexual activity" within the meaning of § 2422(b) because they never physically touched a child. In response to one of these appeals, the U.S. Court of Appeals for the Seventh Circuit, in United States v. Taylor, adopted a narrow interpretation of "sexual activity" that requires interpersonal physical contact between a defendant and a minor for culpability under the statute. However, the following year, the U.S. Court of Appeals for the Fourth Circuit expressly declined to adopt the Seventh Circuit's interpretation in United States v. Fugit. Instead, the Fourth Circuit broadly interpreted "sexual activity" as not requiring physical contact.This Comment argues that the Fourth Circuit in Fugit correctly interpreted "sexual activity" to not require interpersonal physical contact between a defendant and a minor. However, § 2422(b), as currently written, could lead some defendants to be subjected to an overly lengthy prison sentence relative to the severity of their underlying conduct. Congress should modify § 2422(b)'s penalty provision to prevent the potential for incongruous penalties. Until such amendment is made, courts should follow the Fourth Circuit's broad interpretation of "sexual activity."INTRODUCTIONImagine the following scenario1: Randall, an adult male, enters a Yahoo Internet chat room and sends a message to an individual using the screen name "daddysgrl.dc."2 The recipient, an undercover law enforcement officer, tells Randall that he is a thirteen-year-old girl named "Amanda."3 Randall and "Amanda" communicate online for two hours, during which time Randall sends "Amanda" several electronic, pornographic images of himself; asks if he can watch her urinate; and arranges to meet her at an agreed-upon location to engage in sexual intercourse.4 Randall then travels to the specified location, where he is arrested; later, the government charges him with enticing a minor to engage in illegal sexual activities in violation of federal law.5 But has Randall violated federal law?Prior to 2011, the answer to this question would almost certainly have been "yes."6 Today, however, the answer depends on whether the jurisdiction overseeing the defendant's case requires the defendant to engage in interpersonal physical contact with a minor to satisfy one of the elements of the federal child enticement offense.7The federal child enticement statute, codified at 18 U.S.C. § 2422(b), prohibits using interstate commerce to coerce people under the age of eighteen to engage in any illegal sexual activity or to attempt to arrange such an encounter.8 Defendants convicted of violating § 2422(b) "shall be fined . . . and imprisoned not less than 10 years or for life."9Federal prosecutors must import a state or federal statute criminalizing a "sexual activity" into § 2422(b) to establish the federal offense.10 Congress, however, has not defined "sexual activity"-one of the elements of the offense11-as the term is used in § 2422(b).12 Congress has only stated that "sexual activity" in § 2422(b) "includes the production of child pornography."13In recent years, several defendants convicted of violating § 2422(b) have argued that their conduct did not constitute "sexual activity" within the meaning of the statute because they did not touch children as part of their criminal activities but, instead, only communicated with children over the Internet or phone. For example, in United States v. …