Testing the Waters

A few years back, I was defending someone for failure to register as a sex offender. My client was required to registered because he had been convicted of a very nasty horrible disgusting tragic kind of rape. But, as far as his offense for "failure to register," he had a good defense, and I was thinking quite seriously about taking the case to trial.

I was concerned, though, that jurors, particularly women jurors, might have a hard time getting past the idea that my client was a "convicted sex offender. " I felt confident that the facts of that underlying rape case would never come out at trial, but I still worried that maybe jurors would have a difficult time acquitting a convicted sex offender, no matter what the circumstance.

While I was prepping the case, I was out to dinner with a few friends, who happened to be women of a very varied demographic - older, younger, mothers, married, single. Someone asked about how work was going, and I mentioned that I was working on this "failure to register as a sex offender" case. Right away, one of the women said that she didn't think it was such a big deal that my client was a sex offender. She said, "He could've just turned 18 before his high school girlfriend or something." And all of the other women agreed.

I thought to myself, "Wow, I really underestimated my jury pool." And, truthfully, they underestimated my client.

The case never went to trial, but that principle, that I don't always know exactly what regular people might think about a case, has stayed with me. That's one of the reasons that I often talk about my cases (generally, of course) with non-lawyer friends and family.

One of the things that we (criminal defense lawyers) talk about a lot is what "a case is worth." This is kind of the magical formula of taking the seriousness of the charge, together with the nature of the evidence (do they have you on tape or do they only have the word of a crackhead?), along with a person's criminal record or lack thereof, to determine whether a case is a good case for trial or what a fair plea would be.

It often surprises me what non-lawyer friends think a case is worth. Sometimes I'll tell a story, that ends with, "...and now he's doing 5 years" and people will react with shock and say, "You get 5 years for doing that???" Other times, I'll tell a story, and at the end people will say, "I bet he went to jail for a long time!" and I'll have to say, "No, he just did a one day anger management class."

This happens sometimes with clients too. I've had clients arrested for the first time, charged with something simple like shoplifting who will say, "I'm not going to prison, am I?" (Ummm, no, you're not. You can thank my amazing lawyering abilities.) And sometimes I'll have a jerk of a client, arrested for the 10,000th time, who will say, "Jail? Jail? It's not like I murdered someone!" (True, but no one ever said that you can only go to jail for murder, did they?)

All of this leads me to...

I wonder what you, my blog readers, think a case is worth.

I'll start with a fairly uncomplicated example. Here's the facts: 45 year old man, never arrested for anything, at all, in his life. He is happily married, has two beautiful children, a good solid, but not overly lucrative, job.

He did exactly what you see on Dateline. He chatted online with what he believed to be a "13 year old girl." The subject matter of the chats was very explicit, and he sent explicit photographs of himself to her. After a number of chats, he set up a time to meet the girl. He brought condoms and lubricant. He was arrested by police at the meeting place.

If you're a not a lawyer... What do you think would happen if he was completely cooperative with the police and wanted to plead guilty? What sentence do you think he would be likely to get? And, what sentence do you think would be fair? You can leave your comment below.

UPDATE: Lawyers are now invited to tell what they think this case is worth here (The Lawyers' Turn). I'd like to hear from the lawyers... What do you think the charges/sentence would be in your jurisdiction? I think it might also be interesting to see how this might vary across the country.

Non-lawyers, you might still like to read the "guesses" below (and leave your own guess, or thoughts, or whatever), before you go read the "answers" from the lawyers.


  1. As a lawyer who doesn't touch criminal law (or even practice law right now)... if he cooperated, pled guilty, and had never done anything like it before, I'd guess he gets probation and some sort of restriction on interacting with minors.

  2. I think he should serve some prison time. So he happened to get caught this time and claims he's never done it before and never would again--why would we believe him and let him off with probation or something? Not to mention someone who would consider having sex with a 13 year old is truly sick and, yes, a danger to society. But then again it's not like jail time is going to change how messed up he is. Maybe a year would drill it into his head that perhaps trying to seduce children over the internet, while tempting, isn't worth it?

