What is enticing a child under 16?
The Child Enticement Statute, M.G.L. c. 265, § 26C, establishes that it is a crime to entice (attract or tempt) a child under 16 with the intent of committing a crime. Possible crimes could include rape, assault, or indecent exposure.
What does the government need to prove to show I enticed a child under 16?
In order to prove a defendant GUILTY of the crime of enticing a child under 16 years old:
- That the alleged victim was a child under the age of 16 years old
- That the defendant enticed the alleged victim to:
- Enter a vehicle, dwelling, building, or outdoor space
- Exit a vehicle, dwelling, building, or outdoor space
- Remain within a vehicle, dwelling, building, or outdoor space
What if I did not intend on enticing the child?
The government must also prove beyond a reasonable doubt:
- That the defendant did so with the intent that he or she or another person would commit the offense of:
- Indecent assault and battery on a child under the age of 14
- Indecent assault and battery on a person with an intellectual disability
- An indecent assault and battery on a person 14 years or older
- Assault with intent to commit rape
- Assault on a child under 16 with intent to commit rape
- Inducing a minor to become a prostitute
- Open and gross lewdness
- Disseminating matter harmful to a minor
- Disseminating or possessing to disseminate obscene matter
- Posing or exhibiting a child under 18 in a state of nudity or sexual conduct
- Knowingly purchasing or possessing visual material of a child under 18 in sexual conduct
- Unnatural and lascivious acts with a child under 16
- Accosting or annoying a person of the opposite sex
- Common nightwalker or streetwalker
- Disorderly conduct
- Disturbing the peace
- Indecent exposure
- Keeping a noisy and disorderly house
- Lewd, wanton and lascivious conduct
- Engaging in sexual conduct for a fee
- Paying or procuring for sexual conduct
- Paying or procuring for sexual conduct with a child under 14
Moreover, in order to prove the first part of the offense, the government must show beyond a reasonable doubt that the alleged victim was a child who was under the age of 16 years, or a person who the defendant believed was a child under the age of 16 years.
Secondly, the Commonwealth must prove beyond a reasonable doubt that the defendant enticed someone to enter, exit, or remain within a vehicle, dwelling, building, or some outdoor space.
Thirdly, the Commonwealth must prove beyond a reasonable doubt that, by this enticement, the defendant intended to commit one or more of the above mentioned offenses or intended that someone else commit one or more of the above mentioned offenses.
What does it mean to entice?
To “entice” means “to lure, induce, persuade, tempt, incite, solicit, coax or invite” someone. A person may entice someone with words, gestures, or in other ways.
What if the person was not actually under 16 years old?
For this offense, the Commonwealth must prove beyond a reasonable doubt that the object of the defendant’s enticement was a person whom he or she believed to be a child under the age of 16.
What is specific intent and why is it required for this crime?
The third element of the offense requires a specific intent to commit one of the above listed crimes. Where the intended crime is a strict liability offense (i.e. absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault) such as rape or indecent assault of a child, to satisfy the third element the Commonwealth must prove that the defendant specifically intended to have sexual relations with (or commit assault on) an underage victim.
The Commonwealth does NOT need to prove that the defendant knew the exact age of the victim, but must prove that the defendant intended to direct his sexual advances to an underage victim (i.e. do the criminal act). Intending to have consensual sexual relations with another adult would not provide the requisite criminal specific intent for the third element, even if it turned out that the object of the defendant’s advances was in fact a child.
What if the child consented?
Consent is irrelevant for this crime. A child under the statutory age of consent (16 years old) is legally considered to be incapable of consenting.
Does the enticement need to be out in the open for me to be convicted?
NO, the statute forbidding enticing a child under 16 years old does NOT require an overt act but does require proof of specific intent to commit one or more of the above listed crimes.
The statute does not criminalize merely sending sexually explicit messages or saying indecent language, even to minors. Indeed, enticing a child without making any verbal reference to sexual matters at all does not violate the statute.
For example, in one case, Commonwealth v. LaPlante, the court ruled in a case prosecuting enticing a child with intent to kidnap, that merely offering the victim a ride and then saying in a “more demanding” and “sort of loud” voice, “Get in the truck”, were insufficient to prove that the defendant intended to forcibly confine the victim.
IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH ENTICING A CHILD UNDER 16 YEARS OLD, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.