Georgia Criminal Law Review

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Our Nation’s justice system values “equal protection under the law.” This represents the belief that all individuals should be treated equally under the law regardless of personal characteristics. Traditionally, we think about this in a context of things like race, gender, or ethnicity. However, this also encompasses the general idea that individuals nationwide should be accountable to and protected by the same laws. As it relates to criminal law, this notion highlights the importance of uniformity in a criminal justice system. Without consistent application and execution, a criminal justice system will never be fair or “equal.”

The federal child enticement statute, 18 U.S.C. § 2422(b), criminalizes the coercion or enticement of a minor to engage in “any sexual activity for which any person can be charged with a criminal offense.” The statute was initially enacted as part of the Mann Act to punish the prostitution of females, but it has since been expanded to target sexual harms against children regardless of gender and to account for the growing risk of online harms stemming from the rise in the Internet, social media, and other technology. Notably, the statute carries a 10-year mandatory minimum term of imprisonment.

When the statute was enacted, Congress did not provide a definition for the phrase “sexual activity.” As a result, a circuit split is emerging among the federal jurisdictions about how the term “sexual activity” should be properly interpreted. The Seventh Circuit is the only circuit thus far to hold that “sexual activity” as it is used in section 2422(b) requires interpersonal physical activity between individuals. Conversely, the Fourth and Eleventh Circuits held that “sexual activity” does not require interpersonal physical contact between individuals, so sexual crimes that only occur online could constitute an offense.

This Note argues that the proper interpretation of “sexual activity” is the broader definition endorsed by the Fourth and Eleventh Circuits that does not require interpersonal physical contact between individuals. First, this Note argues that this interpretation is more appropriate because it conforms with the traditional canons of statutory interpretation unlike the reasoning underlying the narrow interpretation endorsed by the Seventh Circuit. Second, this Note argues that the broader interpretation is necessary because children have become more vulnerable due to developments in technology and because of the COVID-19 pandemic. Third, this Note argues that by adopting a broader interpretation of “sexual activity,” section 2422(b) can serve as a stronger prosecutorial tool and will help fill in gaps in the justice system left by the federal trafficking statute codified in 18 U.S.C. § 1591. Lastly, this Note addresses potential problems with this interpretation and some solutions to address these.

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