    In any case, I hope his wife leaves him and gets those children far, far away from their messed up father. Poor family.

  3. also: happily married? And he's trying to have sex with 13-year-old children? Does not compute...

  4. I'd say a year in state jail, but here in Texas these guys are getting much more.

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  6. I'm a relatively new father of a girl so I'm sure that influences my opinion, but this has to be one of the worst crimes. How useful will it be to have a range of probation all the way to 20 years? Yeah, that's where I'm going 20 years. It's also possible I'm just trying to offset those people that suggested probation and trying to move the average higher.

  7. I do Bankruptcy law, so I don't know criminal. Being the victim was a minor, it was attempt, it had a violent sexual nature, and there was a lot of preparation/premediation; I would give him 5 to ten.

    I gave him a low sentance, because: he had no prior record and was able to manage himself other than this in society.

  8. I'm a law student. I'm guessing that he will get a short time in jail. Under a one year sentence and required to regsiter as a sex offender. I'm guessing that his willingness to plea and past history will help his cause.

  9. Non-lawyer here, and I'm guessing 3-5 years in prison along with having to register as a sex offender. One caveat though, depending on how overworked local prosecutors are he might get away with a significantly shorter sentence if there are factors surrounding his case that make a plea bargain look a lot better than a trial to the prosecutor. If he lived in Baltimore he's probably get away with probation, since our overburdened court system lets people who beat their children to death get away with sentences that are only a few years long.

  10. Hmmm...the psychology of the case doesn't compute for me. Who lives a clean life for 45 years and then does something like this? Ah, I'm probably just naive about these things. (Yeah, I know, in the week of the astronaut attack, anything is possible.) I don't know much about sentencing, but my gut feeling is that he deserves 5 to 10.

    As for what he actually gets...Let's see, Mike Tyson did 3 out of 6 for a completed rape. This is only an attempt, but the victim is a minor. There's a lot of documentation of his crime, but the victim doesn't actually exist, so no crying little girl on the witness stand...I'll guess 90 days jail, 5 years probation, and a lifetime registering as a sex offender.

  11. law school hopefulFebruary 08, 2007 11:21 AM

    I would hope he would get some jail time (I doubt he'd get prison if he didn't actually touch her, even with all of the supplies), but while I'd want him to serve time, I'd bet he'd only get probation, and 3-5 years at that. Perhaps he would have to register as a sex offender, depending on the plea (yes, I don't think this would go to court - despite chat logs and "supplies," the DA can't prove he WOULD have touched her, just that he had expressed interest in doing so).

    So I'm saying he gets 3-5 years probation, possible sex offender registry. But I think some jail time would do him good. Make him think twice.

    And the wife should leave his sorry butt.

  12. I'm a lawyer but no criminal law. I'd say a gets a low level misdemeanor, if he pleads guilty maybe it's only a violation. 90 days in jail tops, and 1-3 years probation.

    The wife should totally leave him.

  13. Looking at the facts: he didn't actually commit a criminal act even though he had the intention of doing it so it's just attempt. I think he shouldn't have to do time, but actually 5 years probation and he shouldn't have to register as a sex offender. Anyway, can't wait to see what you pros think because I'm just a regular chick, no law degree here. (I bet you can tell... Ja!)

  14. I have not read any of the other comments to try to not bias my answer with theirs.

    2 years suspended and has to register as a sex offender.

    The side affects of this will likely ruin his life. He will lose his job and likely his family.

    Since he did not actually harm a minor (in this instance) and cooperated fully, this should be enough punishment and risk of more (assuming 'suspended' means go to jail if you do it again) to protect possible future targets. If he really is a predator it will make it more like that he does get caught in a future instance and will receive much greater punishment.

    From the suburbs north of Atlanta.

  15. Okay, I do civil so all my knowledge of criminal comes from Law & Order, your blog, and the occassional Dateline. That's why I think depending on the jurisdiction, he did commit a crime by using the internet to solicit someone he thought was a minor and then making arrangements to meet her, even if he didn't actually "get to" molest her.

    The ickiness of this crime makes me say this:

    10-15 in jail with mandatory counseling the entire time and at least 5 years post-jail counseling.

