MN court: Social media expands definition of criminal sexual conduct

Over the objection of its chief judge, the Minnesota Court of Appeals Monday broadened state law on what constitutes criminal sexual conduct beyond actual sex.

It ruled in the case of Brian Wilkie of Owatonna, who was caught in a sting after online conversations with a police decoy posing as a 14-year-old boy on Grindr. The decoy gave Wilkie his address -- the decoy had said his mother wasn't home -- and when he showed up to engage in sexual conduct and opened the door, the police arrested him.

Is the evidence sufficient to prove that Wilkie took a substantial step toward committing third-degree criminal sexual conduct? The three-judge panel said it is.

The court said a person commits a crime when he "takes a substantial step" toward its commission, acknowledging that it isn't written in any law, but is defined by other court cases.

In the appeal of his conviction, Wilkie notes “there was not physical contact, indecent exposure, attack, or other act tending but failing to accomplish the offense.”

Judge Louise Dovre Bjorkman acknowledged that other cases the court cited involved physical contact, but "actions that historically demonstrated a substantial step toward commission of a sex crime, such as preliminary physical contact, may no longer apply when social media is used to initiate the sexual encounter."

The evidence shows that Wilkie orchestrated a sexual encounter with a juvenile through extensive social media contacts and phone conversations; the only purpose of their in-person meeting was to consummate the sex act itself—for Wilkie to “f--k” the juvenile.

Wilkie concedes that he intended to commit this crime. After exchanging sexually explicit messages and graphic photos, Wilkie arranged to meet with the decoy in private at a particular time and location. Wilkie obtained the decoy’s address, drove to the home at the agreed-upon time, confirmed the two would be alone in the home, parked his car, walked up the steps, and knocked on the door. At that point, the only thing left to take place was sexual penetration.

But Chief Judge Edward Cleary disagreed that the social media component of Wilkie's encounter with the decoy constitutes a "substantial step" toward committing a crime.

His actions fell into the "mere preparation" category, Cleary argued in his dissent.

The appellant initially exchanged messages and photographs with the decoy on a social media application. After the communications continued, he arranged to meet the decoy at a certain time and location. He arrived at the agreed-upon location and knocked on the front door.

While these actions do constitute illegal solicitation of someone the appellant believed to be a minor, they amount to preparation for, not an attempt to commit, the act of third-degree criminal sexual conduct, a crime that involves “sexual penetration.”

Cleary acknowledged that social media has "changed the rules of courtship" in our society, but said, "such technological changes cannot be allowed to eviscerate constitutional protections in an effort to convict suspected sex offenders without sufficient proof of the elements of the crime charged.

In this case, a knock on the front door is insufficient to establish that the appellant took a substantial step toward committing a crime that requires sexual penetration."

Cleary also said Wilkie's conduct was "repugnant and illegal," but he said other laws to prosecute him could have been used without expanding the definition of attempting to commit a crime.

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