August 31, 2016

ABA YLD Takes on Cyber-Predators with Grooming Resolution

Breck Bednar was, in many ways, a typical 14-year-old boy.1 He performed well in school, did his homework, helped out with chores around the house, and was otherwise a nice person. In addition, like so many others his age, Breck loved online gaming. Breck’s school friends invited him to a participate in a “virtual clubhouse”—an online gaming group with a shared gaming screen, icons for the boys who were currently online, live messaging, and music or YouTube clips.

The “ringmaster” of this group, however, was not one of Breck’s school friends and not someone the group knew in real life. He passed himself off as a successful, multi-millionaire 17-year-old computer engineer who ran his own company. In real life, Lewis Daynes was none of those things. He was a cyber-predator—someone who uses the Internet and social media to take advantage of young people sexually, emotionally, psychologically, financially, or otherwise. Predators create trust and friendship where none in fact exists. Lewis Daynes spent months “grooming” Breck, couriering a secret phone to him, catering to his emotional needs, and pretending to be someone who cared about him in the hopes of earning his trust.

One day Lewis—in reality, an unemployed man who had previously been accused of raping a boy and possession of indecent images—achieved earning that trust. In February 2014, Lewis paid for Breck to take a taxi to his home. There, Lewis sexually assaulted and murdered Breck, photographed his body, and circulated the images to the members of their online gaming group. Lewis would later plead guilty to murder with sexual and sadistic motivation.

While it is too late for Breck, the American Bar Association Young Lawyers Division (ABA YLD) is taking on cyber-predators so that no more children fall prey to cyber-predators like Lewis. This year, the ABA YLD has drafted a Resolution, to be presented and debated during the assembly of the House of Delegates at the Annual Meeting in San Francisco, that urges state and territorial legislatures to enact, or strengthen existing laws, that criminalize electronic grooming tactics that target children and make them vulnerable to victimization. “Grooming” is a tactic used by cyber-predators like Lewis to manipulate young people they target online to meet with them offline.2 Grooming is particularly insidious because predators have proven savvy in using the latest technology and social media applications to target minors. The ABA YLD’s Resolution, which unanimously passed the ABA YLD Assembly at the ABA Midyear Meeting in San Diego, contains the following proposed statutory language:

A person commits an offense of grooming when he or she knowingly uses a computer on-line service, internet service, or any other device capable of electronic data storage or transmission, with the intent to seduce, solicit, lure, or entice, or to attempt to seduce, solicit, lure, or entice, a child to commit any sexual conduct prohibited by state law.

The foregoing language was crafted after members of the ABA YLD’s Public Service Team conducted an exhaustive 50-state survey to ascertain the present level of protections afforded to young people regarding the cyber-predator threat. That survey indicated that many states’ statutory regimes are wholly inadequate to protect children from people who use the Internet and social media to take advantage of them. My home state of Colorado is one example of a state whose current statute would not have protected Breck or prevented his death. Specifically, the relevant statutes provides:

Internet luring of a child.

(1) A person commits internet luring of a child if the person knowingly communicates a statement over a computer or computer network to a child under fifteen years of age, describing explicit sexual conduct as defined in section 18-6-403(2)(e), and in connection with the communication, make a statement persuading or inviting the child to meet the person for any purpose, and the person is more than four years older than the child.3

Colorado’s Internet luring statute is not sufficient to prevent predators like Lewis from the harm they inflict on children. Specifically, the Colorado statute requires that the communications describe “explicit sexual conduct” in order to be actionable. In Breck’s case, there were no sexual messages between him and the predator. Indeed, Breck understood their relationship to be one of two individuals sharing a mutual interest in technology. Colorado’s statute is also deficient because it does not necessarily prohibit grooming conduct that occurs on platforms and technology other than computers or computer networks. Thus, grooming that occurs in the course of online gaming or on smartphones may not be covered by the statute. Other state statutes are similarly deficient.4

Grooming statutes have faced challenges in the past, primarily under the “overbreadth” doctrine of the First Amendment. A statute is invalid as overbroad if it prohibits a substantial amount of protected speech.5 In an effort to ensure that states that adopt grooming legislation similar to that proposed by the ABA YLD are enacting statutes that comply with the U.S. Constitution, the Public Service Team has studied recent challenges to grooming statutes and addressed those potential concerns.

In Powell’s Books, Inc. v. Kroger, the Ninth Circuit addressed a statute that “criminalize[d] providing minors under the age of eighteen with visual, verbal, or narrative descriptions of sexual conduct for the purpose of sexually arousing the minor or the furnisher, or inducing the minor to engage in sexual conduct.”6 Ultimately, the Ninth Circuit ruled that the statute was “facially overbroad and criminalize[d] a substantial amount of constitutionally protected speech.”7 The court was particularly concerned that sexual education textbooks, romance novels, “coming of age” stories, historical/classical works, and similar content might become “contraband” under the statute because they could potentially arouse the natural curiosity that minors may have regarding sex.8

By contrast, the statutory language proposed by the ABA YLD does not purport to penalize the transmission of works or texts that have serious literary, artistic, political, or scientific value for minors. Rather, it is aimed at the intent of the predator to use the Internet and other electronic means for an unlawful purpose—to facilitate a sexual encounter with a minor. Thus, the ABA YLD’s proposed language is arguably narrower than the Colorado statute discussed above, which would criminalize the transmission of explicitly sexual content to a minor “for any purpose.” The ABA YLD’s focus is, as it should be, on the intent of the perpetrator to use electronic means to lure or entice a child to commit a sexual act.

The ABA YLD’s Resolution, in addition to proposing statutory language, also encourages states with existing legislation to revise or address deficiencies that allow cyber-predators to escape through the gaps. Colorado, for instance, can increase its protections against cyber-predators by amending the existing statute discussed above by eliminating the requirement that the transmission describe explicitly sexual conduct and requiring that the predator have the requisite intent to lure or entice a minor to commit a sexual act (as defined by state law). These changes would help ensure that young people like Breck have the necessary protections in place to prevent cyber-predators from preying on them using electronic means. Breck’s mother reached out to the police, but there was simply nothing they could do to help. There was no mechanism to intervene before Breck was brutally murdered. The ABA YLD’s Resolution aims to provide that mechanism, and to protect our children from cyber-predators.

Endnotes

1. The full facts and circumstances of Breck’s story can be found at http://www.theguardian.com/lifeandstyle/2016/jan/23/breck-bednar-murder-online-grooming -gaming-lorin-lafave.


2. Internet Safety for Kids and Families: How to Recognize Online Grooming, available at http://la.trendmicro.com/media/br/how-to-recognize-online-grooming-brochure-en.pdf.

3. Colo. Rev. Stat. § 18-3-306.

4. See, e.g., Ark. Code § 5-27-307(b) (requiring transmission of sexually explicit content, and only protecting children 13 and under).

5. United States v. Williams, 553 U.S. 285, 292 (2008).

6. Powell’s Books, Inc. v. Kroger, 622 F.3d 1202, 1207 (9th Cir. 2010).

7. Id.

8. Id. at 1213–15.