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Handbook Cover for Treatise on Internet Sex Crimes

Chapter 1: Statutory Offenses

18 U.S.C. § 2422

COERCION AND ENTICEMENT

ELEMENTS OF THE OFFENSE

  1. The defendant used a facility or means of interstate commerce to (or attempt to) knowingly persuade, induce, entice, or coerce a person to engage in prostitution or sexual activity

  2. The person was less than 18 years old

  3. The defendant believed that the person was less than 18 years old

  4. If the sexual activity had occurred, the defendant could have been charged with the criminal offense of (offense)

INTENT

The intent required by the statute is to persuade, induce, or entice someone believed to be a minor to engage in sexual activity. The government is not required to prove that the defendant themself intended to engage in sexual activity with the minor.[1]


[1] United States v. Berg, 640 F.3d 239 (7th Cir. 2011)

INTERSTATE/FOREIGN COMMERCE

See our Common Terms section here.

SEXUAL ACTIVITY

The statute only covers “sexual activity” that involves physical contact between two people.[2]

The government is not required to prove that the defendant actually completed a sex act with the minor to support a conviction (even if the crime is not charged as an attempt).[3]


[2] United States v. Taylor, 640 F.3d 255 (7th Cir. 2011)

[3] Eighth Circuit Jury Instructions, United States v. Bailey, 228 F.3d 637, 638–39 (6th Cir. 2000)

PERSUADE/INDUCE/ENTICE/COERCE

The Seventh Circut ruled that the statute extended to communication between two adults that were designed to persuade a minor to commit forbidden acts.[4]

The Seventh Circuit has not yet taken a position on whether the jury must unanimously agree on the manner of persuasion, inducement, enticement, or coercion.[5]

It is not necessary for the government to prove that the minor was actually persuaded, induced, enticed, or coerced to engage in prostitution or sexual activity. However, it is necessary to prove that the defendant intended to engage in prostitution or unlawful sexual activity with the minor and knowingly acted toward bringing about said act.[6]

Persuade, Induce, and Entice “convey the idea of one person leading or moving another by persuasion or influence, as to action or state of mind.”[7]


[4] United States v. McMillan, 744 F.3d 1033 (7th Cir. 2014)

[5] Seventh Circuit Jury Instructions

[6] Eighth Circuit Jury Instructions

[7] Engle, 676 F.3d at 411 n.3

PROSTITUTION

“Prostitution” has been defined as “knowingly engaging in or offering to engage in a sexual act in exchange for money or other valuable consideration.”[8]


[8] Seventh Circuit Jury Instructions

ATTEMPT

Attempting to persuade, induce, or entice a minor to engage in a sexual act is criminalized under the statute.[8]


[8] U.S. v. Cote, 504 F.3d 682 (7th Cir. 2007)

SUBSTANTIAL STEP

In general, attempt requires the specific intent to commit a crime and a substantial step toward the commission of that crime.[9] When Congress uses a legal term such as “attempt,” the courts generally apply that accepted definition.

A substantial step is “more than mere preparation, yet may be less than the last act necessary before the actual commission of the substantive crime.”[10] The line between preparation and attempt is not always clear, requiring such determinations to be fact-specific.[11] It is not necessary for a substantial step to be the “last act” necessary before the completion of the crime, but rather must “strongly corroborate” a defendant’s intent to commit the offense.[12] Mere intent is not punishable as an attempt “unless it is also accompanied by significant conduct.”[13]

The Tenth Circuit found that a defendant who traveled to a prearranged meeting under the impression that he was meeting a 13-year-old girl with a firearm took a substantial step toward completion of his attempt offense.[14]


[9] United States v. Johnson, 376 F.3d 689, 693 (7th Cir. 2004); United States v. McLamb, 985 F.2d 1284, 1291 (4th Cir. 1993); United States v. Washington, 106 F.3d 983, 1004 (D.C. Cir. 1997); United States v. Munro, 394 F.3d 865, 869 (10th Cir. 2005)

[10] United States v. Martinez, 775 F.2d 31, 35 (2d Cir. 1985); United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)

[11] United States v. Coplon, 185 F.2d 629, 632 (2d Cir. 1950); United States v. Gaines, 969 F.2d 692, 697 (8th Cir. 1992)

[12] United States v. Mims, 812 F.2d 1068, 1077 (8th Cir. 1987); United States v. DeMarce, 564 F.3d 989, 998 (8th Cir. 2009)

[13] United States v. Resendiz-Ponce, 549 U.S. 102, 127 S. Ct. 782, 166 L. Ed. 2d 591 (2007)

[14] United States v. Munro, 394 F.3d 865 (10th Cir. 2005)

SENTENCING

Mandatory Minimums and Maximums

18 U.S.C. Section 2422:

  • Minimum: 10 years
  • Maximum: Not specified

Ex Post Facto

A defendant sentenced to the mandatory minimum prescribed by the PROTECT Act where there was a possibility that the jury convicted based solely on pre-PROTECT Act conduct resulted in an ex post facto violation.[15]

Excessive Sentences

The ten-year statutory minimum for persuading, inducing, enticing, or coercing a minor to engage in prostitution or any criminal sexual activity was not categorically disproportionate and therefore does not violate the Eighth Amendment.[16]


[15] United States v. Tykarsky, 446 F.3d 458 (3d Cir. 2006)

[16] United States v. Shill, 740 F.3d 1347 (9th Cir. 2014); United States v. Brucker, 646 F.3d 1012 (7th Cir. 2011)

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