    This is severely reduced for me because he cooperated and had no priors.

  16. I think he should serve some jail time. Since no prior record I would say 1 year or less but he needs to go to jail.
    And I would hope that his wife would leave him and take the kids too.

  17. Accountant, not lawyerFebruary 08, 2007 11:16 PM

    My guess is probation, no jail time, if he pled guilty. I think a jury would give him jail time. I went to law school, I'm not a lawyer.

  18. I'd guess time served (since his wife has initiated divorce proceedings and isn't bailing his sorry ass out), some sort of probation and 'treatment' program, and has to register as a sex offender.

  19. I have no idea what actually happens. But I don't think he belongs in jail. I remember being thirteen. Wrong as it may be to take advantage of a teenager's sexual curiosity, it's not like a thirteen year old is a completely passive sexual object.

    So I don't think he belongs in jail . . . Maybe counseling, but not jail.

  20. Due to the rise in sexual predators on the internet, I think jail time is required. People that are considering sex with a minor that they met online should be fully aware that the consequences will be severe.

    Lily, I have to disagree with your comment. A 13 year old may be curious, but that does not excuse the 45 year old in the least. The curious 13 year old doesn't have the capacity or maturity to actually consent to sex with some 45 year old they met online.

  21. *Non-lawyer, but do work in Entertainment law.

    I'd say 1 year jail and some sort of mandated therapy.

  22. As a non-lawyer (from the UK) I would guess that he would get a 5 year suspended sentence and made to register as a sex offender.

    What should he get? At least 5 years in jail.

  23. If he cooperated with the prosecution, I think he would get a suspended sentence of the jurisdictional minimum for that offense, mandatory aversion therapy, 12 step program for sex offenders and mandatory registration as a sex offender. No trial and he might not lose his job, depending on what kind of job he has.

    Other observations that I consider to be reasonable inferences:

    1. NOT actually happily married.

    2. But for those pesky police, he would have had sex with a 13 year old child.

    3. This is not the first time he has contemplated this type of behavior. This is likely not the first time he has chatted on line with what he believed to be underage girls.

    4. Condoms and lubricant pretty good circumstantial evidence that he WOULD have touched "her" if he hadn't been caught.

    5. Wife will likely not leave. Especially if his kids are young.

    I am a law school graduate currently studying for the California bar exam.

  24. Well. If if the year were 1807, they would end up happily married and have lots of kids. Twenty years ago, he would get 1-3. These days, 3-5, registered as a criminal, and in a few years he will probably be forced to have an RFID implant or a tatoo.

  25. I'd guess a couple of years in prison, maybe five years' probation after that, and sex offender registration.

    Anonymous: "If if the year were 1807, they would end up happily married and have lots of kids."

    Your point that our sense of the appropriate age for sexual involvement has changed it taken.

    However, I question whether a thirteen year-old married to a 45-year-old who is primarily preoccupied with having sex with her (not being her intimate in any fuller sense) and who is willing to betray his wife and two children to do it is really "happy," regardless of the date. The supposition that such women/girls *were* happy strikes me as being predicated on ignorance of the fact that European and American women had no choice, and no rights, in marriage for centuries at least.

  26. What it's worth depends on "where he is" - here in Central Texas, in County W, he would get 20-25 years jail time, registered sex offender, no contact with minors. In the adjacent County T, he would get two years probation, counseling classes, not required to register. What it's worth if I were on the the jury? Two years jail time, 15 years probation, registered sex offender, no contact with minor.

  27. You didn't say if he'd crossed state lines to go meet the "13" year old. If he did, I'm guessing a longer sentence.

    He Outta be shot.. but that's my gut talking and not my head.

    If I were on the jury, I'd want to hear the facts of the case. If guilty, then 5 years min and a life time of having to juggle where he goes, where he lives and where he works for a living.

  28. "So he happened to get caught this time and claims he's never done it before and never would again."
    We have this thing in our legal system where we try you for crimes you've done. Not one we imagine you could have done. Also, there is no victim. This 13 year old girl does not exist. Are there really 13 yr old girls on the internet looking for a 45 year old? That said I would give 2 yrs suspended. Some kind of counseling and registration.

