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January 10, 2008

Judge Posner and sentencing the 30-year-old virgin

40year Writing on behalf of the Seventh Circuit, Judge Richard Posner is in fine form with his ruling in US v. McIlrath, No. 07-1266 (7th Cir. Jan. 10, 2008) (available here).  Though McIlrath covers some notable and important post-Booker legal ground in the course of affirming a within-guideline sentence, it is the facts of the case and Judge Posner's prose that makes McIlrath a must-read.  Here are just a few of many choice passages:

The defendant was 31 years old when he committed the crime and had no criminal record.   He was a loner who had not had sex until the previous year, with a woman who then rejected him, breaking his heart and (he claimed) precipitating the incidents with the 12- and (supposed) 15-year-old girls....

The defendant’s history and characteristics were relevant in possibly suggesting both that imprisonment would be a more severe punishment for him than for the average Internet sexual predator, which would argue for a lower prison sentence, and that he is less likely to repeat his crime than the average such offender, which would also argue for a lower prison sentence.  The first point goes to the retributive (“just punishment”) and general-deterrence factors in section 3553(a), the second to specific deterrence (to protect the public from further crimes by this defendant).  But neither was very persuasive.  As far as we know or the defendant’s lawyer or psychologist attempted to show, the average man who trolls for young girls in Internet chat rooms is no better adjusted than the defendant. It is true that a sexual interest in teenage girls is not abnormal in the sense that pedophilia is; any female of reproductive age is a natural object of desire on the part of a male, whether in our species or any other.  But the 12-year-old girl whom the defendant propositioned may well have been prepubescent, and he seemed not to care; and given that sex with 12- and 15- year-olds is deemed a very serious crime in our society, especially when the man is much older, a 31-year-old man who tries to seduce these young teenagers in Internet chat rooms is unlikely to be well adjusted.

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Interesting, as is the reliance on the judge's statement:

His statement that preying on minors with the aid of
the Internet is a serious problem is supported by a study that found that approximately one in five minors per year receives an unwanted sexual solicitation online, while one in 33 receives a more aggressive solicitation in which the offender asks to meet the minor or calls or sends him or her something. David Finkelhor, Kimberly J. Mitchell & Janis Wolak, “Online Victimization: A Report on the Nation’s Youth” 1 (National Center for Missing and Exploited Children June 2000), www.missingkids.com/en_US/publications/NC62.pdf (visited Dec. 4, 2007). Only 25 percent of those solicited told a parent about it, and only a fraction of the solicitations were reported to authorities. Id. at 4.

A study like this is like a Rubik's Cube because of the way it is worded. "1 in 5" sounds terribly alarming and I always wondered the source of that statistic, but some important facts are on the other side of the cube, out of sight. If the author wanted to, he could have made it less alarming and more factual. Some examples:

"Girls were targeted at almost twice the rate of boys (66% versus 34%), but given that girls are often thought to be the exclusive targets of sexual solicitation, the sizable percentage of boys is
important. (See Figure 1-2.)" p 2.

The implication is that "gay" men are soliciting boys, but the real answer is on another page:

"One-quarter of the aggressive episodes came from females." p 3.

"Adults were responsible for 24% of sexual solicitations (see Figure 1-4) and 34% of the aggressive solicitations." p 3.

What does that mean? That answer is elsewhere:

"Adults were defined as age 18 and older." p 2.

Adults were responsible for 24% of sexual solicitations (see Figure 1-4) and 34% of the aggressive solicitations.
• Most of the adult solicitors were reported to be ages 18 to 25. About 4% of all solicitors were known
to be older than 25.
• Juveniles made 48% of the overall and 48% of the aggressive solicitations.

So, if 48% are minors and only 4% are over 25, that leaves 48% that are under 25. 48% + 48% = 96%. So 96% of the problem is with those at or near to the same age as the minor. That hardly sounds like a 1 in 5 epidemic of adults preying on children. It is actually 4 in 100.

Rather than requiring an Internet driver's license, which is the real goal, wouldn't it be better to have an Internet for minors? We don't let them go into bars at all or into PG-13 movies without an adult. Or maybe the parents of younger children could watch them better.

One last thought. What are the chances that the self-defenses they learn on the Internet could actually teach them some virtual street smarts that keeps them out of more serious trouble in real life? There is probably some insurance calculation that could answer that, like jogging for longer life though some get hurt while jogging, but it's over my head.

Posted by: George | Jan 11, 2008 12:57:54 AM

"That hardly sounds like a 1 in 5 epidemic of adults preying on children."

So a 25 year old soliciting a 12 year old isn't an adult preying on a child? Or for that matter, a 21 year old soliciting a 15 year old?

Posted by: JustClerk | Jan 11, 2008 8:40:07 AM

JustClerk, I agree that the examples you give are morally reprehensible and certainly the kind of thing we should all be worried about, but the point of George's comment is that the study doesn't tell us how many of the solicitations it tracked are, say, male 25-year-olds soliticing female 12-year-olds and how many are female 18-year-olds soliticing male 17-year-olds. If you would agree that the latter type of solicitation is far less troubling than the former, then it seems like the actual age discrepancies involved in the solicitations tracked are incredibly relevant. But as George points out, the study submerges the actual discrepancies in order to produce the more shocking "1 in 5" statistic, which I think he demonstrates is probably an exaggeration, at least insofar as the statistic implies that 1 in 5 children are the victims of highly reprehensible behavior on the part of adults who are significantly older than them.

Posted by: Clerk | Jan 11, 2008 11:50:55 AM

I would agree with that except it's a completely inaccurate description of the study. It does not "submerge" anything. It's not drafted as sensationalistic -- all of the information George referenced is plainly there and not hidden in some obscure footnote.

If anything, you can fault Posner for pulling out the information as he did, but I think his reference is perfectly. No one seems to be quarreling with legitimacy of the numbers. The statistic doesn't say that 1 in 5 minors is solicited by a pedophile - it simply says that 1 in 5 receives an unwanted sexual solicitation. That statement alone says nothing specific about the recipient or the solicitor -- but to the extent the reader wants more information, Posner points them to the source.

Posted by: JustClerk | Jan 11, 2008 1:01:34 PM

For once I agree with George, the study is misleading. Plus, according to our best known sex offender risk factors, this guy seems a low risk. Didn't we used to say something in this country about proportional punishment?

Posted by: | Jan 12, 2008 12:18:59 AM

JustClerk, as Clerk points out, the age of 25 is the study's dividing line. Why 25? Why not each age up to 25?

It could be that 4 in 100 is still enough to justify the mandatory sentences, but my only point is that defense attorneys need to understand these statistics if the courts are going to rely on them. It is this kind of alarmist numbers that got us the 100 to 1 crack ratio.

Again, I think the real goal is an excuse to police the Internet when other, better solutions are available.

Posted by: George | Jan 12, 2008 12:38:42 PM

But, is a nearly 4-year sentence necessary in this guy's case to fulfill the aims of § 3553(a)?

Posted by: David in NY | Jan 15, 2008 5:11:47 PM

I think four years is well suited, its digusting that these guys prey on kids using the internet weaving their lies and deception,for that there is no excuse.

Posted by: Stephen (love the product) | Feb 21, 2008 8:08:39 AM

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