Asking "u free tonight" not a substantial step under federal enticement statute

The Court of Appeals for the Armed Forces recently addressed whether a chat room conversation fell under the underage enticement statute by the question "u free tonight" being a substantial step. Finding it not to be, the decision was reversed. United States v. Winckelmann, 70 M.J. 403 (2011).

The defendant was charged with attempted enticement of a minor under 18 U.S.C. § 2422(b) (among other charges) for a chat room conversation in which he thought he was chatting with a 15-year-old male. When asked if he would have sex with 15-year-olds, he replied "if they want." After asking the "boy", "u free tonight", he told the boy, "e-mail me u want to get together."

The statute (in relevant part) allows fine and imprisonment not less than 10 years if one knowingly entices (or attempts to do so) any individual under age 18 to engage in sexual activity using a means of interstate commerce. Courts have held that the defendant must take a "substantial step toward enticement" in order to be guilty. United States v. Young, 613 F.3d 735, 742 (8th Cir. 2010); United States v. Barlow, 568 F.3d 215, 219 (5th Cir. 2009); United States v. Brand, 467 F.3d 179, 202 (2d Cir. 2006). "[T]he substantial step must 'unequivocally demonstrat[e] that the crime will take place unless interrupted by independent circumstances." United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007).

The Winckelmann court found that asking "u free tonight" was not a substantial step as "[t]here was no travel, no 'concrete conversation,' such as a plan to meet, and no course of conduct equating to grooming behavior."