  29. I'm a Navy JAG attorney - so I won't give my opinion yet.

    I did, however, poll the members of an administrative-separation board I sat on last Friday. None of these people were attorneys.

    The Senior member thought he should serve more than one year in confinement, but less than 5 years. The difference would be based on aggravating factors.

    The other two members thought the appropriate sentence was between 3-5 years of confinement.

    Obviously these people were contemplating some military-specific offenses. But it bears noting that the sentence recommendation was pretty much based on pleading guilty to attempted indecent acts with a minor, or alternatively attempted rape of a minor.

    3-5 years of confinement and sexual offender designation carried the day with these guys.

  30. Your hypo sounds like a stupid man who believed that consensual sex was possible even with 13 year olds. This debate exists in ethics/philosophy circles, but has no place in the law. A reasonable sentence would be therapy. He's not violent, just deeply confused, but he clearly needs to have his values adjusted.

  31. I am a mom..no lawyer experience here, but a couple of things stand out in this story.

    First of all, happily married men don't solicit sex from any aged woman on the internet.

    Second of all, he was a FATHER? Did anyone ask him how he might feel about one of his young daughters meeting someone his age for sex?

    Thirdly, he BELIEVED he was talking to a 13 yr old girl, so therefore he had INTENT and that means that when this mess is over, if he walks, the first place he's going to be is right back there on the internet chatting up some real 13 year old girls. And wouldn't it be just and EWWW kind of twist if he wound up chatting up his own daughter some how...ugh..all kinds of bad stuff comes to mind.

    As well, all this tends to make me believe that this wasn't the first time..it was just the first time he got caught.

    And even if he WAS happily married, I think that's probably a thing of the past.

  32. I'm not a lawyer of any kind. I have to say I'm a little skeptical. This may have been the first time he's gotten caught, but I'd be really, really surprised if this is the first time he's ever acted out.

    I'd say he should do some jail time, but since he's a first-time offender and a "fine, upstanding" citizen, he's probably going straight to probation. And registered sex-offender status. And to losing his family, his job, his friends, his standing in the community....

    Frankly, the people I'm really concerned about are his own kids. That's the corresponding tragedy of such a selfish act. Not only is his life is destroyed (he set himself up for that) but his actions have irrevocably harmed his family.

    I think he might do worse if he pleaded than if it went to a jury. I would think a jury might be swayed by the aw shucks, what was I thinking?/I didn't know she was only 13, I thought she was lying/hey they trapped me! defense. Then again, juries being what they are, he might do better.

  33. 5 years, 4 1/2 suspended, 10 years probation, register as sex offender, treatment. If it happens again, cut his #*#@ off.

  34. GA lawyer who only does civil work, so I'll throw in my 2 cents...

    My guess is he gets probation, maybe a suspended sentence of 2-5 years, registers as a sex offender for life. If he otherwise appears to be a respectable guy and he cooperates, I'm guessing the DA will cut him a break. If he offends again, they throw the book at him, which probably still only gets him a few years actually served.

    What he deserves is another question... maybe I'm jaded from having seen the Dateline specials, but my gut tells me that 99% of the guys who get caught doing this are stupid enough and/or sick enough to do it over and over again. Its a certain kind of person who seeks out a 13 year old, and I'm not sure I really believe you can counsel a person like that back to "normal". And prison certainly doesn't rehabilitate them. It probably just messes the person up more. In many ways, I think guys like this and other sexual predators rank right up there with murderers in terms of the severity of their crime and their danger to society.

    But my guess is that our justice system gives these guys relative slaps on the wrist.

  35. I am a criminal lawyer, so I'll refrain from my two cents on sentencing just yet. But I was curious about how the two met on the internet. Was your client directly solicited at his e-mail address? Was he solicited in an adult chat room setting? Or was he solicited in a child-oriented chat room which would suggest he might have been looking to interact with children. Thanks for any clarification you could give!

