When cyber-predators are caught through online sting operations and found guilty of the underlying statutory violation, judges must look to the United States Sentencing Guidelines (\u201cSentencing Guidelines\u201d) to determine what sentences offenders will serve. One of the sentencing guidelines applicable to such cases is section 2A3.2, \u201cCriminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts.\u201d Section 2A3.2 is intended to apply to consensual acts between the defendant and the victim which are illegal due to the victim\u2019s age.
\nSection 2A3.2 includes a provision allowing for a sentencing increase, or \u201cenhancement,\u201d when the offender \u201cunduly influenced the victim.\u201d Section 2A3.2 specifically defines \u201cvictim\u201d to include \u201cundercover law enforcement officer.\u201d However, whether an online offender can \u201cunduly influence\u201d an undercover law enforcement officer remains unsettled. In 2002, in United States v. Root, the Court of Appeals for the Eleventh Circuit said an online offender can \u201cunduly influence\u201d an undercover law enforcement agent because of the specific inclusion of undercover officers in the definition of \u201cvictim.\u201d In 2003, in United States v. Mitchell, the Court of Appeals for the Seventh Circuit said an online offender cannot \u201cunduly influence\u201d an undercover officer because the language of the guideline requires sexual contact to occur before it can be applied. As law enforcement agencies are increasingly engaging in online sting operations to catch cyber-predators, the ambiguity of the guideline will continue to cause judicial confusion. Section 2A3.2 itself does not answer that question. Even though one of the primary goals of the Sentencing Guidelines is to eliminate sentencing disparity, imprecise and ambiguous guidelines like section 2A3.2 allow for disparate interpretations. Section 2A3.2 does not define \u201cundue influence.\u201d Specifically, section 2A3.2 does not indicate whether the offender need only exert undue influence, in which case the guideline is punishing the offender based on his culpability, or if the victim must actually experience and succumb to the offender\u2019s influence, which would mean that the guideline is punishing the offender based on actual harm caused. To resolve the ambiguity it is necessary to determine who section 2A3.2 is intended to punish\u2014the offender with wrongful intent or the offender who actually caused harm.
\nThis Comment explores the ambiguities of section 2A3.2 and analyzes the decisions in Root and Mitchell.<\/p>\n","protected":false},"excerpt":{"rendered":"
When cyber-predators are caught through online sting operations and found guilty of the underlying statutory violation, judges must look to the United States Sentencing Guidelines (\u201cSentencing Guidelines\u201d) to determine what sentences offenders will serve. One of the sentencing guidelines applicable to such cases is section 2A3.2, \u201cCriminal Sexual Abuse of a Minor Under the Age …<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[5,39,41],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/664"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=664"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/664\/revisions"}],"predecessor-version":[{"id":7759,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/664\/revisions\/7759"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=664"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=664"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=664"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}