How the US Became the World’s Leading Jailer - Musings of a Trial Lawyer

In January, 2007, Mr. Joseph Smith, former US Army Sergeant, jumped into an online chatroom with various people. One of them was a thirteen year-old girl named Brianna. Brianna had posted pictures and Smith commented that she looked like eighteen, not thirteen years of age. The conversation moved quickly from small talk to sexual preferences. Smith then proceeded to give Brianna an online lesson in vaginal masturbation, setting forth a step-by-step failsafe procedure. A frenetic Smith turned on his webcam and he himself masturbated for Brianna online -- not one of the more wholesome uses of the internet as contemplated by its creator, the honorable Al Gore.

The fourth chat was another month later and was more specific as to Smith’s desire to have oral sex with Brianna, referring to the picture online and stating that he lived only a half hour away from her. Two innocuous chats occurred, then a chat on April 6 highlighting the joys of masturbation once again. Three more chats resulted in Smith giving out his cell phone number and soliciting text messages. The immaturity of such conversations -- “I miss u,” “hi sexy girl how did you get so sexy?” -- was astounding, even for an Army sergeant. Brianna baited the horned up sergeant, asking, “Where we would engage in such sexual situations?” to which he replied, “I don’t know... I’d get into big trouble if we got caught.” Another chat in May covered more intimate topics concerning the sexual organ of Mr. Smith and how to take care of it, this conversation occurring by texting on the cellular phone. Finally, Smith made the bold suggestion that they get together when school was out.

It turns out, naturally, that there was no Brianna. Brianna was fake bait, created online by a Special Agent for the Office of the Attorney General in Commonwealth of Pennsylvania. Bedroom Cop Dan Osinski had created a crime, and if it were up to him, Joe Smith was going to jail.

We should step back for a moment and analyze the crimes code. Having consensual sexual activity and making payment to your partner is a criminal offense [Prostitution 18 P.S. Section 5902]. Having sex per os (meaning, by mouth) is deviate sexual intercourse [18 P.S. 3101], as is the use of any digit (finger or toe) in foreplay, and as is sex per anus (sodomy). Vaginal sex is still not criminal so long as it is free, and penis goes directly into vagina. The missionary position is highly recommended to avoid any risk that the government would mistake the activity for per anus penetration, and for further safety, the anus should probably be taped over with an opaque adhesive. This would minimize the risk that such conduct could be deemed sodomatic. It is important to understand that masturbation is legal only if the actor is dreaming about his spouse, girlfriend, or neighbor’s spouse. It is criminal if the actor flashes a thought about a child under eighteen, a unicorn, or a whore. The law is unclear at the present time as to the use of cartoon images, so these too should be avoided until the legislatures take a firm position.

The last time I had looked, it was a defense to a criminal charge that the alleged crime was factually impossible. I remembered the old law school illustrations that there could be no crime or attempted crime when there was no subject of the criminal act. In other words, if an ashen-colored tree stump in the middle of a field takes on the precise image of the aged Senator from Pennsylvania, Arlen Specter, and a rabid fan of common decency holding a deer rifle decides that it is a perfect time to take the Senator out before he changes political parties again, and the actor shoots the tree stump dead, then there can be no crime because, in fact, all the actor did was shoot a tree stump. It makes no difference that the shooter believed and wished that the stump was the pompous Senator. Applying that logic to this case, I believed we had a defense. Sgt. Smith, despite his longing to masturbate before the eyes of a thirteen-year-old girl, in fact only masturbated before the longing eyes of Agent Osinski, a consenting adult who was clearly “asking for it.” But alas the legislature pre-empted this time-honored principle of common law when the child abuse statute was enacted, stating as follows:

“A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth: 1. Any of the offenses enumerated in Chapter 31 (sexual offenses), 2. Open Lewdness, 3. Prostitution, 4. Obscene and other sexual materials and performances as defined in section 5903, 5. sexual abuse of children as defined in section 6312, 6. sexual exploitation of children as defined in section 6320.

The obliteration of time honored defenses such as in the above true crime case, the creation of victimless crimes (such as above again), and the imposition of mandatory sentences by politicians (five years for child porn cases in federal court) has combined to lead the United States to the title as the world’s leading jailer.  If we lined up all of our prisoners who have committed a “crime” with no victim and lined up all the total prisoners of any other country (except Russia), the line of USA yardbirds would be longer.  Politicians have truly made a mess of our criminal justice system.