  36. I don't want to add too much to the hypo (since so many people have already weighed in), but I mentioned the Dateline chats in the original post, so I'll just elaborate on how they usually work:

    The "decoy" (under cover) is in a chat room, usually on AOL, usually called something like "Teen Hangout" (or something to that effect). They wait to be individually messaged. Sometimes those IMs start with a dirty question right away, other times they start by asking "age/sex/location?"

    She responds "13/F/(and the state where the operation is located)"

    She also has a profile that he can see (although we'll have no proof whether he saw it) that says her "name," her age as 13, her occupation as student, and her hobbies are things like, "hanging out with friends, ignoring my mom, talking on the phone, cheerleading."

    The undercover agent will take special care to mention the fact that "she's" 13 years old a few more times in the chat, or things like "gotta go, my mom's home" or "i have soooo much homework!" So that there's no chance the "target" can later say, "Oh, I just didn't notice her age."

  37. Considering our legal system, I'd say he got 2 days of community service picking up litter.

    What should he get? Bullet between the eyes. He would have had sex with a minor. He'll do it again. He cannot handle himself around kids. Take him out before he ruins a kid's life.

  38. I agree with Christine. Put him out of his misery. He'll probably get a fine, probation and it'll go on his record. They would have to build new prisons to corral all the damned perverts Dateline could come up with.

  39. brandongreensboroFebruary 17, 2007 5:03 PM

    if he is caucasion, he gets maybe 2 or 3 years probation and have to register as a sex offender, if he is of another race, he would probably get time (less than 6 mos. in county) plus probation and registration. I think a fair punishment would be mandatory counseling for 6 mos. and registration.

  40. I say "off with his head"
    I'm not a lawyer and have no personal knowledge of what sentencing a judge and jury may consider. I'm not even sure what the charge should be. It sounds like solicitation which probably is a misdemeanor and carries very little in the way of jail time or probation. However if you put this case in front of a jury and show them the correspondence. I think the jury would want to provide the stiffest penalty possible. If a jury had no guidelines as to sentencing and they could hand down whatever punishment they wanted I think they would ask for 7-10 years federal prison time and then register as a sex offender. Unfortunately, that's probably not the way it happens. This guy will probably be charged with a misdemeanor, something like solicitation, he will be required to register as a sex offender, but this is not a federal crime and will not serve any prison time, we are talking about local count jail now. If the judge has leeway in sentencing I think he could get 3-5 with 2 years suspended.

  41. I'm a law student just now taking Crim Pro, so i really don't know anything.

    I don't think he'll go to jail. Probation, registration as a sex offender, some mandatory counseling, etc etc. Wife should ditch him and take the kids. He will go through a painful and embarassing divorce and get screwed on the property division.

    but i live in Texas, so maybe they would lock him up.

  42. not a lawyer; don't even play one on TV (but I passed Crim Law)

    first, "happily married" does NOT coexist w/ sending explicit fotos to a 13-year-old, then buying condoms (probably the teensiest size, 'cause after all, what kind of frame of reference does a 13-year-old who's not a sex slave have?) and planning to meet

    he's got the mens rea, baby, so he can do the time

    what would his kids say???

  43. time to open it up to the crim lawyers yet?

  44. because he had no priors and fully cooperated i dont think he should get jail time. i think there is a big difference between people who are cooperative and not. it tells you who is capable of being rehabilitated. i think he does need counseling and if his wife decides to stay with him which i dont think it would be bad it really depends on their relaitonship they should also have family counseling. i think if he does get a sentence it should be a suspended sentence without having to register as there is lot of work that has to be done to our justice system. aside from this offense they law makes it almost impossible for criminals to be rehabilitated. they serve their time then make living impossible.

  45. What a good idea this post is! I'm a lawyer, but I'm a civil litigator so I'll post with the non lawyers and then go read the "answers."

    I'm guessing a couple of years in prison and registration as a sex offendor.

  46. i'd give him six-months' home confinement, five years' probation, and a program...he needs to understand the ramifications of what he was going to do. ... how would he like it if some other 45-year-old man was coming to meet his lovely daughter?

  47. Isn't 5 years mandatory just for sending the pictures? They may or may not add on to that for the other offenses. Now, to go see what the lawyers say.

    Cool blog, BTW.