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“Role Playing” in Cybersex Conversations Could be a Legitimate Defense in § 2422(b) Internet Solicitation Cases By: Houston Criminal Defense Lawyer John Floyd and Mr. On September 9, 2008 the United States Court of Appeals, Second Circuit, reversed the conviction based on an erroneous instruction the trial judge gave to the jury. After a seven-day trial in April 2006, a mistrial was declared when the jury was unable to reach a verdict.

On December 21, 2006 Dennis Joseph was convicted of violating § 2422(b) in the United States District Court for the Southern District of New York and sentenced to a term of 97 months in a federal prison. In August 2005, he was arrested for using the Internet to solicit a person he believed to be a minor to engage in sexual activity …

§ 2422(b) prohibits the use of a computer by an adult to send messages on the Internet to “persuade and entice” a person under 18 years of age to engage in sexual activity that constitutes a criminal offense. The Second Circuit outlined the facts of the case as follows: “Joseph is 40 years old, married, and has a six-year-old child.

“The evidence at the retrial included the following.

If jurors thought that Joseph only wanted to make ‘Julie’ think that sexual conduct with him would be appealing, but did not intend to entice her to engage in such conduct with him, they would have convicted him for having a cybersex conversation, which is not a crime, but not for violating section 2242(b).

“The risk of an improper conviction based only on the ‘more appealing formulation was heightened by the Government’s summation.

Of course, the jury did not have to credit his explanation, and the portions of his conversations that could be understood as intended to make the possibility of a sexual act with him ‘more appealing’ were evidence supporting an inference that he did intend to entice her.

But the offense remains ‘enticing,’ and making a sexual act ‘more appealing’ in the absence of an intent to entice is not a crime.

“Using the screen name ‘DSax25’ and describing himself as a 40-year-old professional musician, Joseph had approximately 50 instant message and email chats with Good, almost all of which he initiated. ’ ‘Lorie’ sent Joseph a picture, depicting Good at age 13 or 14 years.Over a defense objection, the prosecution was permitted to introduce pictures of young girls from the group.“The evidence thus framed for the jury the issue of whether Joseph enticed ‘Julie’ to meet with him for the purpose of engaging in unlawful sexual conduct with a person he thought was a minor, or whether, as he claimed, he was engaged only in role-playing, met her to determine her true identity, and had decided not to have any involvement with her if she turned out to be a minor.Joseph’s wife testified in support of that defense, telling the jury that her husband was addicted to role-playing on the Internet and had a particular interest in muscular women. He told the jury that “DSax25” was “an idealized version of what …

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She also informed the jury that her husband was a member of an Internet group called “Muscleteens” – a website that solicits pictures of muscular girls between the ages of 5 and twenty. Dennis Joseph can’t do but can on the [I]nternet.” He said he browsed the Internet looking for women bodybuilders and his attorneys offered 25 profiles of people on his “buddy list” [instant messenger’s “friends”], 21 of whom were adult female bodybuilders. Having laid the predicate for an interest in cybersex conversations, Joseph told the jury that when he encountered “Lorie,” he was in what he believed was an “adult sex themed” chat-room and that she was an adult posing as a teenager.He said she was too familiar with sexual terminology to be a real teenager so he surmised that she was part of a “make-believe, pretend world.” He told the jury that he also believed “Julie” was an adult engaged in the same kind of role-playing.