New Technology, Old Defenses: Internet Sting Operations and Attempt Liability

Abstract

Internet sting operations to catch adults preying on children have grown as exponentially as the public's use of the Internet. These operations typically involve an adult law enforcement officer posing as a child for Internet contact with a would-be defendant. Defendants caught in a sting are charged with attempt because by use of the sting operation, law enforcement has prevented the commission of the underlying offense against a child. These cases provide a contemporary opportunity to revisit some classic attempt liability issues. Part II of this article addresses the general principles of attempt liability, including a description of the doctrines of factual and legal impossibility and the rationale behind the historical treatment of these defenses. Part III describes recent Internet attempt cases, and Part IV analyzes issues raised by such cases. This article suggests that the new Internet cases provide further rationale for rejecting a distinction between factual and legal impossibility that would allow the latter to be a defense. This article also discusses issues surrounding the appropriate mens rea for attempt, and its applicability to Internet cases, where the defendants claim ignorance or indifference as to the age of the target of his advances. It suggests that attempt liability is appropriate only where there is proof the defendant believed that he was dealing with a child.