MN court: Social media expands definition of criminal sexual conduct

Over the objection of its chief judge, the Minnesota Court of Appeals Monday broadened state law on what constitutes criminal sexual conduct beyond actual sex.

It ruled in the case of Brian Wilkie of Owatonna, who was caught in a sting after online conversations with a police decoy posing as a 14-year-old boy on Grindr. The decoy gave Wilkie his address — the decoy had said his mother wasn’t home — and when he showed up to engage in sexual conduct and opened the door, the police arrested him.

Is the evidence sufficient to prove that Wilkie took a substantial step toward committing third-degree criminal sexual conduct? The three-judge panel said it is.

The court said a person commits a crime when he “takes a substantial step” toward its commission, acknowledging that it isn’t written in any law, but is defined by other court cases.

In the appeal of his conviction, Wilkie notes “there was not physical contact, indecent exposure, attack, or other act tending but failing to accomplish the offense.”

Judge Louise Dovre Bjorkman acknowledged that other cases the court cited involved physical contact, but “actions that historically demonstrated a substantial step toward commission of a sex crime, such as preliminary physical contact, may no longer apply when social media is used to initiate the sexual encounter.”

The evidence shows that Wilkie orchestrated a sexual encounter with a juvenile through extensive social media contacts and phone conversations; the only purpose of their in-person meeting was to consummate the sex act itself—for Wilkie to “f–k” the juvenile.

Wilkie concedes that he intended to commit this crime. After exchanging sexually explicit messages and graphic photos, Wilkie arranged to meet with the decoy in private at a particular time and location. Wilkie obtained the decoy’s address, drove to the home at the agreed-upon time, confirmed the two would be alone in the home, parked his car, walked up the steps, and knocked on the door. At that point, the only thing left to take place was sexual penetration.

But Chief Judge Edward Cleary disagreed that the social media component of Wilkie’s encounter with the decoy constitutes a “substantial step” toward committing a crime.

His actions fell into the “mere preparation” category, Cleary argued in his dissent.

The appellant initially exchanged messages and photographs with the decoy on a social media application. After the communications continued, he arranged to meet the decoy at a certain time and location. He arrived at the agreed-upon location and knocked on the front door.

While these actions do constitute illegal solicitation of someone the appellant believed to be a minor, they amount to preparation for, not an attempt to commit, the act of third-degree criminal sexual conduct, a crime that involves “sexual penetration.”

Cleary acknowledged that social media has “changed the rules of courtship” in our society, but said, “such technological changes cannot be allowed to eviscerate constitutional protections in an effort to convict suspected sex offenders without sufficient proof of the elements of the crime charged.

In this case, a knock on the front door is insufficient to establish that the appellant took a substantial step toward committing a crime that requires sexual penetration.”

Cleary also said Wilkie’s conduct was “repugnant and illegal,” but he said other laws to prosecute him could have been used without expanding the definition of attempting to commit a crime.

  • Barton

    I wonder what the judge would have needed to reach “attempt?” Actual touching? It seems to me that he showing to do the items the two agreed upon online is an attempt. But then I understand social media, just like the other judges.

    • But since this is a published opinion, it now becomes case law.

      Previous case law, as noted, was all about actualy physical contact. So we have to think about how this might be applied in the future in different circumstances in which actual physical contact isn’t required to be charged with the crime.

      • Mike Worcester

        It will be interesting to see if the defendant takes his case to the full court of appeals or to the MN Supreme Court.

        • There are only three-judge panels in the court of appeals so that court’s work is done. MN Supreme Court is next stop. I don’t see how this doesn’t end up there.

          • Laurie K.

            With the COA establishing a new legal definition of “attempt” I would be very surprised if the MN Supreme Court did not review.

    • Jeff

      I didn’t read the detail, but where is the line? At what point is a substantial step? When he got in his car? Parked? Chatted? This seems arbitrary to me.

      Also, these sort of stings rub me the wrong way – law enforcement creating the circumstances for someone to break the law.

      • RBHolb

        The line is somewhat arbitrary. As a practical matter, it often hinges on what a jury regards as a “substantial step.”

      • wjc

        They arrested him after he came to the decoy’s house and entered it.

        I think they are saying that is a substantial step. Probably, if he had texted saying he wasn’t coming to the house, he would never have been arrested.

        • The decision does not indicate that opening the door constituted the substantial step per se, although that’s not nothing. The social media portion is what got the attention.

      • The line used to be physical contact. The court moved it with this section:

        The evidence shows that Wilkie orchestrated a sexual encounter with a juvenile
        through extensive social media contacts and phone conversations; the only purpose of their
        in-person meeting was to consummate the sex act itself—for Wilkie to “f–k” the juvenile.
        Wilkie concedes that he intended to commit this crime. After exchanging sexually explicit
        messages and graphic photos, Wilkie arranged to meet with the decoy in private at a
        particular time and location. Wilkie obtained the decoy’s address, drove to the home at the
        agreed-upon time, confirmed the two would be alone in the home, parked his car, walked
        9
        up the steps, and knocked on the door. At that point, the only thing left to take place was
        sexual penetration. Applying the principles articulated in Dumas, we conclude that
        Wilkie’s acts were not remote in time or location from the intended criminal sexual conduct
        and “directly tend[ed] in some substantial degree to accomplish” the crime. 136 N.W. at
        314. As in Johnson, we are not persuaded that the absence of more typical “amorous
        manipulations,” such as physical touch or in-person communication, defeats proof of an
        attempt offense. 67 N.W.2d at 642. And while we held in Meemken that the substantial
        steps leading up to a sexual offense need not be criminal in nature, we observe that Wilkie’s
        conduct in initiating contact and grooming the decoy to engage in sexual penetration were,
        in themselves, criminal acts.

  • Brian Simon

    If an adult went through those steps seeking such contact with my 12 year old daughter, would the court find me guilty of assault for beating the tar out of them on my front stoop?

  • joetron2030

    Setting aside whether the state’s Supreme Court will see this before them, I wonder how widely this ruling could be applied?

    The example that immediately came to mind was someone threatening to cause widespread harm (mass shooting, bombing, etc.) via social media. At what point does that go from “just talk” to that “substantial step”?

    Or maybe I’m reading too much into this decision and its application outside of this type of crime.

    • It can be applied wherever the judges allow it to, so, yeah, it’s hard to say. But you can bet it will be cited to justify a criminal charge/conviction is cases we never thought of.